Fortin v. M.N.R., docket 98-912-UI

Date: 19990728

Docket: 98-912-UI

BETWEEN:

GUY FORTIN,

Appellant,

and

THE MINISTER OF NATIONAL REVENUE,

Respondent.

Reasons for Judgment

Somers, D.J.T.C.C.

[1] This appeal was heard at Roberval, Quebec, on June 15, 1999.

[2] The appellant asked the respondent for a ruling on the question of how many hours he had worked from January 17 to March 16, 1997, from May 2 to 5, 1997 and from May 16 to June 8, 1997, while employed within the meaning of the Employment Insurance Act by J. Mafor Inc., the payer.

[3] The respondent informed the appellant of his decision that the appellant's insurable hours totalled:

[TRANSLATION]

226.80 hours from January 17 to March 16, 1997,

29.40 hours from May 2 to 5, 1997 and

109.20 hours from May 16 to June 8, 1997.

[4] In making his decision, the respondent relied on the following assumptions of fact which the appellant either admitted or denied:

[TRANSLATION]

(a) the payer is a subcontractor for Entreprises Forestières Donohue Inc.; (admitted)

(b) the appellant worked under a contract of service during the periods in issue; (admitted)

(c) he held the position of guard; (admitted)

(d) a guard's workweek runs from Friday at 7:00 a.m. to Monday at 7:00 a.m.; (denied)

(e) he was remunerated for three days of work and received three times the normal daily rate for his position; (admitted)

(f) in 1997, the daily rate for a guard was $137.27; (admitted)

(g) the appellant was supposed to live at the camp from Friday at 7:00 a.m. to Monday at 7:00 a.m.; (denied)

(h) the appellant did his rounds four times, once every four hours, at 7:00 a.m., 11:00 a.m., 3:00 p.m. and 7:00 p.m.; (admitted)

(i) the rounds lasted approximately one and a half hours each time; (denied)

(j) the rest of the time, he was supposed to stay at the camp in case a breakdown or an accident occurred; (admitted)

(k) the payer fixed the number of insurable hours a day for a guard at 8.4; (denied)

(l) the appellant claims that the payer should grant him 12 insurable hours of work per day. (admitted)

[5] The point for determination is how many insurable hours the appellant worked during the periods in issue.

[6] The appellant claims that the calculation should be based on the collective agreement governing him. According to that calculation, the number of insurable hours should be:

from January 17 to March 16, 1997, 324 hours

from May 2 to 5, 1997, 42 hours

from May 16 to June 8, 1997, 156 hours.

[7] Guy Demers, Donohue's personnel supervisor, wrote a letter dated November 20, 1997 which reads in part as follows:

[TRANSLATION]

The guard must report for work on Friday morning and remain there until Monday morning. During that work period, the guard must remain available 24 hours a day for any work requiring his intervention.

According to the collective agreement that is in effect, the guard's workweek runs from Friday morning to Monday morning, except during the Christmas holiday period, when operations are shut down, and on statutory holidays.

For this workweek, the guard is paid for three workdays and thus receives three times the regular daily rate for his position.

[8] At the hearing of this appeal, Guy Demers said that the payer was required to comply with Donohue's collective agreement in the area where that company operated. The hourly rate is fixed by the collective agreement for the employees working for the payer. Exceptions are applicable to a guard's work, which is the kind of work performed by the appellant.

[9] A guard is required to be on site 24 hours a day on weekends in case there is any kind of breakdown. The appellant testified that he had to be on site from 10:00 a.m. on Friday to 7:00 a.m. on Monday. He said that he worked 69 hours in one weekend. He admitted that in fact he did 12 hours of work a day, not 24. Rounds were done every four hours, at 7:00 a.m., 11:00 a.m., 3:00 p.m. and 7:00 p.m. During the periods in issue, the appellant went out only twice at night to attend to a breakdown.

[10] The daily rate in 1997 was $137.27. So, if the appellant had to work 24 hours a day, he would have been receiving $5.71 an hour. That rate of $5.71 an hour is thus unrealistic.

[11] The supervisor fixed the number of insurable hours a day for a guard at 8.4.

[12] The methods for determining insurable hours of employment are set out in section 10 of the Employment Insurance Regulations, which reads in part as follows:

10.(1) Where a person's earnings are not paid on an hourly basis but the employer provides evidence of the number of hours that the person actually worked in the period of employment and for which the person was remunerated, the person is deemed to have worked that number of hours in insurable employment.

[13] The payer and the employee were required to comply with section 10 of the Employment Insurance Regulations. The supervisor fixed the number of hours per day that the appellant actually worked at 8.4.

[14] Since it is the legislation that prevails, the appellant must accept the insurable hours as fixed by the supervisor.

[15] The Minister of National Revenue relied on section 10 of the Employment Insurance Regulations and section 91 of the Employment Insurance Act. For the periods in issue, the appellant's number of insurable hours totalled 226.80 from January 17 to March 16, 1997, 29.40 from May 2 to 5, 1997, and 109.20 from May 16 to June 8, 1997, that is, 8.4 hours worked per day, in accordance with section 10 of the Employment Insurance Regulations.

[17] The appeal is dismissed and the decision by the Minister is confirmed.

Signed at Ottawa, Canada, this 28th day of July 1999.

"J.F. Somers"

D.J.T.C.C.

[OFFICIAL ENGLISH TRANSLATION]

Translation certified true on this 31st day of May 2000.

Erich Klein, Revisor