A-378-96
OTTAWA, ONTARIO, THE
10th DAY OF OCTOBER 1996
CORAM: THE HONOURABLE MR. JUSTICE HUGESSEN
THE
HONOURABLE MADAM JUSTICE DESJARDINS
THE
HONOURABLE MR. JUSTICE DÉCARY
BETWEEN:
ATTORNEY
GENERAL OF CANADA,
Applicant,
-
and -
ANDRÉ
LALONDE,
Respondent.
JUDGMENT
The application
for judicial review is allowed, the umpire's decision is quashed and the matter
is referred back to the chief umpire or an umpire designated by him for a new
decision on the basis that the payments received by the respondent constituted
earnings.
James
K. Hugessen
J.A.
Certified true
translation
Stephen Balogh
A-378-96
CORAM: HUGESSEN
J.A.
DESJARDINS J.A.
DÉCARY
J.A.
BETWEEN:
ATTORNEY
GENERAL OF CANADA,
Applicant,
AND:
ANDRÉ
LALONDE,
Respondent.
REASONS FOR JUDGMENT OF THE COURT
(Delivered from
the bench at Ottawa, Ontario
on
Thursday, October 10, 1996)
DÉCARY J.A.
The issue in this case is whether certain
payments received by the claimant following an automobile accident are payments
he “has received or, on application, is entitled to receive from motor vehicle
accident insurance provided under or pursuant to a provincial law in respect of
the actual or presumed loss of income from employment due to
injury. . .” within the meaning of paragraph 57(2)(d) of the Unemployment
Insurance Regulations.[1] If
they are, the amount received will constitute earnings.
Like the Canada Employment and Immigration
Commission (the Commission) and unlike the Board of Referees and the umpire, it
is our view that paragraph 57(2)(d) of the Unemployment Insurance
Regulations is applicable to the case at bar.
The respondent lives in Ontario, and the
automobile accident took place in Ontario on September 2, 1993. In Part VI of
the Insurance Act (R.S.O. 1990, c. I.8, as amended) (the Ontario Act)
entitled “Automobile Insurance”, the Ontario legislature has provided for the
payment of “no-fault benefits” (section 224), and it has authorized the
Lieutenant Governor in Council, in subsection 121(1), item 9, to make
regulations “establishing benefits for the purposes of Part VI that must be
provided under contracts evidenced by motor vehicle liability policies and
establishing terms, conditions, provisions, exclusions and limits related to
such benefits”.
The Ontario Act is binding on all insurers,
and all insurance contracts are subject, in the case of no-fault benefits, to
Regulation 672 (R.R.O. 1990) entitled No-Fault Benefits Schedule, which
applies to accidents that occurred between June 22, 1990 and January 1, 1994.
The Schedule provides, inter alia, that insurers cannot raise certain
grounds for invalidity of insurance contracts against claimants and imposes, in
subsection 12(1), a minimum amount as a weekly “income” benefit. Subsection
12(1) reads as follows:
PART IV
Weekly Benefits
Income Benefit
12. (1) The insurer will
pay with respect to each insured person who sustains physical, psychological or
mental injury as a result of an accident a weekly income benefit during the
period in which the insured person suffers substantial inability to perform the
essential tasks of his or her occupation or employment if the insured person
meets the qualifications set out in subsection (2) or (3).
It is established in the case at bar that
the weekly benefits received (each in the amount of $566.38, over a period of
six weeks) by the respondent were paid by his insurer pursuant to section 12 of
Regulation 672 and calculated as prescribed by that section.
According to the Board of Referees, the
Ontario Act provides for [translation]
“insurance for loss of wages due to a motor vehicle accident”, while the umpire
considered it “private insurance” to which the respondent had subscribed on his
own initiative.
Neither of them was wrong, but their
conclusions led them to a question that they should have answered but did not.
It must be asked whether or not this insurance for loss of wages due to a motor
vehicle accident or private insurance is motor vehicle accident insurance
provided under or pursuant to a provincial law.
The question, is not easy to answer in view
in particular of the differences between the English and French versions of the
Unemployment Insurance Regulations, as the French version uses the words
“régime d'assurance-automobile prévu par une loi provinciale” to render “motor
vehicle accident insurance provided under or pursuant to a provincial law”,
It is our view on final analysis that these
differences between the two versions are insignificant. One explanation for
them may be that the drafters had the Ontario Act in mind when drafting the
English version and the Quebec automobile insurance scheme in mind when
drafting the French version.
What is clear from both versions is that the
intention was to take compensation for lost wages to which a claimant is
entitled under provincial legislation into account in calculating benefits
payable under the Unemployment Insurance Act. Paragraph 57(2)(d)
is not concerned with the form of the government intervention: as long as a
payment is made to a claimant under a scheme of motor vehicle insurance
regulated by the provincial government that provides for the payment of
benefits for loss of wages, the benefits paid constitute earnings for the
purposes of paragraph 57(2)(d) of the Unemployment Insurance
Regulations, provided of course that the other requirements of that
paragraph have been met.
In Gall v. Canada,[2]
a recent decision that was clearly not brought to the umpire’s attention, this
Court considered benefits paid under section 13 (Benefit If No Income) of
Regulation 672. According to what the Chief Justice stated at page 424, it was
not in issue that the payments in question were “received from motor vehicle
accident insurance provided under or pursuant to a provincial law”, and the
Court held in obiter that benefits paid under section 12 of Regulation
672 are paid “in respect of the actual or presumed loss of income from
employment” within the meaning of paragraph 57(2)(d) of the Unemployment
Insurance Regulations.
The respondent in the case at bar disagrees
that such benefits constitute payments received from motor vehicle accident
insurance provided under or pursuant to a provincial law. For the above
reasons, this argument cannot succeed. Furthermore, we do not hesitate, in the
instant case, to adopt the Chief Justice’s obiter dictum.
The application for judicial review will be
allowed, the umpire's decision will be quashed and the matter will be referred
back to the chief umpire or an umpire designated by him for a new decision on
the basis that the payments received by the respondent constituted earnings.
Robert Décary
J.A.
Certified true
translation
Stephen Balogh
FEDERAL
COURT OF APPEAL
A-378-96
BETWEEN:
ATTORNEY
GENERAL OF CANADA,
Applicant,
AND:
ANDRÉ
LALONDE,
Respondent.
REASONS FOR JUDGMENT OF THE COURT
FEDERAL COURT OF APPEAL
NAMES
OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: A-378-96
STYLE
OF CAUSE: AGC
v. André Lalonde
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: October 10, 1996
REASONS
FOR JUDGMENT OF THE COURT (Hugessen,
Desjardins and Décary JJ.A)
DELIVERED FROM THE
BENCH BY: Décary
J.A.
APPEARANCES:
Dominique Gagné for
the applicant
André Lalonde for
himself
SOLICITORS OF
RECORD:
George Thomson
Deputy Attorney General
of Canada
Ottawa, Ontario for
the applicant
André Lalonde
Vanier, Ontario for
himself
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