[2] The facts are relatively straightforward. The applicant, a Treaty Indian, was an executive secretary for an off-reserve school district. She did not work during the summer months and claimed employment insurance. At the time she was collecting benefits, she was in receipt of $500 per month for serving as an Indian band councillor.

ISSUE

[3] The issue is whether the $500 per month she received for being an Indian band councillor had to be taken into account as earnings pursuant to former section 15 of the Employment Insurance Regulations, SOR/96-332 [the Regulations] for the purposes of reducing her employment insurance entitlement under subparagraph 19(3)(a)(i) of the Act.

[4] The applicant claims that the $500 per month was an honorarium and did not have to be deducted from her benefits. The Board of Referees agreed and allowed her appeal. The Umpire allowed the Commission's appeal from the Board of Referees and found that the honorarium received by the applicant was remuneration from employment that did have to be deducted.

[5] The applicant says the Umpire's decision should be reversed and the Board of Referees' decision restored. I am unable to agree with the applicant. I will deal briefly with each of the applicant's arguments.

ANALYSIS

Did the amounts received have to be deducted?

[6] The applicant says that the Board of Referees found that the amounts she received as a band councillor were an honorarium rather than a salary. She submits that this factual finding should not have been disturbed by the Umpire.

[7] However, the reasons of the Board of Referees are conclusory only; that is, the Board's reasons do not demonstrate how it came to its conclusion. In these circumstances, it was necessary for the Umpire to first address the legal considerations as to whether a payment is earnings from employment as the term "employment" is defined in subsection 35(1) of the Regulations. It was then open to her to determine, based on the evidence in the case, whether the honorarium received was earnings from employment.

[8] The learned Umpire first addressed the question of whether the applicant's role as band councillor constituted employment. Paragraph (c) of the definition of "employment" in subsection 35(1) of the Regulations provides:

"employment" means

...

« _emploi_ »

...

c) l'occupation d'une fonction ou charge au sens du paragraphe 2(1) du Régime de pensions du Canada.

Subsection 2(1) of the Canada Pension Plan, R.S.C. 1985, c. C-8, defines an "office" and an "officer" as:

"office" means the position of an individual entitling him to a fixed or ascertainable stipend or remuneration and includes a judicial office, the office of a minister of the Crown, the office of a lieutenant governor, the office of a member of the Senate or House of Commons, a member of a legislative assembly or a member of a legislative or executive council and any other office the incumbent of which is elected by popular vote or is elected or appointed in a representative capacity, and also includes the position of a corporation director, and "officer" means a person holding such an office;

« fonction » ou « charge » Le poste qu'occupe un particulier, lui donnant droit à un traitement ou à une rémunération déterminée ou constatable. Sont visés par la présente définition une charge judiciaire, la charge de ministre, de lieutenant-gouverneur, de membre du Sénat ou de la Chambre des communes, de membre d'une assemblée législative ou d'un conseil législatif ou exécutif et toute autre charge dont le titulaire est élu par vote populaire ou est élu ou nommé à titre de représentant, y compris le poste d'administrateur de personne morale;

« fonctionnaire » s'entend d'une personne détenant une telle fonction ou charge.

[9] The Umpire found that the applicant, as a band councillor, fell within the definition in subsection 2(1) of the Canada Pension Plan because she was elected by popular vote.

[10] The applicant takes issue with that finding because she says subsection 2(1) does not apply to Indian band councillors. However, the Board of Referees and the Umpire found she was elected. That is sufficient to bring her within subsection 2(1) of the Canada Pension Plan.

[11] However, the applicant submits that her position as band councillor did not "entitle" her to the $500 per month she received. Rather, she says, it was a voluntary payment by the Band.

[12] The applicant concedes that the evidence before the Board of Referees was that the Chief and Council decided they would pay themselves $500 per month. The documentary evidence is that the $500 was paid for each month from February 1999 to October 2001. The Umpire concluded that the word "entitling" in subsection 2(1) only requires that there be an expectation that the payments will be made and received. The Umpire concluded that regardless of what they may be called, given the consistency of the amounts and the regularity of their payment, the honorarium was expected to be paid by the Band and received by the councillors. Therefore, the honorarium amounted to a fixed or ascertainable remuneration to which the councillors were entitled by reason of their office. It was open to the Umpire to arrive at that conclusion on the evidence and find that the $500 was remuneration from employment and therefore had to be taken into account under section 15 of the Regulations in determining the amount to be deducted under paragraph 19(3)(c)(i).

Is taking the honorarium into account contrary to subsection 89(1) of the Indian Act?

[13] The applicant argues that subsection 89(1) and paragraph 90(1)(a) of the Indian Act, R.S.C. 1985, c. I-5, preclude the deduction of the amounts she received as a band councillor from her employment insurance benefits. Subsection 89(1) and paragraph 90(1)(a) provide:

89. (1) Subject to this Act, the real and personal property of an Indian or a band situated on a reserve is not subject to charge, pledge, mortgage, attachment, levy, seizure, distress or execution in favour or at the instance of any person other than an Indian or a band.

89. (1) Sous réserve des autres dispositions de la présente loi, les biens d'un Indien ou d'une bande situés sur une réserve ne peuvent pas faire l'objet d'un privilège, d'un nantissement, d'une hypothèque, d'une opposition, d'une réquisition, d'une saisie ou d'une exécution en faveur ou à la demande d'une personne autre qu'un Indien ou une bande.

90. (1) For the purposes of sections 87 and 89, personal property that was

(a) purchased by Her Majesty with Indian moneys or moneys appropriated by Parliament for the use and benefit of Indians or bands,

shall be deemed always to be situated on a reserve.

90. (1) Pour l'application des articles 87 et 89, les biens meubles qui ont été_:

a) soit achetés par Sa Majesté avec l'argent des Indiens ou des fonds votés par le Parlement à l'usage et au profit d'Indiens ou de bandes;

sont toujours réputés situés sur une réserve.

[14] The applicant says that applying the well known connecting factors test (see Williams v. Canada, [1992] 1 S.C.R. 877) or, alternatively, paragraph 90(1)(a), the amounts she received are situated on a reserve. I do not think paragraph 90(1)(a) applies but I will accept, without deciding, that under the connecting factors test, the amounts she received are situated on the Reserve.

[15] The applicant submits that if her honorarium must be taken into account as earnings from employment, the net result is that she will receive less employment insurance than the amount to which she would otherwise be entitled. She therefore says that the resulting deduction from her benefits is tantamount to a levy or charge contrary to subsection 89(1).

[16] Read in their context, the words in subsection 89(1) protect the property of an Indian situated on a reserve from being taken away. By contrast, the deduction of earnings under the Act has the effect of reducing benefits payable under an insurance scheme. It is the benefits that are being reduced, not the payments from the Band that are being taken away. In Williams, Gonthier J. accepted La Forest J.'s finding in Mitchell v. Peguis Indian Band, [1990] 2 S.C.R. 85, that the purpose of subsection 89(1) was the protection of the property of an Indian on a reserve so that it is not eroded by the ability of creditors to seize. At page 885, he stated:

The question of the purpose of ss. 87, 89 and 90 has been thoroughly addressed by La Forest J. in the case of Mitchell v. Peguis Indian Band, [1990] 2 S.C.R. 85. La Forest J. expressed the view that the purpose of these sections was to preserve the entitlement of Indians to their reserve lands and to ensure that the use of their property on their reserve lands was not eroded by the ability of governments to tax, or creditors to seize.

Subsection 89(1) applies to prevent direct attack on the property of an Indian situated on a reserve. It cannot be read to prevent the scaling back, having regard to the amount or value of property situated on a reserve, of government benefits payable to an Indian.

Other arguments

[17] The applicant suggested that reducing employment insurance benefits by earnings arising from non-insurable employment is not envisaged by the Employment Insurance Act. On the contrary, even if the office of band councillor is non-insurable employment, subsection 35(1) of the Regulations defines employment as including any employment, whether insurable or not, including self-employment. It provides:

"employment" means

(a) any employment, whether insurable, not insurable or excluded employment, ...

(b) any self-employment, ...

« _emploi_ »

a) Tout emploi, assurable, non assurable ou exclu, ...

b) tout emploi à titre de travailleur indépendant, ...

Whether earnings are insurable is therefore not a consideration in whether they are to be taken into account in order to reduce employment insurance benefits otherwise payable.

[18] The applicant also argued that employment insurance is not social assistance, and that she paid premiums and deserves to obtain benefits. While that is true, insurance plans are usually subject to deductibles and exclusions. The payment of a premium does not give an insured person the unqualified right to receive maximum benefits. Here, the deduction of other earnings is a term of the employment insurance program applicable to all employees and will reduce benefits otherwise payable.

CONCLUSION

[19] The application should be dismissed with costs.

"Marshall Rothstein"

J.A.

"I agree

B.L. Strayer J.A."

"I agree

K. Sharlow"

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-274-03

STYLE OF CAUSE: Barbara Doblej v. Canada Employment Insurance Commission

PLACE OF HEARING: Winnipeg, Manitoba

DATE OF HEARING: January 15, 2004

REASONS FOR JUDGMENT BY: ROTHSTEIN J.A.

CONCURRED IN BY: STRAYER J.A.

SHARLOW J.A.

DATED: January 21, 2004

APPEARANCES:

Mr. Harley I. Schachter

FOR THE APPLICANT

Ms. Julie Rogers-Glabush

FOR THE RESPONDENT

SOLICITORS OF RECORD:

Duboff Edwards Haight and Schachter

Winnipeg, Manitoba

FOR THE APPLICANT

Morris Rosenberg

Deputy Attorney General of Canada

FOR THE RESPONDENT

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Doblej v. Canada (Canadian Employment Insurance Commission), 2004 FCA 19

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2004 FCA 19