Date: 20120528
Docket: A-386-11
Citation: 2012 FCA
155
CORAM: NOËL J.A.
DAWSON
J.A.
BLANCHARD J.A. (ex officio)
BETWEEN:
ATTORNEY
GENERAL OF CANADA
Applicant
and
HARVEY
BARTHE
Respondent
Heard at Fredericton,
New Brunswick, on May 24,
2012.
Judgment
delivered at Ottawa, Ontario, on May 28, 2012.
REASONS FOR JUDGMENT BY: NOËL
J.A.
CONCURRED
IN BY: DAWSON J.A.
BLANCHARD J.A. (ex officio)
Date: 20120528
Docket:
A-386-11
Citation: 2012 FCA 155
CORAM: NOËL
J.A.
DAWSON J.A.
BLANCHARD
J.A. (ex officio)
BETWEEN:
ATTORNEY
GENERAL OF CANADA
Applicant
and
HARVEY BARTHE
Respondent
REASONS FOR
JUDGMENT
NOËL J.A.
[1]
The
applicant seeks judicial review of the decision of Umpire Goulard (the Umpire)
rendered on August 19, 2011 upholding a prior decision of the Board of Referees
(the Board) and confirming the respondent’s entitlement to benefits on the
basis that he had accumulated a sufficient number of hours of insurable
employment to qualify for benefits under the Employment Insurance Act,
S.C. 1996, c. 23 (the Act).
[2]
The
respondent attended at the office of the Employment Insurance Commission (the
Commission) to apply for benefits on Friday, December 3, 2010, one day before
the end of Pilot Project No. 13. Pilot Project No. 13 had the effect of
reducing the number of hours of insurable employment needed to qualify for
benefits from 910 to 840. However, the respondent did not have his Record of
Employment and was advised that he could not make an application for benefits
without this document. He returned the following Monday with his Record of
Employment and made his application.
[3]
The
Umpire rendered his decision on the assumption that the respondent would have
qualified if his claim had been considered to have been made on December 3,
2010. As the Commission does not usually require that the Record of Employment
be presented upon filing a claim, he held that the claim should be considered
to have been filed on that date rather than on December 6, 2010, thereby
allowing the respondent to qualify.
[4]
The
difficulty with the reasoning of the Umpire is that based on the requirements
of the Act – in particular subsections 8(1) and 10(1) which are reproduced in
the annex to these reasons – the respondent did not accumulate the required
number of hours to qualify for benefits whether he is considered to have filed
his claim on December 6, 2010 as determined by the Commission or on December 3,
2010 as found by the Umpire.
[5]
The
Umpire correctly assumed that if the respondent’s claim had been established on
December 3, 2010 he could have been considered under Pilot Project No. 13
which, pursuant to section 77.9 of the Employment Insurance Regulations,
SOR/96-332, had the effect of reducing the number of qualifying hours from 910
to 840. However, pursuant to subsection 10(1) of the Act, the benefit period
for the respondent would have started earlier since the first Sunday in the
week of the claim or the week in which there was an interruption of earnings
was November 28, 2010.
[6]
The
result is that pursuant to subsection 8(1) of the Act, the qualifying period
would end on Saturday, November 27, 2010 and any hours accumulated between
November 28 and December 3, 2010 would not count towards his total insurable
hours for that benefit period. The respondent accumulated 26 hours between
November 28 and December 3, 2010 (applicant’s record, tab 3, p. 46). Therefore,
the respondent’s total insurable hours for the 52 weeks prior to the benefit
period beginning on November 28, 2010 would have been 820 hours; 20 hours fewer
than required under Pilot Project No. 13.
[7]
On
the other hand if as determined by the Commission, the respondent established
his claim for benefits on December 6, 2010, the Sunday of the week in which the
initial claim was made (i.e. December 5, 2010) marks the beginning of the
benefit period (see subsection 10(1) of the Act). Pursuant to subsection 8(1)
of the Act, the qualifying period within which the respondent was required to
accumulate the necessary number of hours was 52 weeks immediately before the
benefit period which as noted would begin on December 5, 2010. The respondent’s
total insurable hours during this period was 846 (applicant’s record, tab 3,
pp. 43-46), less than the 910 hours required by paragraph 7(3)(b) of the
Act.
[8]
It
follows that the respondent did not qualify regardless of the day on which he
is considered to have filed his claim.
[9]
I
would allow the application for judicial review and return this matter to the
Chief Umpire or his designate so that the matter be decided again on the basis
that the claimant did not accumulate a sufficient number of hours to qualify
for benefits.
“Marc
Noël”
“I
agree
Eleanor R. Dawson J.A.”
“I
agree
Edmond P.
Blanchard J.A. (ex officio)”
ANNEX
- Employment
Insurance Act –
subsections 8(1) and 10(1):
|
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).
|
|
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.
|
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.
|
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-386-11
STYLE OF CAUSE: ATTORNEY
GENERAL OF CANADA and HARVEY BARTHE
PLACE OF HEARING: Fredericton, New Brunswick
DATE OF HEARING: May 24, 2012
REASONS FOR JUDGMENT BY: Noël J.A.
CONCURRED IN BY: Dawson J.A.
Blanchard
J.A. (ex officio)
DATED: May 28, 2012
APPEARANCES:
|
Julien Matte
|
FOR
THE APPLICANT
|
|
Harvey Barthe
|
FOR
THE RESPONDENT
(self-represented)
|
SOLICITORS OF RECORD:
|
Myles J. Kirvan
Deputy
Attorney General of Canada
|
FOR
THE APPLICANT
|
|
N/O
|
FOR
THE RESPONDENT
(self-represented)
|
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