Date:
20110615
Docket:
A-434-10
Citation: 2011 FCA 205
CORAM: BLAIS
C.J.
SHARLOW
J.A.
TRUDEL
J.A.
BETWEEN:
ATTORNEY
GENERAL OF CANADA
Applicant
and
GEORGE HAMM
Respondent
REASONS FOR
JUDGMENT
TRUDEL J.A.
Introduction
[1]
This
is an application for judicial review by the Attorney General of Canada of
Umpire Durocher’s decision in CUB 75288 dealing with the respondent’s
eligibility for benefits under a Long-Tenured Worker (LTW) program created
pursuant to An Act to amend the Employment
Insurance Act and to increase benefits, S.C. 2009, c. 30 (referred to
colloquially as “Bill C-50”). The Umpire’s interpretation of subsections 10(6),
10(8) and 50(10) of the Employment Insurance Act, S.C. 1996, c. 23 (the
Act), as applied to the request of the respondent Mr. Hamm for LTW status, is
at the core of this application.
[2]
I
would allow the application for the reasons that follow.
The relevant facts
[3]
In
the course of his employment, Mr. Hamm filed for work-sharing benefits
and a claim was established effective November 2, 2008. This type of benefit is
available following an agreement between workers and the employer resulting in
a reduction of hours of work. Such arrangements must be approved by the
Commission which recognizes that, under certain circumstances, they are
preferable to lay-offs. Section 24 of the Act specifically deals with
work-sharing, along with Regulations 42 through 49 of the Employment
Insurance Regulations, SOR/96-332, (the Regulations).
[4]
Of
course, employees participating in a work-sharing program will be eligible for
regular benefits if they become unemployed. This is what happened to Mr. Hamm.
[5]
The
record shows that Mr. Hamm was paid $87 in work-sharing benefits in 2008. Then,
he became unemployed and filed a renewal claim for benefits on February 18,
2009. It was accepted and made effective February 15, 2009 as an extension of
the claim established effective November 2, 2008. As a result, the respondent’s
benefits were converted from work-sharing benefits to regular benefits as of
February 15, 2009.
[6]
In
November 2009, the respondent inquired with the Commission about being approved
for LTW status. His inquiries followed the enactment, on November 5, 2009, of
Bill C-50, which was adopted to assist long tenure workers who lost their
employment as a result of the recession in the late 2000 years. Bill C-50
amended the Act until September 11, 2010 to increase the maximum number of weeks
for which benefits could be paid to certain claimants.
[7]
The
respondent’s request was denied because he did not meet the requirements for
eligibility set out in Bill C-50: a claimant’s benefit period had to have been
established between January 4, 2009 and September 11, 2010. The benefit period
of Mr. Hamm had been established on November 2, 2008. Moreover, it was found
that Mr. Hamm had not shown good cause to have his claim postdated due to the
implementation of Bill C-50 (Commission’s decision letter of December 17, 2009,
applicant’s record, tab 3B at page 46).
[8]
Mr.
Hamm successfully appealed the Commission’s decision to the Board of Referees,
which decision was upheld by the Umpire. Ensued the within application by the
Commission.
The decision of the
Board of Referees
[9]
The
Board of Referees allowed the appeal under subsection 10(6) of the Act. It was
of the view that the Commission misinformed the respondent when he submitted
his claim for benefits in February 2009. The respondent’s evidence, which the
Board of Referees found credible, is summarized as follows:
…the Commission staff advised
him that his best option was to reactivate his existing claim of November…
2008. At no time, during the Commission interview was the [respondent] advised
of the [LTW] program and how best to file that type of application to allow him
to be considered for the [LTW] program. The [respondent] had requested the
Commission staff to provide him with all his options and what would be best for
him (Board of Referees’ decision, applicant’s record, volume 1, tab 3B at page
65).
[10]
The
Board of Referees went on to say that the Commission staff had “either ignored
or omitted to advise the [respondent] of the [LTW] program and how to best
apply as a new claim” (ibidem at page 66). Taking support from a
previous decision in CUB 13260, the Board of Referees held that:
…where the Commission fails to
advise a claimant as to the options available (i.e. cancellation) when a renew
claim is filed, cancellation may be possible (ibidem).
The Decision of the
Umpire
[11]
The
Umpire found that the Commission had failed to inform Mr. Hamm, “at the time he
applied for benefits in February 2009, and thereafter,” that he could qualify
for benefits under the [LTW] program (Umpire’s decision, applicant’s record,
tab 3B at page 13). After mentioning that work-sharing benefits are not regular
benefits, the Umpire noted that “(a)ccording to the docket, in 2008, only one
day of benefits was paid to [Mr. Hamm]” (ibidem at page 14). From these
findings, he drew two conclusions: (a) the benefit period, established in
November 2008, had ended under subsection 10(8) of the Act; (b) when Mr. Hamm
became unemployed in February 2009, he should have been advised to enter a new
claim under the LTW program, “which was then available” (ibidem).
[12]
Having
found
that an agent of the Commission had wrongly advised Mr. Hamm and on the basis
that neither Mr. Hamm nor the Commission can plead ignorance of the law, the
Umpire took comfort from the dissenting opinion of Hugessen J.A. (as he then
was) in the case of Granger v. Canada (Employment and Immigration Commission)
(C.A.), [1986] 3 F.C. 70, affirmed [1989] 1 S.C.R. 141 [Granger], to hold that “the
Commission had the authority to cancel the November 2008 claim or payment if it
decided that this was the obstacle to a claim under the [LTW] provisions” (ibidem).
[13]
Finally,
and
because he saw “some form of retroactivity” in Bill C-50, the Umpire expressed
the view that the Commission could also “have waived or varied the conditions
and requirements, in order to rectify the situation, under the provisions of
subsection 50(10) of the Act” (ibidem at pages 15 and 16). He therefore
dismissed the appeal by the Commission and reserved Mr. Hamm’s rights to apply
for LTW status.
[14]
With
respect,
I conclude that the decision of the Board of Referees and the Umpire are based
on an incorrect interpretation of the relevant provisions of the Act, as well
as a palpable and overriding error of fact. It follows that the Umpire’s
decision confirming the decision of the Board of Referees cannot stand.
Analysis
A. The Relevant Legislation
[15]
Section
10 of the Act contains rules regarding commencement, length and termination of
a claimant’s benefit period. For the purposes of this application, it suffices
to know that subject to the exceptions mentioned in the Act, a benefit period
generally lasts 52 weeks (subsection 10(2)). Specifically, as explained further
in the discussion about the LTW provisions, that 52 week period is
automatically extended by the number of weeks in which a claimant is employed
in work-sharing employment (Regulation 45). Moreover, a benefit period will not
be established if one is already in progress. A benefit period terminates on
the occurrence of one of the events mentioned in subsection 10(8) while a
benefit period may be cancelled where the conditions of subsection 10(6) are
met.
[16]
In
its relevant parts, section 10 reads:
|
Beginning of
benefit period
10. (1) A benefit period begins on the later of
(a) the
Sunday of the week in which the interruption of earnings occurs, and
(b) the
Sunday of the week in which the initial claim for benefits is made.
Length of
benefit period
(2) Except as otherwise provided in subsections
(10) to (15) and section 24, the length of a benefit period is 52 weeks.
…
Cancelling
benefit period
(6) Once a benefit period has been established
for a claimant, the Commission may
(a) cancel
the benefit period if it has ended and no benefits were paid or payable
during the period; or
(b)
whether or not the period has ended, cancel at the request of the claimant
that portion of the benefit period immediately before the first week for
which benefits were paid or payable, if the claimant
(i) establishes
under this Part, as an insured person, a new benefit period beginning the
first week for which benefits were paid or payable or establishes, under Part
VII.1, as a self-employed person within the meaning of subsection 152.01(1),
a new benefit period beginning the first week for which benefits were paid or
payable, and
(ii) shows that
there was good cause for the delay in making the request throughout the
period beginning on the day when benefits were first paid or payable and
ending on the day when the request for cancellation was made.
…
End of
benefit period
(8) A benefit period ends when any of the
following first occurs:
(a) no
further benefits are payable to the claimant in their benefit period,
including for the reason that benefits have been paid for the maximum number
of weeks for which benefits may be paid under section 12;
(b) the
benefit period would otherwise end under this section; or
(c)
[Repealed, 2002, c. 9, s. 12]
(d) the
claimant
(i) requests that
their benefit period end,
(ii) makes a new
initial claim for benefits under this Part or Part VII.1, and
(iii) qualifies,
as an insured person, to receive benefits under this Part or qualifies, as a
self-employed person within the meaning of subsection 152.01(1), to receive
benefits under Part VII.1.
|
Début de la
période de prestations
10. (1) La période de prestations débute, selon le
cas :
a) le dimanche de la semaine au cours de laquelle
survient l’arrêt de rémunération;
b) le dimanche de la semaine au cours de laquelle
est formulée la demande initiale de prestations, si cette semaine est postérieure
à celle de l’arrêt de rémunération.
Durée de la
période de prestations
(2) Sous réserve des paragraphes (10) à (15) et
de l’article 24, la durée d’une période de prestations est de cinquante-deux
semaines.
[…]
Annulation de
la période de prestations
(6) Lorsqu’une période de prestations a été
établie au profit d’un prestataire, la Commission peut :
a) annuler cette période si elle est terminée et
si aucune prestation n’a été payée, ou ne devait l’être, pendant cette
période;
b) à la demande du prestataire, que la période
soit ou non terminée, annuler la partie de cette période qui précède la
première semaine à l’égard de laquelle des prestations ont été payées ou
devaient l’être si :
(i) d’une part,
une nouvelle période de prestations, commençant cette semaine-là, est, si ce
prestataire est un assuré, établie à son profit au titre de la présente
partie ou est, si ce prestataire est un travailleur indépendant au sens du
paragraphe 152.01(1), établie à son profit au titre de la partie VII.1;
(ii) d’autre
part, le prestataire démontre qu’il avait, durant toute la période écoulée
entre la date à laquelle des prestations lui ont été payées ou devaient
l’être et la date de sa demande d’annulation, un motif valable justifiant son
retard.
[…]
Fin de la période
(8) La période de prestations prend fin à la date
de la première des éventualités suivantes à survenir :
a) le prestataire n’a plus droit à des prestations
au cours de sa période de prestations, notamment parce qu’elles lui ont été
versées pour le nombre maximal de semaines prévu à l’article 12;
b) la période se trouverait autrement terminée au
titre du présent article;
c) [Abrogé, 2002, ch. 9, art. 12]
d) le prestataire, à la fois :
(i) demande de
mettre fin à une période de prestations établie à son profit,
(ii) formule une
nouvelle demande initiale de prestations au titre de la présente partie ou de
la partie VII.1,
(iii) remplit les
conditions qui lui donnent droit aux prestations prévues par la présente
partie, dans le cas où il est un assuré, ou par la partie VII.1, dans le cas
où il est un travailleur indépendant au sens du paragraphe 152.01(1).
|
[17]
As
mentioned
earlier, section 24 of the Act deals with work-sharing benefits. The regulatory
scheme relating to these particular benefits is set out in Regulations 42 to 49.
Of particular interest to this application are Regulations 42, 45 and 46, which
vary the general rules in such matters as the extension of a qualifying period
or benefit period (not exceeding the number of weeks of the work-sharing employment)
and the deferral of all or part of the waiting period until the work-sharing
employment has terminated.
[18]
They
read:
|
Work-Sharing Benefits
42. Work-sharing benefits are payable to a claimant
who is employed in work-sharing employment for each week of unemployment that
falls in a benefit period established for the claimant, and subject to
sections 43 to 49, the Act and any regulations made under the Act apply to
the claimant, with such modifications as the circumstances require.
…
45. Where
a benefit period has been established in respect of a claimaint and for any
week during that benefit period the claimant is employed in work-sharing
employment, the benefit period shall be extended by the total of those weeks
and subsections 10(12) to (15) of the Act apply, with such modifications as
the circumstances require.
46. Where a claimant becomes employed in
work-sharing employment and a waiting period or any portion of that period
has not been served by the claimant as required by section 13 of the Act or
earnings have not been deducted as required by subsection 19(1) of the Act,
the serving of the period or the deduction of the earnings shall be deferred
until that employment has terminated.
|
Prestations pour travail
partagé
42. Des prestations pour travail partagé sont
payables au prestataire qui exerce un emploi en travail partagé pour chaque
semaine de chômage comprise dans une période de prestations établie à son
profit et, sous réserve des articles 43 à 49, la Loi et ses règlements
s’appliquent au prestataire, avec les adaptations nécessaires.
[…]
45. Lorsqu’une période
de prestations a été établie au profit du prestataire et que celui-ci exerce
un emploi en travail partagé au cours d’une ou plusieurs semaines de cette
période, celle-ci est prolongée du nombre de ces semaines et les paragraphes
10(12) à (15) de la Loi s’appliquent, avec les adaptations nécessaires.
46. Lorsque le
prestataire commence à exercer un emploi en travail partagé et que le délai
de carence prévu à l’article 13 de la Loi n’est pas écoulé ou que les
déductions visées au paragraphe 19(1) de la Loi n’ont pas été effectuées, le
délai de carence ou la partie non écoulée de celui-ci ou les déductions sont
reportés jusqu’à la fin de l’emploi en travail partagé.
|
B. Standard of Review
[19]
Sitting
in judicial review, this Court is required to determine if, in his review of
the decision of the Board of Referees, the Umpire erred in the selection of the
correct standard of review and its application to that decision (MacNeil v.
Canada (Employment Insurance Commission), 2009 FCA 306 at paragraph 19).
[20]
The
Umpire’s task is to review the Board of Referee’s determinations on questions
of law on a standard of correctness and its determinations on questions of fact
and mixed fact and law on a standard of reasonableness (Attorney General of
Canada v. White, 2011 FCA 190 at paragraph 2).
C. Mr. Hamm’s
benefit period had not ended under subsection 10(8) of the Act
[21]
The
Umpire accepted the fact that in the context of the work-sharing program, a
benefit period had been established in favour of Mr. Hamm in November 2008. However,
he concluded that the benefit period had ended pursuant to subsection 10(8) of
the Act. While
the Umpire was free to rely on any relevant section of the Act, I note that
reliance on subsection 10(8) was his choice, as the Board of Referees had
grounded its decision on subsection 10(6). I infer from the Umpire’s reasons on
this topic that he more particularly relied on paragraph 10(8)(a), which
provides for
the end of a benefit period when benefits are no longer payable. Indeed, the
Umpire found that (1) only one day of benefits was paid to the claimant in
November 2008; and (2) work-sharing benefits are not regular benefits (Umpire’s
decision, applicant’s record, tab 3B at pages 13 and 14).
[22]
There
is
no doubt that work-sharing benefits are different than regular benefits. The
first ones are reserved for individuals who participate in work-sharing
programs where they receive their wages for the time worked and unemployment benefits
for the days they do not work. They are specifically excluded from the
statutory definition of “regular benefits” under subsection 2(1) of the Act.
This difference, however, does not justify the conclusion reached by the
Umpire.
[23]
I
agree with
the Attorney General of Canada that Mr. Hamm did not meet the conditions of
paragraph 10(8)(a) of the Act. It could not be said that Mr. Hamm had
been paid benefits for the maximum number of weeks for which benefits
could be paid in his benefit period. Moreover, the change in type of benefits
did not signal the end of the benefit period established in November 2008.
Claimants may receive more than one type of benefits within the same benefit
period, Canada (Attorney
General) v. Brown, 2001 FCA 385 at paragraph 6.
[24]
At
the hearing of this application, it was not contested that, in accordance with
Regulations 45 and 46, Mr. Hamm’s benefit period had consisted of 61 weeks, rather
than the usual 52 weeks. It ran between November 2008 and January 2010.
[25]
Paragraph
10(8)(d)
also provides that a benefit period may end upon request by a claimant. The
same can be said for the cancellation of a benefit period (paragraph 10(6)(b)).
Of course, no such requests were made by Mr. Hamm. I discuss this matter below
when dealing with the Umpire’s conclusion that the Commission misinformed Mr.
Hamm.
D. Mr. Hamm’s benefit period could
not be cancelled under subsection 10(6) of the Act
[26]
Subsection
10(6)
of the Act, cited above, provides for the conditions under which the Commission
may cancel a benefit period. Here, Mr. Hamm’s benefit period could not be
cancelled in February 2009 under paragraph 10(6)(a) because benefits had
been paid in that period. He had received $87 in work-sharing benefits. Neither
could it be cancelled under paragraph 10(6)(b), unless the respondent
showed that between November 2008 (when the benefit period was established) and
November 2009 (when Mr. Hamm applied for LTW status), there was a good cause
for the delay in requesting the cancellation.
[27]
The
Umpire found that “[t]he circumstances as alleged by [Mr. Hamm], [did]
constitute good cause” (ibidem at page 15) because an agent of the
Commission had misinformed the respondent by not telling him to enter a new
claim under the LTW program. In that context, he found that “the Commission had
the power and authority to correct the error” (ibidem). Clearly, this
conclusion is based on an erroneous finding of fact.
[28]
As
argued by the Attorney General of Canada, the Commission could not advise the
respondent in February 2009 about his eligibility for LTW status and recommend
that he apply for a new benefit period because the LTW program did not exist at
the time. Bill C-50 was enacted on November 5, 2009 and made retroactive to
January 4, 2009. It was not introduced in the House of Commons until September
16, 2009 and in the Senate until November 4, 2009 (Canada Legislative Index, 40th
Parliament – 2nd session (January 26, 2009 – December 30, 2009)).
There was no evidence on record showing that the Commission should have known,
as early as February 2009, that Bill C-50 would be enacted or that it would
provide benefits for claimants establishing a benefit period starting on
January 4, 2009. None of the conditions set forth in subsection 10(6) were met.
[29]
In
this vein, it was wrong of the Umpire to rely on the dissenting opinion in Granger
and suggest that the Commission could either cancel or terminate Mr. Hamm’s
benefit period to bring him within the eligibility window of Bill C-50. Despite
the utmost respect that I have for Hugessen J.A. (as he then was), the fact
remains that the Supreme Court of Canada unanimously upheld the decision of our
Court in Granger for the reasons given by Pratte J.A. Since then, Granger
has been followed consistently (Satinder
v. Canada (Attorney General), 2002 FCA 491 at paragraph 9; Canada (Attorney General) v. Buors, 2002 FCA 372 at
paragraph 5; McCague v.
Canada (Minister of National Defence), 2001 FCA 228 at paragraph 37; Pfizer Inc. v. Canada
(Commissioner of Patents) (F.C.A.), [2000] F.C.J. No. 1801 at paragraph
24; Canada
(Attorney General) v. Duffenais (F.C.A.), [1993] F.C.J. No. 387 at paragraph
4; Barzan
v. Canada (Minister of Employment and Immigration) (F.C.A.), [1993] F.C.J. No. 311 at paragraph 2; Canada (Minister of Employment and Immigration) v.
Lidder
(F.C.A.), [1992] F.C.J. No. 212 at paragraphs 19 and 20; and Canada (Attorney General) v.
Young (F.C.A.), [1989] F.C.J. No. 634 at paragraph 40). Granger
stands for the proposition that “(a) judge is bound by the law. He cannot
refuse to apply it, even on grounds of equity” (Granger at paragraph 9).
E. The Commission
has no power to amend the Act
[30]
Finally,
in
a more general way, the Umpire’s decision is based on the erroneous premise
that the Commission could, using its discretionary power under subsection
50(10) of the Act, vary the conditions and requirements of subsections 10(6)
and 10(8), dealing with cancellation and ending of benefit periods, in order to
bring Mr. Hamm within the eligibility period of Bill C-50.
[31]
Subsection
50(10)
of the Act does not apply. It deals generally with procedural matters and
gives the discretionary authority to the Commission to relax the requirements
set out in section 50. It cannot be used to waive the conditions of any other
section of the Act (Paxton v. Canada (Attorney General), 2002 FCA 360
at paragraphs 11 and 12).
[32]
As
sympathetic as Mr. Hamm’s case may well have appeared to the Umpire, and as
unfair as the cut-off date in Bill C-50 may have been seen in that context, it
is trite law that an umpire is bound by the law and cannot simply apply equity
in order to benefit a claimant.
Conclusion
[33]
Therefore,
I would allow this application for judicial review. I would set aside the
decision of the Umpire in CUB 75288 and I would send the matter back to the Chief
Umpire or his designate with the direction that the decision of the Board of
Referees in Case Number 09-0209 be set aside and the decision of the Commission,
denying Mr. Hamm additional weeks of regular benefits under the LTW program, be
restored.
“Johanne
Trudel”
“I
agree
Pierre
Blais C.J.”
“I agree
K. Sharlow J.A.”
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