Date: 20000420
Docket: 1999-238-EI
BETWEEN:
CAMILLE MASSICOTTE,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Reasons for Judgment
CUDDIHY, D.J.T.C.C.
[1]
This appeal was heard on March 15, 2000, at Montréal,
Quebec.
I-
The Appeal
[2]
The appellant (the "worker") has instituted an appeal
from the decision of the Minister of National Revenue (the
"Minister") of October 23, 1998 determining that
the amounts for compulsory annual vacation and statutory holidays
which were paid to the worker following his employment with
Transelec Inc., the payer, from June 19 to July 1, 1997
did not give rise to any insurable hours of employment for the
purposes of paragraph 5(1)(a) of the Employment
Insurance Act (the "Act") and
section 9.1 and subsection 10.1(1) of the Employment
Insurance Regulations (the
"Regulations").
II-
Summary of Facts
[3]
The respondent submitted the facts on which he based his decision
in his Reply to the Notice of Appeal. Paragraph 6 of his
Reply reads as follows:
[TRANSLATION]
(a)
the appellant worked for the payer as an electrician;
(b)
the appellant's working conditions were governed by four
sectoral collective agreements (hereinafter called the
"Decree") for the Quebec construction industry;
(c)
the appellant was remunerated on the basis of the number of hours
he worked;
(d)
on July 9, 1997, the payer issued to the appellant a record
of employment for the period from June 19 to July 1,
1997 indicating 139 insurable hours and insurable earnings
of $6,087.17;
(e)
the payer was required to remit to the Commission de la
construction du Québec a sum equal to 11% (hereinafter
called the "amounts") of the wages earned by the
appellant each week;
(f)
the 11% broke down as follows: 6% for compulsory vacation leave
and 5% for statutory holidays;
(g)
the amounts represented a percentage of wages earned;
(h)
under the sectoral collective agreement, the workers were on
vacation from July 13 to 26, 1997 and from December 21,
1997 to January 3, 1998;
(i)
there was no employer-employee relationship between the appellant
and the payer during the compulsory vacation periods provided for
under the sectoral collective agreement;
(j)
the Commission de la construction du Québec was required
to pay the amounts to the appellant on the dates provided for in
the sectoral collective agreement;
(k)
when on leave, the appellant was not paid by the payer but by the
Commission de la construction du Québec;
(l)
the appellant received no remuneration from the payer during the
compulsory vacation periods.
[4]
Through his counsel, the appellant admitted the facts alleged in
subparagraphs (a) to (j) and (l) and denied
subparagraph (k).
III-
The Law
[5]
Definitions in the Employment Insurance Act
"employment"
"employment" means the act of employing or the state
of being employed;
"insurable earnings"
"insurable earnings" means the total amount of the
earnings, as determined in accordance with Part IV, that an
insured person has from insurable employment;
"insurable employment"
"insurable employment" has the meaning
assigned by 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;
. . .
[6]
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)
. . .
"pay
period"
means the period in respect of which earnings are paid to or
enjoyed by an insured person. (période de paie)
. . .
Earnings from Insurable Employment
2. (1) For the purposes of the definition "insurable
earnings" in subsection 2(1) of the Act and for the purposes
of these Regulations, the total amount of earnings that an
insured person has from insurable employment is
(a) the total of all amounts, whether wholly or partly
pecuniary, received or enjoyed by the insured person that are
paid to the person by the person's employer in respect of
that employment, and
. . .
(2) 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.
(3) For the purposes of subsections (1) and (2),
. . .
[7]
Employment Insurance Regulations
PART I
UNEMPLOYMENT BENEFITS
Hours of Insurable Employment - Methods of
Determination
9.1 Where a person's earnings are paid on an hourly
basis, the person is considered to have worked in insurable
employment for the number of hours that the person actually
worked and for which the person was remunerated. SOR/97-31, s.
3.
9.2 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.
SOR/97-310, s. 2.
. . .
10.1 (1) Where an insured person is remunerated by the
employer for a period of paid leave, the person is deemed to have
worked in insurable employment for the number of hours that the
person would normally have worked and for which the person would
normally have been remunerated during that period.
(2) Where an insured person is remunerated by the employer for a
period of leave in the form of a lump sum payment calculated
without regard to the length of the period of leave, the person
is deemed to have worked in insurable employment for the lesser
of
(a) the number of hours that the person would normally
have worked and for which the person would normally have been
remunerated during the period, and
(b) the number of hours obtained by dividing the lump
sum amount by the normal hourly rate of pay.
(3) Where an insured person is remunerated by the employer for a
non-working day and
(a) works on that day, the person is deemed to have
worked in insurable employment for the greater of the number of
hours that the person actually worked and the number of hours
that the person would normally have worked on that day; and
(b) does not work on that day, the person is deemed to
have worked in insurable employment for the number of hours that
the person would normally have worked on that day. SOR/97-31, s.
5
10.2 For the purposes of sections 9.1, 10, 10.1 and 22,
(a) an hour of work performed in insurable employment
is considered to be a single hour of insurable employment, even
if the hour is remunerated at an overtime rate of pay; and
(b) if the addition of hours of insurable employment
falling between the first day and the last day worked in a given
period of employment results in a total number of hours that
contains a fraction of an hour, the fraction shall be counted as
a whole hour. SOR/97-31, s. 5.
. . .
[8]
COLLECTIVE AGREEMENT, INSTITUTIONAL AND COMMERCIAL
SECTOR
[TRANSLATION]
SECTION XIX
COMPULSORY ANNUAL VACATION, STATUTORY HOLIDAYS AND PAY RELATED
THERETO
19.01 Compulsory annual
vacations: Each year, every employee is entitled to four
weeks' compulsory annual vacation to be taken as follows:
(1)
Summer: All construction job sites must close down during
the last two full calendar weeks in July, more specifically
between the following dates:
.
between 0:01 hours on July 13, 1997 and
24:00 hours on July 26, 1997.
. . .
(3)
Winter: All construction job sites must be closed down for
two full weeks during the Christmas and New Year's holiday
period, more specifically between the following dates:
.
between 0:01 hours on December 21, 1997 and
24:00 hours on January 3, 1998.
. . .
Emergency work during compulsory annual vacations:
. . .
Prohibited work, permitted work and repair and maintenance
work during compulsory annual vacations:
. . .
Statutory holidays:
. . .
19.05 Pay for
compulsory annual vacations and statutory holidays:
(1)
Amount of pay: At the end of each week, the employer shall
credit to each of its employees, as pay for compulsory annual
vacation and for statutory holidays, an amount equal to 11% of
wages earned during that week, that is, 6% for compulsory annual
vacation and 5% for statutory holidays.
(2)
Employer's obligation: The employer shall remit with
its monthly report to the Commission the amounts credited to each
of its employees.
(3)
Reference periods: There are two reference periods:
(a)
from January 1 to June 30, and
(b)
from July 1 to December 31.
(4)
Payment of amount for compulsory annual vacation and statutory
holidays:
(a)
The Commission shall pay the employee the amount collected for
the first reference period by means of a cheque sent by mail to
the employee's last known address in the last eight days of
November of the current year.
(b)
The Commission shall pay the employee the amount collected for
the second reference period by means of a cheque sent by mail to
the employee's last known address in the last eight days of
June of the following year.
(c)
No person may claim the pay for compulsory annual vacation and
statutory holidays before December 1 or July 1, as the
case may be.
(d)
Notwithstanding subparagraph (c), upon the death of an
employee, that employee's legal heirs may claim his pay for
compulsory annual vacation and statutory holidays.
19.06 Interest:
Interest on amounts collected in respect of compulsory annual
vacation and statutory holidays which are not used for the
purposes and within the limits permitted by law shall be paid to
the employee in proportion to the amounts that employee
receives.
. . .
[9]
The appellant worked for the payer as an electrician.
[10] The
appellant was remunerated on the basis of the number of hours he
worked.
[11] The
appellant's working conditions were governed by the sectoral
collective agreement for the Quebec construction industry
(Exhibit A-1).
[12] The payer
was required to remit an amount equal to 11 percent of the
wages earned by the appellant each week to the Commission de la
Construction du Québec.
[13] This
amount represented a percentage of the wages earned, that is,
6 percent for compulsory annual vacation and 5 percent
for statutory holidays.
[14] Under the
sectoral collective agreement, the workers were on vacation from
July 13 to 26, 1997 and from December 21, 1997 to
January 3, 1998.
[15] On
July 9, 1997, the payer issued a record of employment to the
appellant for the period from June 19 to July 1, 1997,
indicating 139 insurable hours and insurable earnings of
$6,087.17.
[16] The
Commission de la Construction du Québec was to pay the
appellant the amounts remitted on the dates provided for in the
sectoral collective agreement.
[17] There was
no employer-employee relationship between the appellant and the
payer during the compulsory vacation periods provided for in the
sectoral collective agreement.
[18] The
appellant received no remuneration from the payer during the
compulsory vacation period.
[19] During
the compulsory vacation period, the appellant received the
amounts described above from the Commission de la construction du
Québec.
Appellant's Arguments
[20]
Michel Letreiz, counsel for the appellant, submitted his
arguments, then filed with the Court a written brief succinctly
setting out the appellant's point of view as follows:
[TRANSLATION]
The point at issue in the instant case is whether a worker
governed by a collective agreement negotiated under the Act
respecting labour relations, vocational training and manpower
management in the construction industry may be credited with
hours of insurable employment for the remuneration paid to him as
pay for annual leave (vacation) and statutory holidays.
This question has arisen since the coming into force of the
Employment Insurance Act (S.C. 1996, c. 23) amending
the eligibility for benefit regime, which is now based on the
number of hours of insurable employment rather than the number of
weeks of insurable employment.
Parliament has moreover deemed it necessary to specify, by
regulation, certain methods for establishing hours of insurable
employment, in particular as regards the remuneration paid for
vacation and statutory holidays.
Section 10.1 of the Employment Insurance
Regulations (SOR/96-332) provides:
10.1(1) Where an
insured person is remunerated by the employer for a period of
paid leave, the person is deemed to have worked in insurable
employment for the number of hours that the person would normally
have worked and for which the person would normally have been
remunerated during that period.
(2)
Where an insured person is remunerated by the employer for a
period of leave in the form of a lump sum payment calculated
without regard to the length of the period of leave, the person
is deemed to have worked in insurable employment for the lesser
of
(a) the number of hours that the person would
normally have worked and for which the person would normally have
been remunerated during the period, and
(b) the number of hours obtained by dividing the
lump sum amount by the normal hourly rate of pay.
(3)
Where an insured person is remunerated by the employer for a
non-working day and
(a) works on that day, the person is deemed to
have worked in insurable employment for the greater of the number
of hours that the person actually worked and the number of hours
that the person would normally have worked on that day; and
(b) does not work on that day, the person is
deemed to have worked in insurable employment for the number of
hours that the person would normally have worked on that day.
Thus it may be seen from a simple reading of these provisions
that Parliament clearly intended that workers be credited with
hours of insurable employment in respect of remuneration paid to
them for vacation and statutory holidays.
A question thus arises as to the application of these
provisions to the amounts received by construction workers in
Quebec under the sectoral collective agreement applicable to
them. It should be pointed out briefly that, in recent years, the
Construction Decree, which was applicable to all construction
workers, has been replaced by four collective agreements, one of
which will apply to a worker depending on the sector in which he
works (the civil engineering sector, the industrial sector, the
institutional and commercial sector or the residential
sector).
These amendments to the labour relations regime applicable to
construction workers have not, however, changed the method of
remunerating the annual leave and statutory holidays provided for
in the collective agreements.
It must be noted here, however, that the annual vacation and
statutory holiday pay scheme dealt with in this brief does not
cover the workers of the residential construction sector, since
at the time this brief was written no collective agreement had
yet been concluded for that sector between the Association
provinciale des constructeurs d'habitation du Québec
(A.P.C.H.Q.) and the representative union associations.
Having clarified this point, we think it essential to now
recall briefly the history of the implementation of this
exceptional regime which has applied to construction industry
workers for several decades.
This regime was put in place to correct a number of
deficiencies as a result of which a number of workers were often
deprived of all vacation pay mainly as a consequence of
construction workers' high degree of mobility. Indeed, it has
long been acknowledged that a large proportion of workers in the
construction industry work for a number of different employers in
the course of a single year, depending on the contracts obtained
by those employers. As a result of this situation, at annual
vacation time, workers had to run from one employer to another to
claim their vacation pay, which very often could not be recovered
either because the employer was insolvent or had simply
disappeared.
The Quebec legislator thus decided a number of years ago to
correct the situation by introducing a special regime under which
the vacation pay amount would be paid every week and remitted to
a third party who would hold it in trust for and on behalf of the
workers and would pay them this vacation pay twice a year.
So it is in this context that the collective agreements
provide that every employee shall have four weeks of compulsory
annual vacation each year (two weeks in summer and two weeks in
winter) as well as a certain number of statutory holidays. Thus
each week, in addition to paying them their normal wages, the
employer is required to pay each worker an amount equal to 11% of
wages earned during that week in respect of vacation pay (6%) and
statutory holiday pay (5%). The employee is taxed on these
payments and pays all the statutory premiums and contributions
but does not actually receive the money since the employer must
remit it to the Commission de la construction du Québec,
which holds it on behalf of the employee and pays it to him on
the dates provided for in the collective agreements. The relevant
articles of the collective agreements are appended hereto.
The exceptional regime applicable to workers in the
construction industry was analyzed by the Federal Court of Appeal
for the purpose of ruling on the allocation of the amounts in
question under the unemployment insurance scheme (Giroux v.
Canada (Employment and Immigration Commission),
A-527-87, April 15, 1988).
In that case, Pratte J., writing for the Court, held that
the amounts received by a construction worker could not be
earnings at the time they were paid by the Commission de la
construction du Québec since it merely remitted to the
employees their own savings. This reasoning by the Federal Court
of Appeal confirmed with respect to Quebec construction industry
workers the reasoning adopted by the Supreme Court of Canada in
Bryden, [1982] 1 S.C.R. 443, and reaffirmed by the
Federal Court of Appeal in Vennari, [1987] 3 F.C.
129.
The point to be taken from these decisions is that the amounts
paid by a trustee to an employee as vacation pay cannot be
considered to be earnings at the time they are paid. Instead
these amounts constitute earnings at the time the employer pays
them to the employee since that is when the employee is taxed on
those amounts and pays employment insurance premiums.
It is thus in this specific context that one must determine
the application of section 10.1 of the Employment
Insurance Regulations to the amounts paid to an employee by
his employer each week in respect of annual vacation and
statutory holidays.
As it is clear that this remuneration paid to an employee
every week constitutes a lump sum payment made by an employer for
a future vacation period and does not directly reflect the length
of the vacation period since it corresponds to a percentage of
wages, it is submitted that subsection 10.1(2) of the
Employment Insurance Regulations must apply.
More particularly, and in a context of fairness for all
construction workers, it is submitted that it would be fair to
apply paragraph (b), which provides that the number
of hours credited shall be calculated by dividing the lump sum
amount by the normal hourly rate of pay.
We believe that such application of the Regulations would be
fair and equitable for everyone since the number of hours
credited would be based on the number of hours of work per week
and on the number of work weeks per year for each construction
worker.
It is further submitted that application of the Regulations in
accordance with the above comments is consistent with the wording
of section 10.1 of the Regulations and with the intent of
Parliament. This interpretation furthermore makes it possible to
reconcile the wording of the Regulations with the Federal Court
of Appeal's decision in Giroux, supra.
In closing, we take the liberty of illustrating by means of
the following example the interpretation just set out:
In one week, a construction worker works 40 hours for one
employer at $20 an hour. He receives total insurable earnings of
$888 (40 hours X $20 = $800 in wages + $800 X 11% = $88 for
annual vacation and statutory holiday pay).
The vacation pay of $88 should be divided by the worker's
hourly wage of $20 to determine his credit of hours of insurable
employment. We thus obtain a credit of 4.4 hours which
should be added to his 40 hours of work, for a total of
44.4 hours of insurable employment during the week in
question.
It is therefore submitted that this method for determining the
hours of insurable employment relating to annual vacation and
statutory holiday pay for construction workers should be used by
the Minister in the interest of justice and fairness for all and
to prevent construction industry workers from being penalized
relative to workers in other sectors as a result of the special
vacation pay scheme which is applicable to them for the
historical reasons which we have described in this brief.
Michel Letreiz
Counsel, F.I.P.O.E.
Respondent's Arguments
[21]
Mounes Ayadi, counsel for the respondent, contended that the
compulsory annual vacation and statutory holiday pay generates no
insurable hours.
[22] The
record of employment shows 139 insurable hours. The
11 percent vacation pay amount does not give the appellant
additional insurable hours.
[23]
Subsections 10.1(1) and (2) of the Employment Insurance
Regulations describe a situation in which an employer makes a
payment to an employee, regardless of whether it is a lump sum or
other amount, for a vacation period.
[24] For it to
be said that wages were paid during a vacation period, the person
so paid must be employed at the time of that vacation.
[25]
Section 10.1 can apply only if there is an employer-employee
relationship between the parties at the time of the vacation, in
which case the remuneration paid by the employer would correspond
to that vacation period.
[26] In the
instant case, there is no employer-employee relationship between
the appellant and the payer. It was admitted that there was no
such relationship between them during the compulsory vacation
periods.
[27] Thus, if
a person is not employed during a given period, it cannot be said
that that person is on vacation. For a person to be on vacation,
he must necessarily be employed.
[28] Counsel
adds that, when the Commission de la construction pays out the
vacation pay amount during the compulsory vacation periods, that
payment does not constitute earnings.
[29]
Furthermore, when the vacation pay amount is credited each week
by the employer, it is during that period that the wages were
earned by the appellant.
[30] The
decisions in Bryden,[1]Giroux[2] and Vennari[3] confirm that the amount paid
is not vacation pay, but rather savings accumulated by the
employee while working.
[31] Thus,
given that the 11 percent constitutes savings accumulated
during the employment period, in concrete terms the appellant
worked from June 19 to July 1, 1997 and received his
normal hourly wage and also the vacation pay amount.
[32] Counsel
for the respondent also asks the following questions. Is there
any provision in the Act under which the appellant may be
given additional hours during the period when he was employed by
the payer? How are insurable hours calculated when the person is
employed?
[33]
Section 9.1 of the Employment Insurance Regulations
provides the answer.
[34] The
appellant was paid by the hour and he worked 139 hours. This
is the number of hours that he actually worked and for which he
was remunerated. In Mr. Ayadi's view, the appellant
cannot be credited with additional hours on the basis of the
vacation pay amount.
[35] He adds
that section 10.2 of the Employment Insurance
Regulations confirms his reasoning.
[36] This
section sets out the rules that apply for the purposes of
sections 9.1, 10, 10.1 and 22. Paragraph 10.2(a)
states that an hour of work performed in insurable employment is
considered to be a single hour of insurable employment, even if
the hour is remunerated at an overtime rate of pay.
[37] In
conclusion, since the vacation pay amount is considered as
remuneration earned during the weeks of employment, no additional
insurable hours may be credited under section 9.1 of the
Employment Insurance Regulations for the 11 percent
vacation pay amount.
[38] The
appellant is deemed to hold insurable employment solely for the
hours he actually worked.
Michel Letreiz's Rebuttal
[39] In
rebuttal of Mr. Ayadi's two arguments, Mr. Letreiz
stated the following, at page 63 ff. of the transcript:
[TRANSLATION]
What we argue is that this is a credit of hours that must be
added to his hours each week and, thus, during that week, when
the amount was paid, there was an employer-employee relationship
between Mr. Massicotte and Transelec. So the
employer-employee relationship is important, but it is important
precisely with respect to the period for which insurable hours of
employment are claimed, not with respect to a subsequent
period.
That said . . . well, my colleague referred to two other
sections of the Regulations, sections 9.1 and 10.2. A brief
comment.
I would say that those two sections are of no use in deciding
the matter before you today. Section 9.1 refers to
remuneration paid to an employee on an hourly basis, thus, for
work performed. Reference is made in 9.1 to a person's
earnings:
Where a person's earnings are paid on an hourly
basis . . .
The hours of work are thus paid on an hourly basis. It is 9.1
that applies. Returning to the example I gave a moment ago, when
I gave you an example, in the case of a person who worked
40 hours at $20 an hour, plus his 11%, as regards his
40 hours at $20 an hour, it is 9.1 that would be applicable
for those 40 hours; it is remuneration paid on an hourly
basis, within the meaning of 9.1 for those 40 hours, but
section 9.1 does not help us in resolving the question of the
11%.
Because what is this 11%? The collective agreements tell us
that it is a compulsory annual vacation and statutory holiday
pay. So it is not an hourly wage; it is annual vacation pay.
Consequently, section 9.1 is not helpful.
Paragraph 10.2(a), as my colleague emphasized,
states:
(a) an hour of work performed in insurable employment is
considered to be a single hour of insurable employment, even if
the hour is remunerated at an overtime rate of pay.
Once again, I do not believe this can be of any help in
deciding the case before you today. We are not asking
that . . . because, for example,
Mr. Massicotte apparently worked during this period, and
quite likely did so because I am looking . . . it
is after all a brief period; we are looking at a period from
June 19 to July 1, and he worked 139 hours. He no
doubt worked some overtime, but I am not asking that he be given
two hours because he was paid double time. That is not what I am
asking.
. . .
That is what is covered by paragraph (a). That
does not help us today. What we are telling you is that the only
section that can help you today is section 10.1.
Section 10.1 is the provision that refers to remuneration
for a period of leave; it thus deals with vacation pay, and this
is precisely what is before you today. The question is: are hours
to be credited for annual leave and statutory holiday pay
amounts?
Thus it is most respectfully submitted that the only section
that can help you render your decision today is
section 10.1, and it is submitted that, in the case before
us, since what is involved is the payment of a lump sum amount
without regard to the length of the period, it is necessarily
subsection 10.1(2) that must apply.
. . .
IV-
Analysis
[40]
Subsection 2(1) of the Employment Insurance Act
provides that insurable earnings means the total amount
of the earnings, as determined in accordance with
Part IV, that an insured person has from insurable
employment.
[41]
Paragraph 2(1)(a) of the Insurable Earnings and
Collection of Premiums Regulations provides that the total
amount of earnings that an insured person has from insurable
employment is the total of all amounts, whether wholly or partly
pecuniary, received or enjoyed by the insured person that
are paid to the person by the person's employer in
respect of that employment.
[42]
Parliament has set out the methods for determining the number of
insurable hours of employment in section 9.1 ff.
[43]
Section 9.1 of the Employment Insurance Regulations
provides that where a person's earnings are paid on an
hourly basis, the person is considered to have worked in
insurable employment for the number of hours that he
actually worked and for which he was
remunerated.
[44]
Section 9.1 lays down the general principle.
[45] The
exceptions follow in section 9.2 dealing with the situation
where remuneration has not been paid.
[46]
Section 10 is also a provision concerning other
situations which involve the determination of insurable
hours.
[47]
Subsection 10.1(1) concerns the determination of insurable
hours for an employee paid by his employer for a period of
paid leave.
[48] In such a
case, the employee is deemed to have worked in insurable
employment for the number of hours that he would normally have
worked and for which he would normally have been remunerated
during the period of paid leave.
[49]
Subsection 10.1(2) provides for the determination of
insurable hours for an employee paid by his employer for a
period of leave in the form of a lump sum payment calculated
without regard to the length of the period of leave.
[50] In such a
case, the employee is deemed to have worked in insurable
employment for the lesser of the number of hours that he would
normally have worked and for which he would normally have been
remunerated during the period of leave and the number of hours
obtained by dividing the lump sum amount by the normal hourly
rate of pay.
[51]
Subsection 10.1(3) provides for the determination of
insurable hours for an employee paid by his employer for a
non-working day.
[52] If he
works on that non-working day, that employee is deemed to
have worked in insurable employment for the greater of the number
of hours that he actually worked and the number of hours that he
would normally have worked on that day.
[53] If the
employee does not work on that non-working day, he is deemed to
have worked in insurable employment for the number of hours that
he would normally have worked on that day.
[54]
Section 10.2 provides that, for the purposes of
sections 9.1, 10, 10.1 and 22, an hour of work performed in
insurable employment is considered to be a single hour of
insurable employment, even if the hour is remunerated at an
overtime rate of pay.
[55] It also
provides that a fraction of an hour shall be counted as a whole
hour in determining the total number of hours of insurable
employment accumulated.
[56] What are
the appellant's insurable hours?
[57] The
appellant's insurable hours are determined under
section 9.1 of the Regulations because his remuneration was
paid to him on an hourly basis. That being the case, he is
considered to have worked in insurable employment for the number
of hours he actually worked and for which he was remunerated
prior to the termination of his employment on July 9,
1997.
[58] Does the
amount equal to 11 percent of earned wages credited to the
appellant by the payer at the end of each week in respect of pay
for compulsory annual vacation and statutory holidays give rise
to insurable hours?
[59] Counsel
for the appellant argues that subsection 10.1(2) of the
Employment Insurance Regulations applies as a result of
the changes made to the Employment Insurance Act.
[60] The
Federal Court of Appeal's decision in Giroux[4]must be applied
here.
[61] The pay
for compulsory annual vacation received by the appellant from the
Commission de la Construction du Québec does not
constitute earnings. Whether the insurable period be calculated
in weeks or in hours, that in no way changes the reasoning in my
view.
[62] The
appellant's situation for the period of employment in issue
is not that described in subsection 10.1(2) of the
Employment Insurance Regulations.
[63] The
appellant was not on paid leave for an indeterminate period
during his period of employment with the payer. He worked
continuously, without interruption, until the termination of his
employment on July 9, 1997.
[64] The
amount credited to the appellant of 11 percent of earned
wages, consisting of 6 percent for compulsory annual
vacation and 5 percent for statutory holidays, must be paid
to him for specific reference periods within a time period fixed
by the collective agreement.
[65] The
appellant is also entitled to interest on the unused portion of
the amount collected.
[66]
Furthermore the 11 percent credited as vacation pay each
week is no longer the property of the payer, who hands it over to
the Commission for the appellant's benefit.
[67] Thus the
payment of the vacation pay amount to the appellant by the
Commission is not a lump sum payment calculated without regard to
the length of the period of leave. That amount will vary
according to the number of hours worked and any interest payable.
The length of the appellant's vacation period is determined
in advance and he will receive his vacation pay even if he is no
longer employed by the payer after his termination on
July 9, 1997. Besides, if an employer had called him back to
work for an emergency[5] during the compulsory vacation period, he would then
have accumulated hours of insurable employment but still have
received his vacation pay.
[68] In the
appellant's case, he worked 139 hours and was not
insured for more hours than those actually worked for his
employer's benefit.
[69] In other
words, the 11 percent vacation pay amount does not generate
additional insurable hours. It is not earnings for the purpose of
calculating insurable hours.
[70] The same
reasoning could apply to anyone receiving 4 percent vacation
pay upon termination of his employment. In my humble opinion,
this amount could not generate additional insurable hours of
employment, just as it would not have generated additional
insurable weeks of employment under the old Unemployment
Insurance Act.
[71] The Court
cannot accept the appellant's arguments.
V-
Decision
[72]
Accordingly, the appeal is dismissed and the Minister's
decision confirmed.
Signed at Dorval, Quebec, this 20th day of April 2000.
"S. Cuddihy"
D.J.T.C.C.
Translation certified true on this 5th day of April
2001.
Erich Klein, Revisor
[OFFICIAL ENGLISH TRANSLATION]
1999-238(EI)
BETWEEN:
CAMILLE MASSICOTTE,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Appeal heard on March 15, 2000, at
Montréal, Quebec, by
the Honourable Judge S. Cuddihy
Appearances
Counsel for the
Appellant:
Michel Letreiz
Counsel for the
Respondent:
Mounes Ayadi
JUDGMENT
The
appeal is dismissed and the Minister's decision confirmed in
accordance with the attached Reasons for Judgment.
Signed at Dorval, Quebec, this 20th day of April 2000.
D.J.T.C.C.
Translation certified true
on this 5th day of April 2001.
Erich Klein, Revisor
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