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Citation: 2004TCC518
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Date: 20040723
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Docket: 2001-4556(EI)
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BETWEEN:
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DORA MULE,
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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 ORDER
Mogan J.
[1] This appeal was to be heard at
Hamilton, Ontario on Friday, June 21, 2002. When the appeal was
called for hearing, the Appellant's agent and counsel for the
Respondent both stated their recent conclusion that this Court
did not have jurisdiction to decide the issue raised in the
Notice of Appeal. Following a lengthy discussion in Court,
counsel for the Respondent (Mr. Rhodes) undertook to provide a
written submission on the question of jurisdiction. I have had
the benefit of reading Mr. Rhodes' submission which was
received soon after June 21, 2002 but, unfortunately, was
mislaid.
[2] Because the question of
jurisdiction was a condition precedent to the hearing of the
appeal, no evidence was called although the Appellant,
Dora Mule, was in Court on June 21st. Accordingly, for the
purpose of setting out the basic facts, I shall rely on the
pleadings and a binder of eight documents submitted by counsel
for the Respondent plus certain statements made in Court on June
21, 2002.
[3] The Appellant was employed full
time as a cleaner by the Hamilton Wentworth Catholic District
School Board (the "School Board"). She worked at the
Cardinal Newman High School. The Saltfleet Public Library
(operated by the City of Stoney Creek) was located within the
high school building. During the regular school year, the
Appellant worked six hours each day (Monday to Friday) five hours
cleaning the school and one hour cleaning the library. From July
15 to September 5, 2000, the Appellant's working time was
reduced to one hour per day (Monday to Friday) cleaning only the
library because the school was closed. Apparently, she was paid
only by the School Board; and there was a separate arrangement
under which the Saltfleet Public Library paid the School Board
for cleaning services.
[4] On July 9, 2000, the School Board
issued a Record of Employment showing the Appellant's status
as "layoff" for the period July 15 to September 5,
2000. On the basis of that Record of Employment, the Appellant
filed a claim for unemployment benefits (Tab 4) under the
Employment Insurance Act (the "EI Act").
The Canada Employment Insurance Commission ("the
Commission") approved the claim and the Appellant received
unemployment benefits during the relevant period. In a letter
dated November 3, 2000, the Commission notified the Appellant of
its decision to cancel her claim for benefits on the basis that
she did not experience an interruption of earnings (seven
consecutive days without work or pay) prior to the start of the
claim period on July 17, 2000. As a result, the Appellant was not
authorized to receive unemployment benefits. The Commission also
noted that the Record of Employment showing her status as
"layoff" was issued in error. Therefore, the Appellant
was required to repay the benefits she had received for the
period July 15 to September 5, 2000.
[5] The Appellant appealed the
Commission's decision to a board of referees. On January 30,
2001, the Commission requested a ruling (Tab 1) from the Canada
Customs and Revenue Agency ("CCRA") on the question
whether the City of Stoney Creek was a separate employer. In
other words, did the Appellant have two employers in July and
August, 2000? On March 28, 2001, CCRA ruled (Tab 2) that the
Appellant was employed only by the School Board during the
relevant time; and that the Appellant did not experience
an "interruption of earnings" to entitle the Appellant
to benefits under the EI Act. The Appellant's
appeal to the board of referees was adjourned on April 19, 2001
to permit the Appellant to appeal to the Minister of National
Revenue from the CCRA ruling. The Appellant appealed to the
Minister pursuant to a letter dated June 22, 2001.
[6] On September 21, 2001, the
Minister confirmed (Tab 3) the ruling of March 28, 2001. By
letter dated December 17, 2001, the Appellant appealed to this
Court from the Minister's confirmation. It is in the context
of this appeal commenced on December 17, 2001 that I am required
to decide whether this Court has jurisdiction to review the
correctness of the Minister's confirmation, and perhaps
whether CCRA had authority to make its ruling. On page seven of
the Notice of Appeal (letter of December 17, 2001), the Appellant
raised two questions: whether the City of Stoney Creek was her
employer at any relevant time; and whether she had an
"interruption of earnings" from employment between
July 15 and September 5, 2000. At the hearing in Hamilton on
June 21, 2002, the Appellant's agent abandoned the first
question as to whether the City of Stoney Creek was the
Appellant's employer at any relevant time. Therefore, the
only remaining question is whether the Appellant had an
interruption of earnings.
[7] Within the EI Act, there
are two different methods for the resolutions of disputes
depending upon whether the subject of the dispute is (i)
entitlement to benefits; or (ii) insurability. I will consider
first entitlement to benefits.
Entitlement to Benefits
[8] The basic statutory provision is
section 7.
7(1) Unemployment benefits are
payable as provided in this Part to an insured person who
qualifies to receive them.
7(2) An insured person, other
than a new entrant or a re-entrant to the labour force, qualifies
if the person
(a) has had
an interruption of earnings from employment; and
(b) has had
during their qualifying period at least the number of hours of
insurable employment set out in the following table in relation
to the regional rate of unemployment that applies to the
person.
(Table omitted)
Under section 48, the Commission is authorized to determine
whether a person is qualified to receive benefits.
48(1) No benefit period shall be established
for a person unless the person makes an initial claim for
benefits in accordance with section 50 and the regulations and
proves that the person is qualified to receive benefits.
48(2) No benefit period shall be established
unless the claimant supplies information in the form and manner
directed by the Commission, giving the claimant's employment
circumstances and the circumstances pertaining to any
interruption of earnings, and such other information as the
Commission may require.
48(3) On receiving an initial claim for
benefits, the Commission shall decide whether the claimant is
qualified to receive benefits and notify the claimant of its
decision.
[9] Section 52 permits the Commission
to reconsider within a certain period of time a decision it has
previously made with respect to a claim for benefits.
52(1) Notwithstanding section 120, but
subject to subsection (5), the Commission may reconsider a claim
for benefits within 36 months after the benefits have been paid
or would have been payable.
52(2) If the Commission decides that a
person
(a) has
received money by way of benefits for which the person was not
qualified or to which the person was not entitled, or
(b) has not
received money for which the person was qualified and to which
the person was entitled,
the Commission shall calculate the amount of the money and
notify the claimant of its decision and the decision is subject
to appeal under section 114.
The appeal under section 114 referred to in subsection 52(2)
is to a "board of referees" as defined in subsection
2(1).
114(1) A claimant or other person who is the subject of
a decision of the Commission, or the employer of the claimant,
may appeal to the board of referees in the prescribed manner at
any time within
(a) 30 days
after the day on which a decision is communicated to them; or
(b) such
further time as the Commission may in any particular case for
special reasons allow.
The decision of a board of referees may, by section 115, be
appealed to an "umpire" as defined in subsection
2(1).
115(1) An appeal as of right to an umpire from a
decision of a board of referees may be brought by
(a) the
Commission;
(b) a
claimant or other person who is the subject of a decision of the
Commission;
(c) the
employer of the claimant; or
(d) an
association of which the claimant or employer is a member.
Insurability
[10] The basic statutory provision is
section 5:
5(1) Subject to subsection (2),
insurable employment is
(a)
employment in Canada by one or more employers, under any express
or implied contract of service or apprenticeship, written or
oral, whether the earnings of the employed person are received
from the employer or some other person and whether the earnings
are calculated by time or by the piece, or partly by time and
partly by the piece, or otherwise;
(b)
employment in Canada as described in paragraph (a) by Her
Majesty in right of Canada;
(c)
...
5(2) Insurable employment does
not include
(a)
employment of a casual nature other than for the purpose of the
employer's trade or business;
(b) the
employment of a person by a corporation if the person controls
more than 40% of the voting shares of the corporation;
(c)
...
In determining whether any particular employment is insurable,
the first request for a ruling comes under section 90.
90(1) An employer, an employee, a person
claiming to be an employer or an employee or the Commission may
request an officer of the Canada Customs and Revenue Agency
authorized by the Minister to make a ruling on any of the
following questions:
(a) whether
an employment is insurable;
(b) how long
an insurable employment lasts, including the dates on which it
begins and ends;
(c) what is
the amount of any insurable earnings;
(d) how many
hours an insured person has had in insurable employment;
(e) whether a
premium is payable;
(f) what is
the amount of a premium payable;
(g) who is
the employer of an insured person;
(h) whether
employers are associated employers; and
(i)
what amount shall be refunded under subsections 96(4) to
(10).
[11] After a ruling has been made under
section 90, further appeals are provided in sections 91, 92, 103
and 104.
91 An appeal to the
Minister from a ruling may be made by the Commission at any time
and by any other person concerned within 90 days after the person
is notified of the ruling.
92 An employer who
has been assessed under section 85 may appeal to the Minister for
a reconsideration of the assessment, either as to whether an
amount should be assessed as payable or as to the amount
assessed, within 90 days after being notified of the
assessment
103(1) The Commission or a person affected by a decision
on an appeal to the Minister under section 91 or 92 may appeal
from the decision to the Tax Court of Canada in accordance with
the Tax Court of Canada Act and the applicable rules of
court made thereunder within 90 days after the decision is
communicated to the Commission or the person, or within such
longer time as the Court allows on application made to it within
90 days after the expiration of those 90 days.
104(1) The Tax Court of Canada and the Minister have
authority to decide any question of fact or law necessary to be
decided in the course of an appeal under section 91 or 103 or to
reconsider an assessment under section 92 and to decide whether a
person may be or is affected by the decision or assessment.
Analysis
[12] As stated in paragraph 6 above, the
only remaining question is whether the Appellant had an
interruption of earnings. This is a principal qualification
spelled out in subsection 7(2). See above. The question of
whether a person has had an interruption of earnings from
employment is not one of the questions set out in subsection
90(1) - see above - which is the first step in granting
jurisdiction to the Minister (section 91) and then to the Tax
Court of Canada (section 103).
[13] On the facts of this appeal, the
Commission first determined that the Appellant was entitled to
receive unemployment benefits and those benefits were paid. Under
section 52 of the EI Act, the Commission reconsidered the
Appellant's claim, and decided that she did not qualify for
benefits because she did not have an interruption of earnings.
According to subsection 52(2), it is the decision of the
Commission which is subject to an appeal under section 114 to a
board of referees. The Appellant did in fact appeal to a board of
referees but the Commission then requested a ruling from CCRA on
the question of whether the City of Stoney Creek was a separate
employer. It was the Commission's request of CCRA which
started the Appellant down the track which led her to this Court.
See the facts summarized in paragraphs 5 and 6 above.
[14] Section 48 of the EI Act grants
jurisdiction to the Commission to decide whether a claimant is
qualified to receive unemployment benefits. The basic
qualification is whether the claimant has had an interruption of
earnings from employment. The ruling which the Commission
requested of CCRA (whether the City of Stoney Creek was a
separate employer) was incidental to the basic question of
whether the claimant had an interruption of earnings. Therefore,
the Commission had jurisdiction to determine whether the City of
Stoney Creek was a separate employer as part of its overall
jurisdiction to determine if there had been an interruption of
earnings.
[15] Within the EI Act, the
jurisdiction of this Court is based on sections 90, 91, 92 and
103. Whether a particular claimant has had an interruption of
earnings is not one of the questions set out in subsection 90(1).
Therefore, the Minister of National Revenue (in Part IV of the
EI Act) and this Court do not have jurisdiction to
determine whether a claiming has had an interruption of earnings
from employment. I will make an order quashing the appeal
herein.
Signed at Ottawa, Canada, this 23rd day of July, 2004.
Mogan J.
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