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Citation: 2004TCC352
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Date: 20040520
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Docket: 2003-2263(EI)
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BETWEEN:
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ESTHER CÔTÉ,
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Appellant,
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and
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THE MINISTER OF NATIONAL REVENUE,
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Respondent.
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REASONS FOR JUDGMENT
Savoie D.J.
[1] This
appeal was heard at Montréal, Quebec, on February 23, 2004.
[2] The
appeal is in regard to the Appellant's amount of insurable earnings and number
of insurable hours during her employment with the Centre d'économie en
chauffage Turcotte Inc., the Payor, during the period in question, May 7 to
November 30, 2001.
[3] On
March 17, 2003, the Minister of National Revenue (the Minister) informed the
Appellant of his decision that the insurable earnings and number of insurable
hours accumulated during the period in question were $3,140.92 and 282.75
hours.
[4] When
rendering his decision, the Minister relied on the presumptions of fact found
at paragraph 5 of the Reply to the Notice of Appeal, admitted or denied by the
Appellant as follows:
[translation]
(a) The Payor
operates a company that specializes in heating and air conditioning. (admitted)
(b) On May 7,
2001, the Appellant was hired as administrative assistant. (admitted)
(c) During the
period in question, the Appellant's earnings were paid at $10 an hour.
(admitted)
(d) Starting on
July 2, 2001, the Appellant was on work stoppage for a period of five weeks.
(denied)
(e) As a result,
on August 21, 2001, the Payor issued her a record of employment indicating insurable
earnings and insurable hours of $1,827.50 and 182.75 hours. (denied)
(f) On September
4, 2001, the Payor issued a second record of employment, indicating insurable
earnings of $73.10, attributed to 4% vacation. (denied)
(g) On November
12, 2001, the Payor issued a third record of employment, indicating insurable
earnings of $195.32, attributed to one week's notice. (denied)
(h) On or around
August 8, 2001, when the Appellant returned to work, the Payor advised her that
her position had been abolished and that she would be included on a call-back
list. (denied)
(i) From August
8 to November 30, 2001, the Appellant worked approximately 100 hours on behalf
of the Payor, performing various tasks including those of accounting clerk and
phone operator. (denied)
(j) On August
31, 2001, the Appellant filed a complaint with the Commission des normes du
travail. (admitted)
(k) Further to
this complaint, the parties settled the issue between them. (admitted)
(l) The Payor
gave the Appellant a gross lump-sum payment of $4,000. (denied)
(m) This payment
was established based on the hours the Appellant would have worked during the
period, which normally would have totalled 444 hours. (denied)
(n) When
establishing the insurable hours, the Minister considered that the hours
actually worked and for which the Appellant was paid totalled 282.75 hours:
(denied)
Period of
7/5/01 to 2/7/01: 182.75 hours
Period of
3/7/01 to 30/11/01: 100.00 hours
Total: 282.75
hours
(o) In
establishing the insurable earnings, the Minister added $1,000 to the amounts
indicated in the three records of employment the Payor issued, for $2,140.92.
The extra amount represented part of the lump-sum payment for the 100 hours the
Appellant worked: (denied)
Salary for
7/5/01 to 2/7/01: $1,827.50
Vacation:
$73.10
Notice:
$195.32
Salary for
3/7/01 to 30/11/01
(100 hrs x
$10.00): $1,000.00
Total: $3,140.92
(q)[sic]The
$3,000 representing the lump-sum amount was excluded from the insurable
earnings because it was paid following the loss of employment. (denied)
[5] At
the hearing, the Appellant made some clarifications to the Minister's
assumptions at paragraph 5 of the Reply to the Notice of Appeal. Regarding the
assumption at subparagraph 5(d), she stated that the work stoppage began on
July 3, 2001; regarding assumption 5(e), she stated that the record of
employment in question was not given to her before November 2001; regarding
assumption 5(f), she stated that this record of employment was only given to
her on November 9, 2001, after the mediation; regarding assumption 5(g), she
stated that this record of employment was given to her four or five days after
November 9, 2001, and added that she never resigned from her job; regarding
assumption 5(h), she stated that she was not advised of the restructuration of
the company or that her position was abolished and added that the Payor had
posted her position in the newspaper; this was a position for which she was
qualified; regarding assumption 5(i), she denied that she worked during this
period; regarding assumption 5(l), she stated that the $4,000 the Payor paid
was more than a lump-sum payment; regarding assumption 5(m), she stated that
she had the right to 476 insurable hours and $4,760 of insurable earnings
during the period in question. However, it must be noted that the Appellant was
already compensated for 444 hours, as shown by the document, "Leaving Slip
Transaction" (Exhibit I-1), which indicates that according to her own
calculations, the only period not recognized as insurable was 32 hours.
Moreover, she admitted she did not work during the period of August 8 to
November 30, 2001. The Minister's assumptions at subparagraphs 5(n), (o) and
(q) were established at the hearing.
[6] This
court ruled on a similar case, Moreau v. Canada (Minister of National
Revenue - M.N.R.), [2000] T.C.J. No. 280. It is relevant to cite Tardif J.,
who stated:
The facts in this case are very simple
and not the least bit confusing and do not lend themselves to interpretation.
They may be summarized as follows: the appellant's position was eliminated; the
time at which her employment was terminated coincided with the time when she
was able to resume her work. As she had worked for the same employer for 10
years, that employer, in a gesture of appreciation and cooperation, paid her
severance corresponding to three months' wages, believing, after checking with
the respondent's representatives, that this would qualify the appellant for
employment insurance benefits. It was admitted and acknowledged that this was
compensation, as the appellant had performed no work in consideration of this
lump sum amount.
Of course, the appellant and her employer
could have agreed to have her go to the office every day and perform various
tasks or duties during the period covered by the compensation, in which case
the hours put in would actually have been hours worked. The amount paid would
essentially have been wages paid for work actually performed or, in other
words, for hours actually worked.
However, both
the testimony and documentary evidence clearly show that this amount was
compensation equal to three months' wages paid in consideration of faithful
service rendered by the appellant to her employer over 10 years. The
appellant's case is especially compelling since she is in a way a victim of the
transition period resulting from the major changes to the Act.
This observation is unfortunately
insufficient to qualify the appellant for employment insurance benefits,
particularly since the Act is very clear.
[7] In
this case, the Appellant received $4,000 as a lump-sum payment considering the
hours worked during the period in question would normally have totalled 444.
These facts are established in the document, "Leaving Slip
Transaction" (Exhibit I-1) submitted at the hearing. This document, signed
by the Appellant and the Payor, constitutes a receipt and confirms the
Minister's assumptions at subparagraphs 5(l) and (m).
[8] In
her testimony, the Appellant presented many facts indicating her good will and
sincerity. It is certainly true that in other circumstances, she might have had
better luck, but although her case generates sympathy, the role of this Court
must not be confused with that of the Labour Board, where the Appellant had
filed a complaint. Further to that complaint, an agreement was entered into by
the Appellant and the Payor.
[9] The
duty of this Court, in this case, is to review the Minister's determination of
the Appellant's insurable hours and earnings. It is guided in this task by the
following legislative provisions:
Insurable Earnings and
Collection of Premiums Regulations
1.(1) The definitions in this
subsection apply in these Regulations.
“Act” means the Employment
Insurance Act. (Loi)
"Minister" means the
Minister of National Revenue. (ministre)
"pay period" means the
period in respect of which earnings are paid to or enjoyed by an insured
person. (période de paie)
"retiring allowance"
means an amount received by a person
(a) on or after
retirement of the person from an office or employment in recognition of the
person's long service, or
(b) in respect
of a loss of an office or employment of the person, whether or not received as,
on account or in lieu of payment of, damages or pursuant to an order or judgment
of a competent tribunal. (allocation de retraite)
[10] It was established that the Appellant received a $4,000 benefit as
compensation for the loss of her employment. Exhibit I-1 confirms this.
[11] Parliament clearly expressed requirements for "insurable
employment". Section 9.1 of the Employment Insurance Regulations states:
Where a person's
earnings are paid on an hourly basis, the person is considered to have worked
in insurable employment for the number or hours that the person actually worked
and for which the person was remunerated.
[12] In determining this case, the following, from subsection 2(2) of the Insurable
Earnings and Collection of Premiums Regulations must be considered:
…the total amount of earnings that an insured person
has…except for any unpaid amount that is in respect of overtime or that would
have been paid by reason of termination of the employment.
[13] The Minister's duty when making this determination is therefore not
arbitrary. In this Court's opinion, the Minister fulfilled his duty according
to the provisions of the Employment Insurance Act and the evidence
submitted at the hearing does not at all justify the Court's intervention in
the Minister's decision.
[14] The Court must therefore find that the amount of insurable earnings is
$3,140.92 and the number of insurable hours, 282.75.
[15] As a result, the appeal is dismissed and the Minister's decision is
affirmed.
Signed at Grand-Barachois, New Brunswick,
this 20th day of May 2004.
Savoie
D.J.
Translation
certified true
on this 31st day of
March 2009.
Elizabeth Tan,
Translator
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