Date: 20120306
Docket:
A-280-11
Citation:
2012 FCA 74
CORAM: BLAIS
C.J.
EVANS
J.A.
LAYDEN-STEVENSON
J.A.
BETWEEN:
ATTORNEY
GENERAL OF CANADA
Applicant
and
DEJA WARREN
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Vancouver, British Columbia, on March
6, 2012)
LAYDEN-STEVENSON
J.A.
[1]
The issue
on this application for judicial review is whether the Umpire erred in failing
to find that the Board of Referees (the Board) wrongly concluded that the sum
of $12,000, received by the respondent, constituted compensation for
relinquishment of a right to reinstatement. In our view, the Umpire did err in
failing to correct the error of the Board. Consequently the application for
judicial review will be allowed.
[2]
The
respondent was employed by the Province of British Columbia. Following an incident at her workplace,
the respondent was absent from work for medical reasons. She applied for
benefits under a short term illness and injury plan (STIP plan). The employer
denied her claim. The respondent applied for and received medical employment
insurance benefits (medical benefits) from October 25, 2009 until March 6,
2010. Subsequently, she applied for and received regular employment insurance
benefits (benefits).
[3]
While in
receipt of medical benefits, the respondent filed a grievance with respect to
the employer’s refusal to pay benefits under the STIP plan. Discussions between
the respondent’s union representative and the employer culminated in a
settlement agreement (the agreement). The terms of the agreement, dated January
26, 2010, provide for the full and final settlement of all matters outstanding
between the respondent and the employer. Pursuant to the agreement, the
employer was required to pay to the respondent the all-inclusive sum of
$12,000, less any statutory deductions, and to provide a neutral letter of
reference. The respondent was required to resign her employment, return her
employer’s property, withdraw her grievance and release her employer from any
liability with respect to any claims that may arise regarding the employment or
the cessation of the employment. The respondent subsequently executed a release
(containing the customary non-admission of liability clause) on February 2,
2010.
[4]
The
respondent informed the Employment Insurance Commission (the Commission) that
she had received $9,600 (net) from her employer. The Commission deducted the
$12,000 (gross) from the benefits received by the respondent. The Commission
determined, after deduction, that there was an overpayment of $1,536.
[5]
The Board
concluded, on the basis of this Court’s decisions in Canada v. Plasse
(2000), 261 N.R. 380 (F.C.A.) (Plasse) and Meechan v. Canada (Attorney
General), 2003 FCA 368 (Meechan), that sums received from the
relinquishment of a right to reinstatement are not deductible earnings. It
determined that the respondent, at the time of entering the settlement
agreement, had a right to be reinstated because her employment had not been
terminated, and she was therefore in a position to “re-establish her office.”
[6]
The
Attorney General (the Crown) appealed the Board’s decision. The Umpire
determined that the question at issue was one of mixed fact and law, reviewable
on a standard of review of reasonableness. The Umpire concluded that it was
open to the Board to find that the monies were paid in consideration for the
respondent relinquishing her right to reinstatement.
[7]
It is
common ground that, unless the payment can be characterized as compensation for
relinquishment of the right to reinstatement, it is properly allocated under
the provisions of the Employment Insurance Act, S.C. 1996, c. 23 (the
Act) and the Employment Insurance Regulations, SOR/96-332 (the
Regulations).
[8]
In our
view, the Board and, in turn, the Umpire misinterpreted the law stated in Plasse
and Meechan. The legal principle to be taken from these authorities was
succinctly stated in the decision of this Court in Attorney General of
Canada v. Cantin, 2008 FCA 192 (Cantin). There, the Court stated
that, in federal law, the right to reinstatement is an employee’s right to
resume his or her position following a wrongful dismissal. In such
circumstances, compensation to relinquish the right to reinstatement following
a wrongful dismissal does not constitute earnings within the meaning of the Act
and the Regulations (Cantin, para. 33). However, wrongful dismissal is a
prerequisite to a right to reinstatement.
[9]
The
respondent was not wrongfully dismissed. To the contrary, until she tendered
her resignation, her employer considered her to be an absentee employee.
Indeed, the employer’s pre-settlement position was that the respondent could be
subject to disciplinary action upon her return to the workplace. The
respondent’s resignation was a term of the settlement agreement; the right to
be reinstated did not arise and was not negotiable. The Board, in essence,
considered that a return to the status quo was equivalent to a right to
reinstatement. That is not so. In failing to properly interpret and apply the
law, the Board erred. Its application of its erroneous interpretation of the
law to the facts rendered its decision unreasonable. The Umpire erred by
failing to correct the Board’s error.
[10]
For these
reasons, the application for judicial review will be allowed. The decision of
the Umpire will be set aside and the matter will be returned to the Chief
Umpire, or his designate, for redetermination on the basis that the payment
received by the respondent did not constitute compensation for relinquishment
of a right to be reinstated. The Crown did not request costs and none will be
awarded.
"Carolyn
Layden-Stevenson"
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-280-11
APPEAL
FROM A DECISION OF THE UMPIRE L.P. LANDRY, DATED APRIL 29, 2011, CUB 76966
STYLE OF CAUSE: Attorney
General of Canada v. Deja Warren
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: March 6, 2012
REASONS FOR JUDGMENT OF THE
COURT BY: BLAIS
C.J., EVANS AND LAYDEN-STEVENSON JJ.A.
DELIVERED FROM THE BENCH BY: LAYDEN-STEVENSON
J.A.
APPEARANCES:
|
Amy Smeltzer
|
FOR
THE APPLICANT
|
|
Thomas J. Yachnin
|
FOR
THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
Myles
J. Kirvan
Deputy
Attorney General of Canada
|
FOR THE APPLICANT
|
|
Thomas J. Yachnin
B.C.
Government and Services Employee’s Union
|
FOR THE RESPONDENT
|
Email this Content