Docket:
A-4-13
Citation:
2013 FCA 243
CORAM:
SHARLOW
J.A.
STRATAS
J.A.
NEAR
J.A.
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BETWEEN:
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ATTORNEY GENERAL OF CANADA
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Applicant
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and
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DERWIN JEWETT
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Respondent
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REASONS FOR JUDGMENT BY THE COURT
[1]
The Attorney General of Canada has applied for
judicial review of a decision of Umpire Goulard (CUB 80183) upholding the decision
of the Board of Referees, which determined that the respondent Mr. Jewett had
sufficient hours of insurable employment to qualify for employment insurance
benefits under section 7 of the Employment Insurance Act, S.C. 1996, c.
23.
[2]
It is well-established that an Umpire’s
interpretation of employment insurance legislation is a question of law,
reviewable on the standard of correctness: Chaulk v. Canada (Attorney General), 2012 FCA 190 at paragraph 26; Canada (Attorney General) v.
Trochimchuk, 2011 FCA 268 at paragraph 7.
[3]
The decision of the Umpire in this case was
based on a legal analysis that relied on subsection 27(4) of the Interpretation
Act, R.S.C. 1985, c. I-21. That provision deals with the computation of
time “expressed to begin after or to be from a specified day”. That provision
is not engaged in this case, because all relevant time periods are specified
clearly in the Employment Insurance Act. Therefore, it was an error of
law for the Umpire to rely on the Interpretation Act in his analysis.
However, we have concluded for the following reasons that the Umpire’s decision
that Mr. Jewett is entitled to the employment insurance benefits he claimed is
sustainable.
[4]
As explained below, the resolution of the debate
about Mr. Jewett’s entitlement to benefits depends largely on subsection 17(1)
of the Employment Insurance Regulations, SOR/96-332. To understand the
function of that provision, it is necessary to understand the key elements of
the statutory scheme for the determination of employment insurance benefits.
[5]
Section 9 of the Employment Insurance Act
requires a “benefit period” to be established for a claimant for section 7
benefits. By virtue of subsection 10(1), a claimant’s benefit period begins on
the later of the Sunday of the week in which the claimant’s interruption of
earnings occurred, and the Sunday of the week in which the initial claim for
benefits was made. For purposes of the Employment Insurance Act, a week
is defined as a period of 7 consecutive days beginning on and including Sunday
(section 2).
[6]
In this case there is no dispute about Mr.
Jewett’s benefit period. His interruption of earnings occurred on Friday, February
3, 2012 (in the week beginning Sunday, January 29 and ending Saturday, February
4). His initial claim for benefits was made on February 7, 2012 (in the week
beginning Sunday February 5). The later of the two Sundays is Sunday, February
5. Therefore, according to subsection 10(1), his benefit period began on Sunday,
February 5, 2012.
[7]
A claimant’s entitlement to section 7 benefits
depends upon how many hours of insurable employment the claimant accumulated during
the “qualifying period” as determined under section 8 of the Employment
Insurance Act. It is undisputed in this case that Mr. Jewett’s qualifying
period is determined under paragraph 8(1)(a). According to that
provision, his qualifying period is the 52 week period immediately before the beginning
of his benefit period, or in other words, the 52 week period ending Saturday,
February 4.
[8]
The next step is to determine how many hours of insurable
employment Mr. Jewett was required to accumulate during his qualifying period. According
to paragraph 7(2)(b) of the Employment Insurance Act, Mr. Jewett
qualifies for benefits if, during his qualifying period (the 52 weeks ending
February 4, 2012), he had the number of hours of insurable employment set out
in the following table in relation to the regional rate of unemployment that
applies to him.
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Regional Rate of Unemployment
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Required Number of Hours
of Insurable Employment in Qualifying Period
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6% and under
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700
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more than 6% but not more
than 7%
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665
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more than 7% but not more
than 8%
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630
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more than 8% but not more
than 9%
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595
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more than 9% but not more
than 10%
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560
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more than 10% but not
more than 11%
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525
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more than 11% but not
more than 12%
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490
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more than 12% but not
more than 13%
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455
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more than 13%
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420
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[9]
It is undisputed that in Mr. Jewett’s case, the relevant
“region” is Thunder Bay. According to the table, if the Thunder Bay rate of unemployment
applicable to Mr. Jewett was more than 6% but not more than 7%, the required number
of insurable employment hours is 665. The Crown argues that this is the rate
applicable to Mr. Jewett, and that he is not be eligible for section 7 benefits
because he had only 633 insurable employment hours.
[10]
If the Thunder Bay rate of unemployment applicable
to Mr. Jewett was more than 7% but not more than 8%, the required number of
insurable employment hours is 630. Mr. Jewett argues that this is the rate
applicable to him, and because he had 633 insurable employment hours during his
qualifying period, he is eligible for section 7 benefits.
[11]
To determine who is correct, it is necessary to
refer to subsection 17(1) of the Regulations. According to that
provision, the regional rate of unemployment applicable to a claimant is the
average of the seasonally adjusted monthly rates of unemployment for the last
three-month period for which statistics were produced by Statistics Canada that
precedes the week referred to in subsection 10(1) of the Employment
Insurance Act.
[12]
As explained above, for Mr. Jewett, the week
referred to in subsection 10(1) of the Employment Insurance Act is the
week commencing Sunday, February 5, 2012. Therefore, the three month period to
be chosen for the purpose of applying subsection 17(1) of the Regulations
in respect of Mr. Jewett’s claim must be a period that ends no later than
Saturday, February 4, 2012.
[13]
And so, the key question becomes this: what was the
average of the seasonally adjusted monthly rates of unemployment for the last
three-month period for which statistics were produced by Statistics Canada ending
no later than Saturday, February 4, 2012? That is a factual question. To answer
it, we must consider the record that was before the Umpire.
[14]
The record contains a chart upon which the Crown
relies to support the Commission’s position that for the week commencing
February 5, 2012 the applicable rate of unemployment is 6.2%. According to the
Crown, that supports its conclusion that Mr. Jewett required 665 hours of
insurable employment in order to qualify for benefits, which means that he does
not qualify.
[15]
The chart is largely illegible and it is not
helpful in most respects. The record does not disclose who prepared it, or why,
or how. There is no reference on the chart as to whether it complies with the
requirements of subsection 17(1) of the Regulations, or whether it is
based upon Statistics Canada’s statistics. It is also not legible as to what
dates the statistics set out in the chart refer to. The chart alone is not
sufficient to provide an answer to the key question posed above.
[16]
More importantly however, even if the chart were
acceptable and sufficient proof, it does not address the correct period. As
explained above, the relevant time period for the purpose of applying subsection
17(1) of the Regulations to Mr. Jewett’s claim is the three month period
ending no later than February 4, 2012, not the three month period commencing February
5, 2012 as the Crown has argued.
[17]
Because the chart upon which the Crown relies
cannot answer the key question, we must look elsewhere in the record. The only
document capable of providing an answer is the document marked Exhibit A to the
affidavit of Mr. Jewett dated March 11, 2013. Page 2 of that document indicates
that for the period January 8, 2012 to February 4, 2012, the regional rate of unemployment
for the region of Thunder Bay was 7.3%. It is undisputed that this page was obtained
by Mr. Jewett from the Commission’s own website. Although it contains nothing
indicating that it is based on the data specified in subsection 17(1) of the Regulations,
Mr. Jewett is implicitly inviting this Court to infer that it is evidence of
the regional rate of unemployment that is relevant to the application of subsection
17(1) of the Regulations in relation to his claim.
[18]
Overall, this Court is faced with inadequate
proof of the applicable regional rate of unemployment. However, given the
Crown’s failure to adduce evidence on that point (evidence that is within its
knowledge and control), it would not serve the interests of justice to remit
this matter to the Umpire for better proof and require Mr. Jewett to navigate the
administrative and judicial process for a second time.
[19]
The best proof of the regional rate of unemployment
is that found in the document relied upon by Mr. Jewett. It comes from the
Commission’s own website and may reasonably be interpreted as Mr. Jewett
suggests. Therefore, this application will be determined accordingly.
[20]
The application for judicial review will be
dismissed with costs fixed at $800,
inclusive of all disbursements and applicable taxes.
"K. Sharlow"
"David Stratas"
“D.G. Near”
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