Date:
20080923
Docket: A-373-07
Citation: 2008 FCA 283
CORAM: DESJARDINS
J.A.
NOËL
J.A.
TRUDEL
J.A.
BETWEEN:
ROY THÉRIAULT
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT OF THE
COURT
DESJARDINS J.A.
Introduction
The issue in this case, an issue raised proprio motu
by the Court, is whether it was open to the Umpire to decide on the earnings
and allocation of amounts received by the applicant, Roy Thériault, without
first verifying that there had been an interruption of earnings within the
meaning of the Employment Insurance Act (S.C. 1996, c. 23) and
Regulations (Employment Insurance Regulations, S.O.R./96-332).
[1]
We have
before us the applicant’s application for judicial review of a decision of the
Umpire dated June 28, 2007. That decision sets aside the one made by the
Board of Referees that granted Mr. Thériault’s application to cancel a
notice of allocation issued in accordance with sections 35 and 36 of the
Regulations and a notice of debt in the amount of $1901.00 issued by the
Employment Insurance Commission.
[2]
The
dispute, as expressed by the parties, essentially concerns an overpayment and
the legal effect that an amount offered to the applicant by the employer’s
insurer as a wage replacement indemnity, which amount the applicant refused to
cash, would have on the calculation of employment insurance benefits.
[3]
Before
addressing the dispute referred by the parties, there is still the issue of the
applicant’s actual eligibility for employment insurance benefits.
Facts
[4]
The
applicant made a claim for “regular” employment insurance benefits, effective
October 9, 2005 (Applicant’s Memorandum, paragraph 2).
[5]
The
applicant states, in his initial claim for benefits (Applicant’s Record,
page 44), that he filed a record of employment at a Service Canada Centre
located in New Brunswick.
[6]
The
applicant cited a [translation]
“shortage of work” as the reason for his claim (Respondent’s Record, Exhibit
2-7; Applicant’s Record, page 42).
[7]
Neither
the Applicant’s Record nor the Respondent’s Record contains a copy of the
record of employment.
[8]
Despite
the grounds of shortage of work stated in his initial claim dated
October 2005, the applicant states that he was suspended from the work
place as of January 5, 2006, while still receiving his wages from the
employer during a period of approximately 10 weeks from the start of January 2006
until March 10, 2006 (Applicant’s Memorandum, paragraph 3).
[9]
The
applicant claims that the employer asked him to see a doctor, which he says he
did in January 2006 without having obtained medical leave at that time
(Applicant’s Record, page 96).
[10]
However,
the employer states that it had suspended the applicant from its place of
employment [translation] “since
it deemed the man to be a danger to himself and to the other employees”
(Applicant’s Record, page 98). There is no evidence in the record that
supports this allegation, which the applicant refutes. The applicant even filed
a petition signed by the other employees, in which they denied the employer’s
statement on this matter.
[11]
On the
contrary, the applicant maintains that he was available and fit for work as of
January 2006.
[12]
It was not
until June 7, 2006, that the applicant obtained a medical certificate
certifying his inability to work for medical reasons. The period of illness
continued until August 2006 when another medical certificate was issued,
this one certifying that the applicant was fit to return to work, which he did
as of September 6, 2006.
[13]
The
applicant claims that he requested a record of employment in January 2006,
but did not receive one (Applicant’s Record, page 96).
[14]
This claim
by the applicant is corroborated by the version of the employer, which claims
that it did not issue a record of employment (Applicant’s Record,
page 95).
Decision
of the Umpire
[15]
The
Umpire’s opinion was that the monetary amounts received by the applicant as
wages and wage loss indemnity payments were earnings within the meaning of
subparagraph 35(2)(c)(i) of the Regulations, which under subsection
36(12) of the Regulations should be allocated to the weeks in respect of which
the payments are paid or payable. He thereby confirmed the Commission’s
decision and overturned the decision of the Board of Referees that had ruled in
favour of the applicant.
Analysis
[16]
It is not
possible to determine from the record as it stands whether there was an
interruption of earnings from the applicant’s employment. This is an essential
condition to be entitled to receive unemployment benefits. Subsection 7(1) of
the Act sets forth that unemployment benefits are payable to an insured person
who qualifies to receive them. Subsection 7(2) of the Act stipulates that one
of these conditions is “an interruption of earnings from employment.”
[17]
The
insured person declared that there had been “shortage of work”, but the
employer did not issue a record of employment, contrary to subsection 19(2) of
the Regulations, which requires the employer to do so in respect of a person
employed by the employer in insurable employment who has an interruption of
earnings. Indeed, paragraph 19(3)(a) of the Regulations requires the
employer to issue a record of employment “not later than five days after the
later of (i) the first day of the interruption of earnings, and (ii) the day on
which the employer becomes aware of the interruption of earnings.” In this
case, the employer continued to pay wages to the applicant and itself made the
necessary requests for the applicant to receive short-term disability insurance
benefits from Great West Life, the employer’s insurer.
[18]
The Umpire
made an error of law in failing to consider whether the applicant was entitled
to unemployment benefits under the circumstances. Without an “interruption of
earnings” within the meaning of subsections 7(1) of the Act and 19(2) of the
Regulations, the applicant was not entitled to the benefits and the Commission
had no jurisdiction in this matter. It was not open to the Commission to rule
on the earnings and allocation until after it had ascertained that the
applicant was entitled to receive unemployment benefits.
[19]
The
application for judicial review should be granted without costs, for the sole
purpose of quashing the Umpire’s decision for want of jurisdiction of the
Commission.
“Alice Desjardins”
“I
concur.
Noël
J.A.”
“I
concur.
Johanne
Trudel J.A.”
Certified true translation
Sarah
Burns
Appendix
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Employment
Insurance Act
(1996, c.
23)
Qualifying
for Benefits
Benefits
payable to persons who qualify
7. (1)
Unemployment benefits are payable as provided in this Part to an insured
person who qualifies to receive them.
Qualification
requirement
(2) An insured
person, other than a new entrant or a re-entrant to the labour force,
qualifies if the person
(a) has had
an interruption of earnings from employment; and
(b) has had
during their qualifying period at least the number of hours of insurable
employment set out in the following table in relation to the regional rate of
unemployment that applies to the person.
…
Employment
Insurance Regulations (SOR/96-332)
Record of
Employment
19. (2) Every
employer shall complete a record of employment, on a form supplied by the
Commission, in respect of a person employed by the employer in insurable
employment who has an interruption of earnings.
(3) Subject
to subsection (4), copies of the record of employment completed pursuant to
subsection (2) shall be distributed by the employer in the following manner:
(a) the
employee's copy shall be delivered to the insured person not later than
five days after the later of
(i) the first
day of the interruption of earnings, and
(ii) the day on
which the employer becomes aware of the interruption of earnings;
(b) the
Commission's copy shall be sent to the Commission within the time limit set
out in paragraph (a); and
(c) the
employer's copy shall be kept and retained as a part of the employer's
records and books of account in accordance with subsection 87(3) of the
Act.
…
(5) Where an
employer has failed to deliver a record of employment to an insured person or
to the Commission or the employer is not available or is unable to provide
information respecting the record of hours of insurable employment and the
insurable earnings of that person because the employer's records are
destroyed or lost, the person, on becoming a claimant, may provide, in
respect of their hours of insurable employment and insurable earnings, a
statement containing evidence of the hours and earnings.
…
(Emphasis added)
|
Loi
sur l’assurance-emploi
(1996,
ch. 23)
Conditions
requises pour recevoir des prestations
Versement
des prestations
7.
(1) Les prestations de chômage sont payables, ainsi que le prévoit la
présente partie, à un assuré qui remplit les conditions requises pour les
recevoir.
Conditions
requises
(2)
L’assuré autre qu’une personne qui devient ou redevient membre de la
population active remplit les conditions requises si, à la fois :
a)
il y a eu arrêt de la rémunération provenant de son emploi;
b)
il a, au cours de sa période de référence, exercé un emploi assurable pendant
au moins le nombre d’heures indiqué au tableau qui suit en fonction du taux
régional de chômage qui lui est applicable.
[…]
Règlement
sur l’assurance-emploi (DORS/96-332)
Relevé
d’emploi
19.
(2) L’employeur établit un relevé d’emploi, sur le formulaire fourni
par la Commission, lorsque la personne qui exerce un emploi assurable à son
service subit un arrêt de rémunération.
(3) Sous réserve du paragraphe (4), l’employeur distribue de la façon
suivante les exemplaires du relevé d’emploi établi conformément au paragraphe
(2) :
a) il
remet l’exemplaire de l’employé à l’assuré dans les cinq jours suivant le
dernier en date des jours suivants :
(i)
le premier jour de l’arrêt de rémunération,
(ii)
le jour où il prend connaissance de l’arrêt de rémunération;
b)
il envoie l’exemplaire de la Commission à celle-ci dans le délai visé à
l’alinéa a);
c)
il garde l’exemplaire de l’employeur et le verse aux registres et livres
comptables qu’il est tenu de conserver selon le paragraphe 87(3) de la Loi.
[…]
(5)
Si l’employeur n’a pas remis de relevé d’emploi à l’assuré ou à la
Commission, ou si l’employeur ne peut être rejoint ou est, du fait de la
destruction ou de la perte de ses registres, incapable de fournir les
renseignements relatifs à l’état des heures d’emploi assurable et de la
rémunération assurable de l’assuré, celui-ci peut, dès qu’il devient
prestataire, fournir une déclaration, avec preuves à l’appui, de ses heures
d’emploi assurable et de sa rémunération assurable.
[…]
(mon soulignement)
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