Date:
20081003
Docket: A-7-06
Citation: 2008 FCA 291
CORAM: DESJARDINS
J.A.
NADON
J.A.
PELLETIER
J.A.
BETWEEN:
LUC DÉRY
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
DESJARDINS
J.A.
[1]
The
applicant, by way of an application for judicial
review, is appealing two decisions (those dated July 18, 2005, and
November 21, 2005) by Umpire R.J. Marin, who dismissed the applicant’s appeal
and upheld the Board of Referees’ decision.
[2]
The
Umpire and the Board of Referees found that the amount of
$14,903.86 received by the applicant from a trustee in bankruptcy
represented a payment of $8,221.17 for vacation pay and a payment of
$6,682.69 for severance pay. The two amounts constituted earnings within
the meaning of section 35 of the Employment Insurance Regulations,
S.O.R./96-332 (the Regulations), and these earnings were to be allocated in
accordance with subsection 36(9) of the Regulations.
[3]
The
claimant was employed by the J. Ford Ltd. company from mid-September 2000
to June 29, 2001, on which date his employment was terminated because
of company restructuring.
[4]
On
July 3, 2001, his former employer filed a notice of
intention
to make a proposal under the Bankruptcy and Insolvency Act, R.S., 1985,
c. B-3. Some time later, the applicant filed a proof of claim with the trustee
for the amount of $72,923.10. This amount represented claims related to the
applicant’s interest in the Coopérative des papetiers de Portneuf, four weeks
of vacation pay owing, two weeks of severance pay, six months of salary
compensation, relocation assistance, a 4% bonus, a pension fund and wages
for July 2001.
[5]
The
trustee wrote to the applicant on October 24, 2001, to inform him that his
claim for $72,923.10 was rejected in part and that the amount of $14,903.86 was
allowed.
[6]
On
February 10, 2002, the Canada Employment Insurance
Commission sent the applicant a notice of overpayment in the amount of
$3,717.00.
[7]
The
applicant disputed the nature of this amount by claiming that the money had not
been allocated to him as severance pay, but rather as “dividends” and that his
accountant had informed him that such a payment would not affect the employment
benefits to which he was entitled (Respondent’s Record, page 40).
[8]
The
applicant explains at page 5 of his memorandum that [translation] “the question is whether Umpire Marin based his
decision on erroneous findings that he made in a perverse or capricious manner
or without regard for the material before him.” The applicant submits, among
other things, that according to the record, his former employer’s accountant,
Mr. B. L’Heureux, made a telephone statement on behalf of the employer
in which, [translation] “further
to a proposal, the trustee . . . paid [the applicant]
$14,903.86 for his claim for vacation and severance pay” (Respondent’s
Record, page 39). However, according to the applicant, Mr. L’Heureux was
not working for the trustee and did not have any access to the information
indicated on the ROE Information Correction form
(Respondent’s Record, page 39). The applicant adds, [translation] “Moreover, no evidence from the trustee was
presented throughout the various hearings to confirm the facts presented by
Exhibit number 6,” that is, the exhibit containing Mr. L’Heureux’s
statement.
[9]
Regarding
the concept of “dividends,” there is a document on record entitled [translation] “Report under paragraph
50(10)(b) of the Bankruptcy and Insolvency Act,” based on which
the trustee drew up a proposal that was going to enable the creditors of the J.
Ford Ltd. Company to receive [translation]
“a dividend” of nearly $3,000,000 (Respondent’s Record, page 38).
According to exhibits 12.1 and 12.2 on record, the Office of the Superintendent
of Bankruptcy Canada gives the following definition for the word “dividend”
(Respondent’s Record, pages 46‑47):
What is an Unclaimed Dividend?
Dividends are
amounts payable to individuals and businesses who have been creditors in either
a bankruptcy or a proposal under the Bankruptcy and Insolvency Act. Dividends
are disbursed to creditors by either a private-sector trustee or a proposal
administrator. Normally, the distribution would take place upon the completion
of a bankruptcy; however, in a proposal, dividends may be distributed at
various intervals throughout its administration.
[Emphasis
added.]
[10]
However,
as regards this application, the question that the Umpire and Board of Referees
should have asked was whether the two amounts received from the trustee
constituted earnings within the meaning of subsection 35(1) and paragraph
35(2)(a) of the Regulations, the relevant parts of which read as
follows:
|
35.
(1) The definitions in this subsection apply in this section.
…
“income”
means any pecuniary or non-pecuniary income that is or will be
received by a claimant from an employer or any other person, including a
trustee in bankruptcy. ( revenu )
…
(2) Subject to the other provisions of this section, the earnings to be taken
into account for the purpose of determining whether an interruption of
earnings has occurred and the amount to be deducted from benefits payable
under section 19 or subsection 21(3) or 22(5) of the Act, and to be taken
into account for the purposes of sections 45 and 46 of the Act, are the
entire income of a claimant arising out of any employment, including
(a) amounts
payable to a claimant in respect of wages, benefits or other remuneration
from the proceeds realized from the property of a bankrupt employer;
...
[Emphasis added.]
|
35.
(1) Les définitions qui suivent s’appliquent
au présent article.
…
«revenu»
Tout revenu en espèces ou non que le prestataire reçoit ou
recevra d’un employeur ou d’une autre personne, notamment un syndic de
faillite. ( income )
…
(2)
Sous réserve des autres dispositions du présent article, la rémunération
qu’il faut prendre en compte pour déterminer s’il y a eu un arrêt de
rémunération et fixer le montant à déduire des prestations à payer en vertu
de l’article 19 ou des paragraphes 21(3) ou 22(5) de la Loi, ainsi que pour
l’application des articles 45 et 46 de la Loi, est le revenu intégral du
prestataire provenant de tout emploi, notamment:
a)
les montants payables au prestataire, à titre de salaire, d’avantages ou
autre rétribution, sur les montants réalisés provenant des biens de son
employeur failli;
…
[Je souligne.]
|
[11]
Both
the Umpire and the Board of Referees found Mr. L’Heureux’s statement
establishing the nature of the amounts in issue to be credible. The applicant
cannot cast doubt on the truthfulness of the accountant’s statements through
mere allegations in his memorandum of fact and law. This Court can only review
the findings of fact based on the record as it stands.
[12]
In
fact, the applicant raised the same arguments before the Board of Referees, who
dismissed them as follows (Board of Referees’ decision, Respondent’s Record,
pages 107‑108):
[translation]
Evidence at
the hearing
The claimant
did not attend the hearing, but was represented by Michel Martel.
Mr. Martel entered a document (Exhibit 25) that he had given to the Umpire
in June 2004. He told us that the claimant had submitted a claim to the
trustee (Exhibit 15) following the employer’s bankruptcy. In the final
settlement, the trustee paid the claimant $14,903.86. The representative
attempted to prove that this amount does not in any way constitute vacation pay
because vacation pay is not a priority debt in bankruptcies. The amount is
for items listed in the document entered, i.e., COOP and RRSP contributions,
relocation assistance, and severance pay. The representative was unable to
provide any evidence, although he had contacted the trustee, but without
success.
[Emphasis
added.]
The applicant therefore did not meet his
burden of proof.
[13]
For
his part, the Umpire accepted Mr. L’Heureux’s statement (see paragraph 3
of the Umpire’s decision dated July 18, 2005, Respondent’s Record,
page 17). He then added, [translation]
“Further
investigation into why the claimant received these earnings is unnecessary.”
[14]
This
Court cannot intervene in the findings of fact made by the Umpire and Board of
Referees unless those findings were unreasonable, according to tests set out in
case law (Budhai v. Canada (Attorney General) (C.A.),
[2002] FCA 298; Dunsmuir v. New Brunswick, 2008 SCC 9). The findings in
this case are consistent with the evidence.
[15]
The
findings of law and the findings of mixed fact and law made by the Umpire and
Board of Referees concerning the concept of earnings and their allocation and
application in this case are also unassailable in that they are consistent with
this Court’s jurisprudence (Canada (Attorney
General) v. Roch, 2003 FCA 256, paragraph 34
et seq.; Fédération des caisses populaires Desjardins de Montréal et de
l'Ouest du Québec v. Canada, 2001 FCA 27, paragraph 92,
Noël J.A., dissenting, but not on this point).
[16]
I
would dismiss the application for judicial review.
[17]
The
respondent claims no costs.
“Alice
Desjardins”
“I
concur.
M. Nadon J.A.”
“I
concur.
J.D. Denis Pelletier J.A.”
Certified
true translation
Tu-Quynh
Trinh
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