Date: 20030311
Docket: A-65-02
OTTAWA, ONTARIO, MARCH 11, 2003
CORAM: DESJARDINS J.A.
NOËL J.A.
NADON J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
JACQUELINE GAGNON
Respondent
JUDGMENT
The application for judicial review is allowed, the decision of the Umpire is set aside and the matter is referred back to the Chief Umpire or to an Umpire designated by him for redetermination on the basis that the appeal by the Commission against the decision of the Board of Referees must be allowed and the decision of the Board of Referees be vacated.
"Alice Desjardins"
J.A.
Certified true translation
Suzanne Gauthier, C. Tr., LL.L
Date: 20030311
Docket: A-66-02
OTTAWA, ONTARIO, MARCH 11, 2003
CORAM: DESJARDINS J.A.
NOËL J.A.
NADON J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
JOHANNE CAUCHON
Respondent
JUDGMENT
The application for judicial review is allowed, the decision of the Umpire is set aside and the matter is referred back to the Chief Umpire or to an Umpire designated by him for redetermination on the basis that the appeal by the Commission against the decision of the Board of Referees must be allowed and the decision of the Board of Referees be vacated.
"Alice Desjardins"
J.A.
Certified true translation
Suzanne Gauthier, C. Tr., LL.L
Date: 20030311
Docket: A-67-02
OTTAWA, ONTARIO, MARCH 11, 2003
CORAM: DESJARDINS J.A.
NOËL J.A.
NADON J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
GILLES BOIVIN
Respondent
JUDGMENT
The application for judicial review is allowed, the decision of the Umpire is set aside and the matter is referred back to the Chief Umpire or to an Umpire designated by him for redetermination on the basis that the appeal by the Commission against the decision of the Board of Referees must be allowed and the decision of the Board of Referees be vacated.
"Alice Desjardins"
J.A.
Certified true translation
Suzanne Gauthier, C. Tr., LL.L
Date: 20030311
Docket: A-69-02
OTTAWA, ONTARIO, MARCH 11, 2003
CORAM: DESJARDINS J.A.
NOËL J.A.
NADON J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
JACQUELINE GAGNON
Respondent
JUDGMENT
The application for judicial review is allowed, the decision of the Umpire is set aside and the matter is referred back to the Chief Umpire or to an Umpire designated by him for redetermination on the basis that the appeal by the Commission against the decision of the Board of Referees must be allowed and the decision of the Board of Referees be vacated.
"Alice Desjardins"
J.A.
Certified true translation
Suzanne Gauthier, C. Tr., LL.L
Date: 20030311
Docket: A-67-02
A-65-02
A-66-02
A-69-02
Neutral Citation: 2003 FCA 125
CORAM: DESJARDINS J.A.
NOËL J.A.
NADON J.A.
A-67-02
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
GILLES BOIVIN
Respondent
A-65-02
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
JACQUELINE GAGNON
Respondent
A-66-02
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
JOHANNE CAUCHON
Respondent
A-69-02
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
JACQUELINE GAGNON
Respondent
Hearing held at Montréal, Quebec, on February 26, 2003.
Judgment delivered at Ottawa, Ontario, on March 11, 2003.
REASONS FOR JUDGMENT BY: NOËL J.A.
CONCURRING: DESJARDINS J.A.
NADON J.A.
Date: 20030311
Docket: A-67-02
A-65-02
A-66-02
A-69-02
Neutral Citation: 2003 FCA 125
CORAM: DESJARDINS J.A.
NOËL J.A.
NADON J.A.
A-67-02
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
GILLES BOIVIN
Respondent
A-65-02
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
JACQUELINE GAGNON
Respondent
A-66-02
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
JOHANNE CAUCHON
Respondent
A-69-02
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
JACQUELINE GAGNON
Respondent
REASONS FOR JUDGMENT
NOËL J.A.
[1] This is an application for judicial review of a decision (CUB 53070) dated November 13, 2001 by Judge Gobeil in his capacity as an Umpire, by which he upheld the decision of a Board of Referees that the sum received by the respondent at the end of his contract, in this instance his vacation pay, was to be allocated over the period in which the services had been rendered and not over the weeks following the separation from employment.
[2] Under an order of this Court dated May 14, 2002, a consolidation of proceedings in dockets A-65-02, A-66-02, A-67-02 and A-69-02 was granted, the case of Gilles Boivin (the respondent) being designated as the principal case. Pursuant to this order, a copy of these reasons will be placed in each of the related dockets to serve as reasons therefor.
Facts
[3] During the fall of 1999 and the winter of 2000, the respondent was a part-time teacher at the Collège de Limoilou (the employer) under a term contract.
[4] At the end of the contract, on May 17, 2000, the respondent received $1,102.79 as "vacation pay" according to the entry appearing on his record of employment. The employer subsequently confirmed that this sum corresponded to 1/5 of the salary paid to the respondent under his most recent contract, which ran from March 20 to May 17, 2000 (Applicant's Record, exhibit 8, page 30).
[5] The Commission determined that this sum constituted earnings under the Employment Insurance Act (the Act) and allocated it according to subsection 36(9) of the Employment Insurance Regulations (the Regulations) over the weeks of May 14 and May 21, 2000, beginning with the week of separation.
[6] The applicant's appeal of this decision was allowed on March 14, 2000. The Board of Referees held that the sum received by the applicant constituted a salary on the contract that should have been allocated to the period in which the services had been performed, under subsection 36(4) of the Regulations.
[7] This decision was upheld by the Umpire on November 13, 2001.
Relevant legislation
[8] Employment Insurance Regulations:
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36 (4) Earnings that are payable to a claimant under a contract of employment for the performance of services shall be allocated to the period in which the services were performed.
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36 (4) La rémunération payable au prestataire aux termes d'un contrat de travail en échange des services rendus est répartie sur la période pendant laquelle ces services ont été fournis.
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(8) Where vacation pay is paid or payable to a claimant for a reason other than a lay-off or separation from an employment, it shall be allocated as follows:
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(8) Sauf si elle est payée ou payable par suite de son licenciement ou de la cessation de son emploi, la paie de vacances payée ou payable au prestataire est répartie de la façon suivante :
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(a) where the vacation pay is paid or payable for a specific vacation period or periods, it shall be allocated
(i) to a number of weeks that begins with the first week and ends not later than the last week of the vacation period or periods, and
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a) si elle se rapporte à une ou plusieurs périodes de vacances précises, elle est répartie :
(i) sur un nombre de semaines qui commence par la première semaine de ces périodes et se termine au plus tard par la dernière semaine de celles-ci,
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(ii) in such a manner that the total earnings of the claimant from that employment are, in each consecutive week, equal to the claimant's normal weekly earnings from that employment; and
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(ii) de sorte que la rémunération totale tirée par lui de cet emploi dans chaque semaine consécutive soit égale à sa rémunération hebdomadaire normale provenant de cet emploi;
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(b) in any other case, the vacation pay shall, when paid, be allocated
(i) to a number of weeks that begins with the first week for which it is payable, and
(ii) in such a manner that, for each week except the last, the amount allocated under this subsection is equal to the claimant's normal weekly earnings from that employment.
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b) autrement elle est répartie, lorsqu'elle est payée :
(i) sur un nombre de semaines qui commence par la première semaine pour laquelle elle est payable,
(ii) de sorte que le montant attribué en vertu du présent paragraphe à chacune de ces semaines, sauf la dernière, soit égal à la rémunération hebdomadaire normale du prestataire provenant de cet emploi.
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(9) Subject to subsections (10) and (11), all earnings paid or payable to a claimant by reason of a lay-off or separation from an employment shall, regardless of the nature of the earnings or the period in respect of which the earnings are purported to be paid or payable, be allocated to a number of weeks that begins with the week of the lay-off or separation in such a manner that the total earnings of the claimant from that employment are, in each consecutive week except the last, equal to the claimant's normal weekly earnings from that employment.
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(9) Sous réserve des paragraphes (10) et (11), toute rémunération payée ou payable au prestataire en raison de son licenciement ou de la cessation de son emploi est, abstraction faite de la nature de la rémunération et de la période pour laquelle elle est présentée comme étant payée ou payable, répartie sur un nombre de semaines qui commence par la semaine du licenciement ou de la cessation d'emploi, de sorte que la rémunération totale tirée par lui de cet emploi dans chaque semaine consécutive, sauf la dernière, soit égale à sa rémunération hebdomadaire normale provenant de cet emploi.
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(Emphasis added)
Relevant provisions of the collective agreement
[9] 8-2.01
[translation]
A regular teacher is entitled to a paid vacation period in accordance with the following terms and conditions:
(a) A full-time teacher is entitled to two (2) months of paid vacation provided he or she was available within the meaning of the collective agreement for ten (10) months;
(b) A part-time teacher is entitled, as paid vacation, to a portion of the two (2) months pro rata to his or her full-time equivalent calculated in accordance with clause 8-5.11;
(c) A full-time or part-time teacher who does not provide the availability prescribed in his or her contract is entitled as vacation pay to only a portion of the vacation defined in paragraphs (a) or (b), whichever is applicable, pro rata to the availability provided.
Clause 8-2.03
The salary of a full-time or part-time teacher and the hourly rate of an instructor include vacation pay.
Clause 8-2.04
Full-time or part-time teachers who cease to be employed by the College before the date provided for the end of their contract shall receive, as vacation pay, one-fifth (1/5th) of the total salary earned between the start date of the latest contract and the actual date of their departure.
Issue
[10] There is no dispute that under section 36 of the Regulations vacation pay earned by an employee for the performance of services rendered in the course of his employment but paid or payable by the employer only because or as a result of separation from employment shall be allocated as of the separation. The dispute is over the characterization of the amount paid to the respondent and the time at which it became payable.
[11] More specifically, the applicant contends that the Umpire erred in finding, like the Board of Referees, that the sum received by the respondent constituted a salary on the contract payable simultaneous with the salary rather than vacation pay payable and paid upon separation from employment. It follows, the applicant says, that this sum should have been allocated from the date of separation under subsection 36(9) of the Regulations instead of in the period worked pursuant to subsection 36(4) of the Regulations.
Decision of the Umpire
[12] The Umpire, like the Board of Referees, had to distinguish Guy Gauthier v. Canada Employment and Immigration Commission, [1994] F.C.J. No. 279 from the present case in order to conclude that the amount received by the respondent constituted a salary on the contract payable in conjunction with the services performed and in any event other than because or as a result of the separation from his employment. In fact, in the Gauthier case, Mr. Justice Pratte, ruling on a collective agreement with language identical to the language at issue here, wrote on behalf of the Federal Court of Appeal:
Counsel for the applicant deduces from that clause [8-2.03], first, that the employer undertook to pay its teachers' vacation pay at the same time as their salary and as part of that salary and, second, ....
We need only read clause 8-2.04 of the collective agreement to see that this argument is without merit. That clause provides that a full-time or part-time teacher who ceases to be employed with the College before the date provided for the end of his or her contract shall receive one-fifth of the total salary paid by the College [translation] "as vacation pay". It necessarily follows that, contrary to what was argued by the applicant, the collective agreement did not contemplate that the vacation pay would be paid at the same time as the salary and as part thereof.
[13] The Umpire bypassed the Gauthier case by relying on the following passage excerpted from the decision by Umpire Roberge in the Hélène Pelletier case (CUB 47970):
[translation]
It is true that clause 8-2.04 states what Judge Pratte quoted, but that is not what is written in clause 8-2.03. In the Gauthier case, the claimant's contract had not expired. In the case at bar, the claimant's contract had expired. Since the vacation pay is included in the salary, there is nothing to add. It is our view that the Gauthier case does not apply in this case. [Judge Roberge had made similar remarks in the Hélène Morin case (CUB 47969).]
[14] The Umpire also assigned special weight to the following question and answer emanating respectively from the Commission and the employer:
Question: "At what point is vacation pay paid when teachers cease to be employed by the College at the date provided for in their contract?"
Answer: "When teachers are hired, the College must establish the total amount to be paid to them depending on their % of the workload, taking into account their level of education and experience. This overall amount includes vacation pay (clause 8-2.03).
Once the overall amount of the pay has been determined, along with payment dates, the College pays about 80% (4/5) of this amount during the contract period and the rest (about 20% or 1/5) at the end of the contract."
[15] The Umpire understood from this answer that the employer had "itself" acknowledged that the sum given to the teacher at the end of his contract was a salary on the contract, and not vacation pay. This is clear, he says, since the reply does not refer to any "vacation pay" (reasons, page 3, 1st paragraph).
[16] The judge went on to say that a regular teacher whose contract is finished cannot receive vacation pay since clause 8-2.03 clearly states that this type of earnings is already included in his salary (reasons, page 3, 3rd and 4th paragraphs), thereby concurring with the reasoning of Umpire Roberge in the Pelletier case.
Analysis
[17] In regard to the conclusion drawn by the Umpire from the employer's reply, I must say that his reasoning completely escapes me. The question that was asked by the Commission had to do with the time at which the "vacation pay" was to be paid. The first paragraph of the reply refers to the calculation of the overall compensation, and the second specifies that the amount is equal to about 20% or 1/5 of the overall compensation and was given to the teacher "at the end of the contract". With respect, nothing hangs on the fact that the employer did not repeat the words "vacation pay" in its reply.
[18] Having said this, the respondent's submission in this case is exactly the same as the one to which Mr. Justice Pratte replied in the Gauthier case. It is true, as the Umpire commented, that Mr. Gauthier's contract had ended prematurely, but this distinction does not at all affect Mr. Justice Pratte's reasoning.
[19] Indeed, Pratte J.A. had to determine whether the vacation pay, the terms of which are described in clauses 8-2.03 and 8-2.04 of the collective agreement, was payable at the same time as the salary or at the time of separation from employment. Pratte J.A., referring to clause 8-2.04, concluded:
It necessarily follows that... the collective agreement did not contemplate that the vacation pay would be paid at the same time as the salary and as part thereof. [Emphasis added]
[20] This is how it must be read since, if the teacher whose contract ends before its expiration was entitled to the payment of vacation pay simultaneously with his salary, clause 8-2.04 would be pointless. Clearly, this clause, which applies irrespective of the teacher's contractual status, presupposes that the teacher is not entitled to the payment of vacation pay at the same time as salary and serves to specify how the amount that becomes payable as such will be calculated when the contract of employment is prematurely terminated.
[21] Finally, it is worth noting that this reading of the collective agreement is consistent with the one made by the parties to the agreement. The record indicates that the employer always considered vacation pay as being payable upon the separation from employment and the record does not report any grievance in regard to this issue.
[22] I would therefore allow the application for judicial review, set aside the decision of the Umpire and refer the matter back to the Chief Umpire or to an Umpire designated by him for redetermination on the basis that the appeal by the Commission against the decision of the Board of Referees must be allowed and the decision of the Board of Referees vacated. I would award costs in favour of the applicant in the main case only.
"Marc Noël"
J.A.
"I concur with these reasons
Alice Desjardins J.A."
"I concur with these reasons
Marc Nadon J.A."
Certified true translation
Suzanne Gauthier, C. Tr., LL.L
FEDERAL COURT OF CANADA
APPEAL DIVISION
SOLICITORS OF RECORD
DOCKET: A-67-02, A-65-02, A-66-02, A-69-02
STYLE: THE ATTORNEY GENERAL OF CANADA v.
GILLES BOIVIN
PLACE OF HEARING: MONTRÉAL
DATE OF HEARING: February 26, 2003
REASONS FOR JUDGMENT: Noël J.A.
CONCURRING: Desjardins J.A.
Nadon J.A.
DATE OF REASONS: March 11, 2003
APPEARANCES:
Carole Bureau FOR THE APPLICANT
Isabelle Lacas FOR THE RESPONDENT
SOLICITORS OF RECORD:
Morris Rosenberg FOR THE APPLICANT
Deputy Attorney General of Canada
SAUVÉ ET ROY FOR THE RESPONDENT
Montréal, Quebec
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