Date: 19981210

Docket: 97-1496-UI

BETWEEN:

SORAYA RAISI,

Appellant,

and

THE MINISTER OF NATIONAL REVENUE,

Respondent.

Reasons for judgment

MacLatchy, D.J.T.C.C.

[1] This appeal was heard at Toronto, Ontario, on November 23, 1998.

[2] The Appellant appeals the decision of the Minister of National Revenue (the "Minister") on an application made to the latter on May 1, 1997 to determine the insurability, for unemployment insurance purposes, of her employment with Raamco International Properties Limited, the Payor, from December 1, 1995 to May 16, 1996. The Minister determined the employment to be insurable and the total insurable earnings and insurable weeks to be $3,233.67 and 18 weeks respectively. The said decision was communicated to the Appellant on May 20, 1997.

[3] This appeal, therefore, concerns the determination of the number of insurable weeks and insurable earnings of the Appellant.

[4] It was agreed that the Appellant's employment is insurable pursuant to paragraph 3(1)(a) of the Unemployment Insurance Act (the "Act).

[5] The Appellant's insurable earnings, during her period of employment, are calculated by weekly pay periods as set out in the employer's schedule of weekly pay periods.

[6] According to the employer's guide to payroll deductions 1995 and 1996, which define "insurable weeks" and "insurable earnings" for unemployment insurance purposes, weekly pay periods are those which are seven consecutive days, the last day of which is the pay period ending date.

[7] In order for weekly earnings to qualify as insurable earnings, an employee must have earnings that are equal to or more than the weekly minimum, or the employee must have worked 15 hours or more in a weekly pay period. In 1995, the minimum weekly insurable earnings were $163.00 and $150.00 in 1996.

[8] The Minister found that the Appellant's total insurable earnings are $3,233.67 for 18 insurable weeks. The Minister also found that the remaining weeks of employment did not meet the 1995 and 1996 minimum weekly requirements for insurable earnings and hours worked.

[9] The Minister admits there is no dispute that the Appellant is a "new entrant" pursuant to subsection 6(4) of the Act and, as such, is required under subsection 6(3) of the Act to have 20 weeks of insurable employment in order to qualify for benefits.

[10] The Appellant believed the main issue raised is the number of hours to be allocated to her 24-hour on-call periods which occurred every second Friday and for both days of every second weekend.

[11] The Appellant's employment contract expressly sets out her duties as part-time assistant manager as cleaning all designated areas of the building every weekend, attending the building office every second designated weekday (i.e. every second Friday) in order to fill in for the resident managers on their days off and attending the building office every second weekend in order to fill in for the resident managers on their weekends off.

[12] The Appellant performed all of her duties as stated in her contract of employment. The time sheets record of overtime hours is substantially correct and include four hours of cleaning each day of every weekend.

[13] The Appellant believed the duty of attending the building office every second Friday in order to fill in for the resident managers on their days off was mandatory and that she was required to be available and ready to respond to a page throughout a 24-hour period. The Appellant may not have been required to perform specific additional tasks during the on-call period except when summoned, via pager, she was required to be available at the building throughout the entire period and was prevented from pursuing other activities.

[14] The Appellant also performed, in accordance with her employment contract, the task of attending the office every second weekend to fill in for the resident managers on their weekends off. This duty consisted of a 24-hour on-call period on each Saturday and Sunday of every second weekend during her employment with the Payor. During the 24-hour on-call periods each Saturday and Sunday of every second weekend, she also conducted her cleaning duties for four hours each day.

[15] The Appellant submits she should be credited for 50% of her time when on the on-call periods of each Saturday and Sunday of every second weekend, i.e. she should be credited with 10 hours for each Saturday and Sunday. Further, she should be credited with 50% of the on-call hours of every second Friday.

[16] The Minister submits that the Appellant should be credited with only 20% of those on-call or stand-by hours outside of her cleaning responsibilities.

[17] If the Appellant's arguments are accepted, she would be credited with sufficient insurable hours to qualify for unemployment insurance benefits under the Act. The Minister's calculations would not provide sufficient entitlements under the Act for the Appellant to be entitled to any claim.

[18] Evidence was brought before the Court through the Appellant. She was required to perform her contractual duties at two buildings known as 105 Isabella (where the Appellant resided) and 100 Gloucester, both in the City of Toronto, the buildings being about one city block from each other.

[19] The Appellant's duties included the cleaning of the lobbys, elevators, laundry rooms, front and back doors and the garbage rooms on each floor of 100 Gloucester, as it was an older style building. Her evidence supported her compliance with the other terms in her contract with the Payor which contract was entered as Exhibit A-1. The contract specified, among other terms, that she be required to attend every second Wednesday at the office – in point of fact Friday was substituted for that Wednesday.

[20] During the on-call hours the Appellant was required to wear a pager for any and all tenants to have contact with her, if desired, and for tenants to attend at her residence during those hours also. Her evidence supported the fact that each building was showing its age and there were numerous calls for her immediate attention for such emergencies as fires, plumbing leaks, troublesome tenants, lack of heat or other similar complaints from tenants. She was required to attend to investigate the complaint at any hour when on-call, assess what was required and make contact with emergency authorities, e.g. police, fire or repair persons as determined by her. She was required to be available for tenants moving out of the buildings, to make an elevator available to them, inspect the unit and report damage and clean the apartment and get the keys for the unit. Her experiences during on-call hours included fires emergencies, noisy tenants, garbage clean up to prevent fire risk, fights among tenants, lost keys; such calls were frequently during the late evening and early morning hours. The Appellant rightly believed that she must be available at all times during her on-call hours or her employment would be terminated.

[21] The Minister provided no direct evidence to the Court. Argument was given by both parties after which judgment was reserved.

[22] The Court accepted the evidence of the Appellant as being trustworthy and believable and it was not diminished by the cross-examination by counsel for the Respondent. The on-call hours were not benign but were exceedingly active and stressful for the Appellant. She was required to be present and available at all times and her decisive judgment was called on repeatedly for the problems reported to her both day and night. She was a totally responsible person and carried out her duties as assistant manager with sound and immediate judgment. Her on-call hours should be recognized as something more than mere token time yet should not be accepted as full-time employment.

[23] The Court received no guidance from the Respondent supporting his acceptance of these hours at the rate of 20% of on-call duty time, e.g. the Appellant to be credited with only four hours for insurability purposes out of 20 hours of time on call.

[24] Having heard the evidence adduced, the Court has reached the decision that an allowance of 20% (as above) is not sufficient or adequate allowance to the Appellant for the on-call hours. The Court is persuaded that an allowance of 50% of the on-call duty hours is not unreasonable in the circumstances. Accordingly, the Court finds for the Appellant, the appeal is allowed and the decision of the Minister is varied.

Signed at Toronto, Ontario, this 10th day of December 1998.

"W.E. MacLatchy"

D.J.T.C.C.