Bylow v. M.N.R., docket 1999-3788-EI

Date: 20000327

Docket: 1999-3788-EI

BETWEEN:

CLAUDIA BYLOW,

Appellant,

and

THE MINISTER OF NATIONAL REVENUE,

Respondent.

Reasons for Judgment

Weisman, D.J.T.C.C.

[1]            The Appellant was a waitress at Northway Truck Stop in Parry Sound, Ontario from April 27, 1998 to September 10, 1998. She left this employment because of non-payment of remuneration. Her application for unemployment benefits was subsequently denied by the Respondent because she did not have sufficient insurable hours to qualify. She now appeals that determination to this Court.

[2]            The Appellant filed a complaint with the provincial labour authorities and was successful in receiving an order to pay against the employer. Unfortunately, due to inadvertence or otherwise, she failed to include in her complaint the unpaid earnings for some 68 hours that she claims to have worked. Without these 68 hours she does not qualify for unemployment benefits. The question is whether she can receive credit for these hours despite not having filed a complaint therefor with the provincial labour authorities.

[3]            Section 9.2 of the Employment Insurance Regulations[1] provides as follows:

"Subject to section 10, where a person's earnings or a portion of a person's earnings for a period of insurable employment remains unpaid for the reasons described in subsection 2(2) of the Insurable Earnings and Collection of Premiums Regulations, the person is deemed to have worked in insurable employment for the number of hours that the person actually worked in the period, whether or not the person was remunerated."

[4]            Subsection 2(2) of the Insurable Earnings and Collection of Premiums Regulations[2] provides as follows:

"For the purposes of this Part, the total amount of earnings that an insured person has from insurable employment includes the portion of any amount of such earnings that remains unpaid because of the employer's bankruptcy, receivership, impending receivership or non-payment of remuneration for which the person has filed a complaint with the federal or provincial labour authorities, except for any unpaid amount that is in respect of overtime or that would have been paid by reason of termination of the employment."

[5]            The Respondent argues that since there is no comma after the word "remuneration" in subsection 2(2) an insured person such as the Appellant must file a complaint with the federal or provincial labour authorities in order to receive credit for the number of hours that the person actually worked.

[6]            The contrary argument has 3 branches:

(i)             Parliament has used the word "reasons" in section 9.2. The "reasons" in paragraph 2(2) are fourfold: bankruptcy, receivership, impending receivership, or non-payment of remuneration.

(ii)            The words "for which the person has filed a complaint with the federal or provincial labour authorities" do not describe the four reasons. Whether or not one files a complaint has no bearing on the reasons the earnings remain unpaid.

(iii)           Had Parliament intended to make the filing of a complaint a precondition to the receipt of credit for insurable hours, it would have used language such as "in the circumstances described in paragraph 2(2)".

[7]            I am aware that the contrary argument leads to the questionable result that one must file a complaint with the federal or provincial labour authorities in order to receive credit for insurable earnings, but not for insurable hours.

[8]            I am also mindful of Wilson J.'s opinion in Abrahams v. A.G. Canada[3], with reference to the Unemployment Insurance Act:

"...Since the overall purpose of the Act is to make benefits available to the unemployed, I would favour a liberal interpretation of the re-entitlement provisions. I think any doubt arising from the difficulties of the language should be resolved in favour of the claimant."

[9]            I find accordingly that the Appellant is entitled to credit for the 68 hours that she claims to have worked but failed to include in her complaint to the provincial labour authorities.

[10]          The appeal is allowed.

Signed at Toronto, Ontario, this 27th day of March 2000.

"N. Weisman"

D.J.T.C.C.