Date: 20130410
Docket: A-422-12
Citation: 2013 FCA 97
CORAM: SHARLOW
J.A.
DAWSON J.A.
WEBB
J.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
and
GREGORY TERRION
Respondent
REASONS FOR JUDGMENT
DAWSON J.A.
[1]
Under
the Employment Insurance Act, S.C. 1996, c.23 (Act), a worker's
eligibility for employment insurance benefits is determined by reference to the
number of hours of insurable employment the worker accrued during the
applicable qualifying period. The applicable qualifying period is determined in
the manner prescribed by section 8 of the Act. On this application for judicial
review, only subsection 8(1) of the Act is engaged and only one question is
raised by the claim for benefits at issue: when did the qualifying period for
benefits commence under the Act?
[2]
Subsection
8(1) provides:
|
8. (1) Subject to
subsections (2) to (7), the qualifying period of an insured person is the
shorter of
(a) the 52-week
period immediately before the beginning of a benefit period under subsection
10(1), and
(b) the period that
begins on the first day of an immediately preceding benefit period and ends
with the end of the week before the beginning of a benefit period under
subsection 10(1).
|
8. (1) Sous réserve des
paragraphes (2) à (7), la période de référence d’un assuré est la plus courte
des périodes suivantes :
a) la période de cinquante-deux
semaines qui précède le début d’une période de prestations prévue au
paragraphe 10(1);
b) la période qui débute en
même temps que la période de prestations précédente et se termine à la fin de
la semaine précédant le début d’une période de prestations prévue au paragraphe
10(1).
|
[3]
The
respondent to this application, Mr. Terrion, applied for employment insurance
benefits on March 7, 2012. If paragraph 8 (1)(a) applied to his claim for
benefits, his qualifying period commenced on March 1, 2011. The Commission,
however, was of the view that his qualifying period began on March 27, 2011. In
its view, paragraph 8(1)(b) of the Act was engaged because Mr. Terrion had
previously made a claim for benefits.
[4]
Unfortunately,
the Commission never communicated its reliance upon paragraph 8(1)(b) to Mr.
Terrion. He was simply told that:
You have accumulated 542 hours of
insurable employment between March 27, 2011 and March 3, 2012 while according
to the unemployment rate in your region, at the time of your filing, you needed
630 hours to qualify.
[5]
Mr.
Terrion appealed the refusal of benefits to the Board of Referees. He said in
his notice of appeal that during the period from March 1, 2011 to March 3, 2012
he had accumulated 730 hours of insurable employment.
[6]
In
its responding submissions to the Board of Referees, the Commission made no
reference to paragraph 8(1)(b) of the Act and made no reference to any prior
claim to benefits or to any immediately preceding benefit period. The
Commission provided no evidence with respect to any prior claimed benefits. The
Commission simply declared as a fact, under the heading "Summary of
relevant facts" that:
The claimant filed a claim for
employment insurance benefits on March 07, 2012 (Exhibit 2).
The qualifying period on this
claim is therefore March 27, 2011 to March 03, 2012.
[7]
The
Board of Referees unanimously allowed Mr. Terrion's appeal from the decision of
the Commission and determined that the qualifying period began on March 1,
2011. Its reasons for this determination were expressed as follows:
The claim cut off date suggested
by the Commission is March 27, 2011. The Board sided with the claimant that 52
weeks prior to March 2, 2012, would include those particular hours.
The chair of the Board of
Referees discussed the question with the Business Expertise Advisor, Ingrid
Nistico. She indicated that there had been a previous claim which would affect
the date of qualification; however, without that evidence, the Board decided to
accept the claimant’s position.
[8]
The
Commission appealed this decision to an Umpire who upheld the decision of the
Board of Referees (CUB 79553). The Umpire began his analysis by quoting
subsection 8(1) of the Act. He then reasoned as follows:
The claimant applied
for benefits on March 7, 2012. His qualifying period would therefore include
the 52 weeks prior to that date unless it was established that the claimant had
previously established a period of benefits that ended during the 52 weeks
prior to March 7, 2012. In the appeal docket, there was no evidence that such a
period of benefits had been established. The only reference to such a claim was
an allegation to this effect by a Business Expertise Advisor during the course
of the hearing before the Board.
The Board reviewed the
appeal docket and found that there was no evidence before the Board to
establish that a prior claim had been established during the 52 weeks prior to
the filing of the claimant’s claim on March 7, 2012. The Board concluded that
all the hours of employment accumulated during that period could therefore be
included in the determination of his entitlement to benefits. The Board found
that during this period the claimant had accumulated the hours of employment
required to establish a claim. The Board allowed the claimant’s appeal.
On appeal from the
Board of Referees’ decision, the Commission submitted that the Board erred in
not accepting that a prior claim had been established by the claimant and that
that claim had ended on March 27, 2011.
I fully agree with the
Board of Referees that the Commission had not presented any evidence to prove
that a claim had previously been established and would have terminated on March
27, 2011. If such was the fact, it was incumbent on the Commission to present
evidence to establish this.
[9]
On
this application for judicial review of the decision of the Umpire, the
Attorney General acknowledges that Mr. Terrion accumulated the following hours
of insurable employment:
Period Hours
March
1, 2011 to March 25, 2011 188
July
18, 2011 to August 11, 2011 188
November
14, 2011 to December 13, 2011 131
December
13, 2011 to December 22, 2011 82
February
7, 2012 to March 3, 2012 141
[10]
It
follows that if Mr. Terrion’s qualifying period commenced on March 1, 2011, he
would have accumulated a total of 730 insurable hours and qualified for
benefits under the Act. If, however, Mr. Terrion’s qualifying period commenced
on March 27, 2011, he would not qualify for benefits because he would have
accumulated 542 insurable hours of employment when he was required to accumulate
630 hours.
[11]
The
Attorney General argues that the Umpire erred in law in two respects.
[12]
First,
it is said that the Umpire erred by allowing the Board of Referees to determine
Mr. Terrion's qualifying period, and therefore the number of insurable hours he
accrued within the qualifying period. This is said to be in error of law
because under section 90 of the Act only the Minister of National Revenue has
the power to determine how many hours of insurable employment an insured person
has accrued.
[13]
Second,
it is said that the Umpire erred by finding it was incumbent on the Commission
to prove that Mr. Terrion had previously established a benefit period. This is
said to be an error of law because, under subsection 49(1) of the Act, Mr.
Terrion was obliged to prove he was eligible for benefits.
[14]
For
the following reasons, I am of the view the Umpire did not err as alleged.
[15]
First,
the Umpire did not allow the Board of Referees to calculate Mr. Terrion’s hours
of insurable employment. There was no dispute concerning the number of hours
Mr. Terrion had accrued during each period of time. The only dispute was one of
fact: had Mr. Terrion previously made a claim so as to make paragraph 8(1)(b)
of the Act applicable when determining the commencement of his qualifying
period? Counsel for the Attorney General agreed in oral argument that whether a
previous claim had been made was a question of fact the Board of Referees was
entitled to determine.
[16]
Second,
the Umpire did not reverse the onus of proof. Mr. Terrion claimed 730 insurable
hours of employment and his claim was supported by five records of employment.
Through this evidence, Mr. Terrion discharged his burden of proof. He could not
reasonably be expected to prove a negative fact - that he had not made a prior
claim for benefits. The evidence of the existence of any such claim was
available to the Commission. Mr. Terrion's evidence that he had accumulated 730
hours placed a persuasive burden on the Commission to produce some evidence to
counter Mr. Terrion’s evidence. The Commission was required to produce some
evidence, not merely assert, that Mr. Terrion had previously made a claim for
benefits so as to shorten the qualifying period. It failed to do so.
[17]
For
these reasons I would dismiss the application for judicial review.
"Eleanor R.
Dawson"
“I
agree
K.
Sharlow J.A.”
“I
agree
Wyman
W. Webb J.A.”
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