Date: 20000629
Docket: A-466-98
EDMONTON, ALBERTA, THURSDAY, JUNE 29th, 2000.
CORAM: ROBERTSON, J.A.
McDONALD, J.A.
SEXTON, J.A.
BETWEEN:
| THE ATTORNEY GENERAL OF CANADA |
Applicant
Respondent
Heard at Edmonton, Alberta, on Wednesday, June 28, 2000
Judgment delivered from the Bench at Edmonton, Alberta, on Wednesday, June 28, 2000
REASONS OF THE COURT BY: SEXTON J.A.
Date: 20000629
Docket: A-466-98
CORAM: ROBERTSON, J.A.
McDONALD, J.A.
SEXTON, J.A.
BETWEEN:
| THE ATTORNEY GENERAL OF CANADA |
Applicant
Respondent
REASONS FOR JUDGMENT
SEXTON, J.A.:
Introduction
[1] At issue in these applications for judicial review is whether a Board of Referees and correlatively an Umpire has jurisdiction to determine the number of hours of insurable employment an employment insurance benefits claimant has earned, or whether such jurisdiction belongs exclusively to the Department of National Revenue by reason of paragraph 90(1)(d) and section 122 of the Employment Insurance Act.1
[2] The jurisdictional issue arises out of a dispute between the parties as to the proper interpretation to be placed upon section 94.1 of the Employment Insurance Regulations which is a transitional provision which came into effect in January of 1997.
[3] Under the Unemployment Insurance Act, eligibility for unemployment benefits was determined according to the number of weeks worked. Under the "new" legislation, the Employment Insurance Act, it is the actual number of hours worked by a claimant which is relevant. With respect to persons whose claim periods straddle the old legislation and the new, the Attorney General argues that the present regulations provide that for every eligible week of insurable employment worked prior to January of 1997, a claimant is deemed to have worked 35 hours during that week. Applying that formula, all of the respondents lacked the requisite number of hours needed to qualify for benefits under the new legislation. At the same time, the respondents were able to establish that they had actually worked more than 35 hours in the weeks under consideration. It is common ground that if the actual number of hours per week are used in assessing their claims, all of the respondents qualify for benefits. The problem, however, is that section 94.1 of the Regulations provides that a week of insurable employment "shall be considered to represent 35 hours of insurable employment". Thus the legal question is whether the word "shall" should be read in a "mandatory" as opposed to a merely "directory" manner.
[4] In the six cases before us, the Commission ruled that the respondents had insufficient hours of insurable employment. However, these findings were reversed by the Board of Referees. On appeal, the Umpire held that he lacked the requisite jurisdiction and returned the matters back to the Commission on the basis that it request rulings from the Minister of National Revenue with respect to the claims.
Legislative provisions:
Employment Insurance Act:
| 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 Department of National Revenue authorized by the Minister to make a ruling on any of the questions: [...] |
| (d) how many hours an insured person has had in insurable employment. [...] |
| Employment Insurance Act: |
| 122. If a question specified in section 90 arises in the consideration of a claim for benefits, it shall be determined by an authorized officer of the Department of National Revenue, as provided by that section. |
Employment Insurance Regulations:
| 94.1 Where, for the purposes of the Act and in respect of a benefit period established on or after January 5, 1997, a claimant presents evidence of a week of insurable employment that occurred before January 1, 1997, that week of insurable employment shall be considered to represent 35 hours of insurable employment. |
Unemployment Insurance Act
| 61(3) Where there arises in relation to a claim for benefit under this Act any question concerning [...] |
| (c) the length of a person's insurable employment, or [...] |
| an application to the Minister for determination of the question may be made by the Commission at any time and by that person or the employer or purported employer of that person within ninety days after being notified of the decision of the Commission. |
| 89. If in the consideration of any claim for benefit any question specified in section 61 arises, that question shall be determined by the Minister of Revenue as provided in Part III. |
Analysis:
[5] In Canada (A.G.) v. Vautour,2 this Court held that s.61(3) of the Unemployment Insurance Act served to prevent a Board of Referees or an Umpire from determining the length of a claimant's insurable employment. It held:
| We would add that in any event the question as to whether and for how long the claimant was in insurable employment is one which neither the Board of Referees nor the Umpire has power to decide (see sec. 61(3) of the Act). |
[6] This Court reached a similar conclusion in Canada (A.G.) v. Kaur.3
[7] Recently, in Valentine v. Canada (A.G.),.4 decided May 9, 2000, this Court (per Létourneau J.A.) affirmed Vantour and Kaur. Létourneau J.A. held at paragraphs 2 and 3:
| Subsection 61(3) of the Unemployment Insurance Act [...] authorizes the Canada Employment and Immigration Commission [...] to seek at any time from the Minister of National Revenue [...] a determination as to whether a person is or was employed in insurable employment. Such right is also given to an employer and an employee within 90 days after being notified of the decision of the Commission to seek a determination from the Minister. [...] |
| Appeals from the Minister's determination, including, by necessary implication, the Commission's right to seek such a determination and whether the Commission exercises its right properly, are to be heard by the Tax Court of Canada pursuant to section 70 of the Act. Consequently, the Minister's decision on the insurability of the applicant's employment was not before us and was not an issue that the learned Umpire and the Board of Referees had or would have had jurisdiction to decide: Canada (A.g.) v. Kaur, 1657 N.R. 98 (F.C.A.); Canada (A.G.) v. Vautour, [1996] F.C.J. No. 1717 (C.). |
| I can understand the difficulty that the scheme of the Act poses to a self-represented litigant: insurability issues take one route, i.e. Revenue Canada and the Tax Court of Canada, and entitlements to benefits take another, i.e. the Commission, the Board of Referees and the Umpire. While I sympathize with the applicant and the frustration that he experienced, I remain bound by the law. The authority of the Commission to seek an insurability ruling and insurability ruling itself are issues that should have been appealed before the Tax Court but were not. [Emphasis added] |
[8] In our view, paragraph 90(1)(d) and section 122 of the Employment Insurance Act are even more clearly worded than subsection 61(3) and section 89 of the Unemployment Insurance Act. In light of the jurisprudence referred to in the cases of Valentine, Vautour, Kaur, and section 122 of the Employment Insurance Act, which explicitly states that "if a question specified in section 90 arises in the consideration of a claim for benefits, it shall be determined by an authorized officer of the Department of National Revenue, as provided by that section" (emphasis added), we do not think that the Boards of Referees and correlatively the Umpire had the jurisdiction to determine whether the respondents had a sufficient number of hours in insurable employment to qualify for employment insurance benefits. We are in complete agreement with the decision of the Umpire.
[9] This Court in Attorney General of Canada v. Hoek recently considered the interpretation to be given to section 94.1 of the Regulations under the Employment Insurance Act. The Court concluded that an Umpire erred by failing to apply the "clearly mandatory" 35-hour conversion factor prescribed by section 94.1, the Umpire preferring instead to convert weeks of insurable employment that were worked prior to January 1, 1997 to the actual number of hours that an employee had worked. The Court allowed the application for judicial review, set aside the Umpire's decision, and referred the matter back to the Chief Umpire or to a person designated by him for reconsideration on the basis that the claimant's appeal should be dismissed.
[10] However, it does not appear that in the Hoek case the Court was advised of the issue relating to the Umpire's jurisdiction.
[11] We would therefore dismiss these applications with costs to the respondent in A-466-98 only. Costs will be fixed at $100.
[12] A copy of these reasons shall be filed in each of the files numbered A-467-98, A-468-98, A-469-98, A-470-98, A-471-98 and be deemed the reasons of the Court in each file.
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-466-98
STYLE OF CAUSE:
THE ATTORNEY GENERAL OF CANADA
-and -
VICTOR E. HAWRYLUK
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: June 28, 2000
REASONS FOR JUDGMENT BY: Sexton J.A.
DATED: June 29, 2000
APPEARANCES:
Louis A. T. Williams FOR THE APPLICANT
Victor E Hawryluk ON HIS OWN BEHALF
SOLICITORS OF RECORD:
Morris A. Rosenberg
Deputy Attorney General of Canada
Department of Justice
Edmonton, Alberta FOR THE APPLICANT
Victor E. Hawryluk ON HIS OWN BEHALF
__________________
1 S.C. 1996, c. 23.
2 [1996] F.C.J. No. 1717 (C.A.).
3 (1994), 167 N.R. 98 (F.C.A.).
4 [2000], F.C.J. No. 619.
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