Date: 20060713
Docket: A-475-05
Citation: 2006 FCA 258
CORAM: LÉTOURNEAU J.A.
SEXTON J.A.
MALONE J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
SUSAN PERRY
Respondent
REASONS FOR JUDGMENT
LÉTOURNEAU J.A.
[1] This is an application to set aside a decision of an Umpire (CUB 64220) who maintained a decision of a Board of referees, thereby granting unemployment benefits to the respondent.
[2] The applicant submits that the Umpire erred in law in his interpretation of the Employment Insurance Act, S.C. 1996, c. 23 (Act) and the Employment Insurance Regulations, SOR/96-332 (Regulations).
[3] At issue is the interpretation of sections 7 and 9 of the Act and subsection 14(1) of the Regulations. These provisions read:
| Qualifying for Benefits
7. (1) Unemployment benefits are payable as provided in this Part to an insured person who qualifies to receive them.
(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.
Benefit Period
9. When an insured person who qualifies under section 7 or 7.1 makes an initial claim for benefits, a benefit period shall be established and, once it is established, benefits are payable to the person in accordance with this Part for each week of unemployment that falls in the benefit period.
Interruption of Earnings
14. (1) Subject to subsections (2) to (7), an interruption of earnings occurs where, following a period of employment with an employer, an insured person is laid off or separated from that employment and has a period of seven or more consecutive days during which no work is performed for that employer and in respect of which no earnings that arise from that employment, other than earnings described in subsection 36(13), are payable or allocated.
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Conditions requises pour recevoir 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.
(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.
Période de prestations
9. Lorsqu'un assuré qui remplit les conditions requises aux termes de l'article 7 ou 7.1 formule une demande initiale de prestations, on doit établir à son profit une période de prestations et des prestations lui sont dès lors payables, en conformité avec la présente partie, pour chaque semaine de chômage comprise dans la période de prestations.
Arrêt de rémunération
14. (1) Sous réserve des paragraphes (2) à (7), un arrêt de rémunération se produit lorsque, après une période d'emploi, l'assuré est licencié ou cesse d'être au service de son employeur et se trouve à ne pas travailler pour cet employeur durant une période d'au moins sept jours consécutifs à l'égard de laquelle aucune rémunération provenant de cet emploi, autre que celle visée au paragraphe 36(13), ne lui est payable ni attribuée.
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[4] The question to be determined is whether the respondent meets the requirement of section 7 of the Act. For reasons that I will explain, I believe that the Umpire erred in his interpretation of section 7 and more particularly in his understanding and application of the definition of "interruption of earnings" to the facts of this case.
[5] Pursuant to subsection 7(2) of the Act, the respondent qualified for benefits if she had an interruption of earnings from employment. For an interruption of earnings to occur, three cumulative conditions must be met:
a) the respondent must have been laid off or separated from her employment;
b) she must not have performed work for seven or more consecutive days for that employer who laid her off; and
c) no earnings arising from that employment must be payable or allocated.
[6] The evidence in this case reveals that the first, and possibly the second, condition of the definition were not met. Therefore, it could not be said that the respondent suffered an interruption of earnings and, consequently, qualified for benefits.
[7] As a matter of fact, the respondent provided child care to her granddaughter. She was paid by her daughter from September 3, 2001 to August 8, 2003. On that last date, her daughter completed her study program sponsored by the Canada Insurance Employment Commission (Commission). She then began working on August 11, 2003. She ceased paying the respondent as she could not temporarily afford it. However, the respondent continued to provide benevolently the same child care services as before, in the hope of getting paid again in a few months when her daughter could afford to do so.
[8] Although the respondent filed with the Commission a declaration that she had been laid off, it cannot be doubted that she was in fact still working for her employer during the period for which she claimed benefits: see Attorney General of Canada v. Buckley, A-427-99, January 23, 2001.
[9] A similar situation arose in Canada(Attorney General) v. Enns (1990), 126 N.R. 393 where a clergyman worked on a temporary basis for a congregation other than his. He was paid for his services from Spring 1986 to August 1986 at which time the remuneration ceased. Then, from May 1987 to October 3, 1987, he was hired on a full-time basis by that congregation. He was laid off again due to the lack of funds.
[10] However, the clergyman, while laid off or not employed on a full-time basis, continued to work for the congregation some 60 to 70 hours a week and received a car allowance of $100 a month. His duties and commitments were the same as those he had when he was paid a salary.
[11] This Court was called upon to determine whether there was, in these circumstances, an interruption of earnings pursuant to the definition of that term in the Regulations. The definition then found in subsection 37(1) is to the same effect as that of the actual subsection 14(1).
[12] Writing for the Court, Mahoney J.A. concluded that there was no layoff. The Court was of the view that the evidence of a layoff was not conclusive as the contract of service with the congregation continued in effect since the clergyman was expected to continue to do exactly what he had done while being paid and, in fact, did precisely that.
[13] In my view, as in the Enns' case, there was, in this instance, no layoff from employment.
[14] In addition, even if it could be said that there was an actual layoff of the respondent from her employment by her employer, there were no seven or more consecutive days following that layoff during which no work was performed for that employer.
[15] Had the Umpire not misconstrued the Act and the Regulations, he would have intervened to correct the errors committed by the Board in respect of the respondent's qualification for and entitlement to benefits.
[16] It is with no pleasure that I have reached this conclusion. However, our Court is bound to follow the law, as harsh as it may appear in the circumstances of this very sympathetic case.
[17] For these reasons, I would allow the application for judicial review, but without costs in the circumstances. In any event, the applicant did not seek them. I would set aside the decision of the Umpire and refer the matter back to the Chief Umpire, or a designated Umpire, for a new determination on the basis that the respondent had no interruption of earnings and, therefore, did not qualify for benefits under subsection 7(2) of the Employment Insurance Act.
"Gilles Létourneau"
"I agree
J. Edgar Sexton J.A."
"I agree
B. Malone J.A."
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