Date:
20080401
Docket:
A-368-06
Citation:
2008 FCA 117
CORAM: SEXTON
J.A.
SHARLOW
J.A.
PELLETIER
J.A.
BETWEEN:
THE ATTORNEY
GENERAL OF CANADA
Applicant
and
MICHELLE
ROMANO
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Toronto, Ontario, on April 1, 2008)
SEXTON J.A.
[1]
On
April 22, 2005, Michelle Romano (the “respondent”) applied
for maternity and parental benefits pursuant to the Employment Insurance Act,
S.C. 1996, c. 23 (the “Act”). She had a record of employment which indicated
that she worked from August 1, 2004 to November 6, 2004. During that period she
accumulated 221 hours of work, as found by the Canada Employment Insurance
Commission (the “Commission”). She did not work after November 6, 2004 because
she was involved in a motor vehicle accident.
[2]
As
a result of her accident the respondent received income replacement benefits
provided by her insurance company from November 21, 2004 to January 24, 2005.
The respondent submitted that she intended to work long enough to qualify for
maternity benefits, but that she could not due to her motor vehicle accident.
[3]
In a unanimous decision, the Board of Referees
found that the respondent did not meet the minimum requirement of insured hours
of employment to establish a claim for benefits.
[4]
Nevertheless, before the Umpire, the respondent
argued that the insurance payments should have been considered insurable
earnings for the purposes of the Act. The Umpire agreed with the respondent’s
argument and overruled the Board of Referees in his decision dated June 26,
2006, numbered CUB 66224. The Attorney General of Canada (the “applicant”) has
applied for judicial review of this decision.
[5]
The
Umpire was concerned by the possibility that Employment Insurance (“EI”)
premiums were being deducted from the respondent’s income replacement benefits.
He assumed that if such deductions were being made, then the federal government
was unfairly collecting EI premiums on the one hand, but not counting her income replacement benefits as employable income or
otherwise for the purposes of the Act, on the other. He stated, at page 3 of
his decision,
When this matter came
before me, I was surprised to learn that employment insurance deductions have
been taken from this claimant’s income replacement benefits. […] By accepting
these payments of premiums, surely such income should be considered insurable
income, otherwise EI would not be entitled to these premiums.
It is my
opinion that Employment Insurance have to either return the employment
insurance premiums to the claimant as they are not considered to be payable as
this is not insurable hours under the Act or they should be estopped from
denying that the earnings received by the claimant by way of income replacement
benefits are not insurable earnings. I do not believe that the employment
insurance scheme can have it both ways. If they accept premiums, then surely
they are obliged to pay the claims.
[6]
The Umpire then concluded, at page 5 of his
decision:
For these
reasons the appeal of the claimant is allowed with at least the insurance
premiums returned to her, which have been paid into the employment insurance
fund. If, however, the arrangement was done with the complicity of the
employment insurance fund, then these earnings should be considered insured
earnings and the hours added to her 221 hours prior to her motor vehicle
accident. The appeal is allowed.
.
[7]
The
applicant argues that the Umpire exceeded his jurisdiction pursuant to section
90(1) of the Act in supplementing the hours of insurable employment found by
the Commission by the number of hours represented by income replacement
benefits when it was only open to the Minister of National Revenue to do so. An error of
jurisdiction ought to be reviewed on a standard of correctness: Dunsmuir v. New Brunswick 2008 SCC 9 at
paragraph 59.
[8]
The
majority’s reasons from this Court’s decision in Canada (A.G.). v.
Haberman,
(2000) 258 N.R. 150 (F.C.A.) are dispositive of this application for judicial
review. In that case the majority of this Court made it clear, at paragraphs 13
to 19, that the Minister of National Revenue has exclusive jurisdiction
to make a determination on how many hours of insurable employment a claimant
possesses for the purposes of the Act. The Haberman decision has been followed
by other
decisions in this Court.
Canada (A.G.) v.
Didiodato, [2002] F.C.J. No. 1321 (FCA)(QL) at p. 2, para. 2
Canada (A.G.) v. Thiara,
[2001] F.C.J. No. 1881 (FCA)(QL) at p. 1, para. 1
Canada (A.G.) v. Tuomi,
[2000] F.C.J. No. 1570 (FCA)(QL) at pp. 1-2, para. 3-4
Canada (A.G.) v. Hawryluk,
[2000] F.C.J. No. 071(FCA)(QL) at p. 4, para. 8
[9]
We
are therefore of the view that the Umpire exceeded his jurisdiction in making a
determination on this issue.
[10]
For
the reasons above we would allow the application for judicial review, set aside
the Umpire’s decision and remit the matter to the Chief Umpire or another
Umpire designated by him for redetermination on the basis that the Umpire
exceeded his jurisdiction, and should have dismissed the appeals.
“J. Edgar Sexton”
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