Cassels v. Canada (Attorney general), 2002 FCA 413

                                                                                                                                            Date: 20021028

                                                                                                                                        Docket: A-659-01

                                                                                                                Neutral citation: 2002 FCA 413

CORAM:        ISAAC J.A.

SHARLOW J.A.

MALONE J.A.

BETWEEN:

                                                                                                                   

                                            THE ATTORNEY GENERAL OF CANADA

                                                                                                                                                         Applicant

                                                                              - and -

                             OLGA BARNES, MICHELLE MURPHY, PAULA HAWCO,

                                DEBBIE GUEST, PAULA FURLONG, JEAN PIERCEY,

                                       LORRAINE TOBIN AND DAVID SAUNDERS

                                                                                                                                                    Respondents

                                            Heard at Ottawa, Ontario, on October 16, 2002.

                                  Judgment delivered at Ottawa, Ontario, on October 28, 2002

REASONS FOR JUDGMENT BY:                                                                                    MALONE J.A.

CONCURRED IN BY:                                                                                                              ISAAC J.A.

                                                                                                                                            SHARLOW J.A.

Date: 20021028

Docket: A-659-01

Neutral citation: 2002 FCA 413

CORAM:        ISAAC J.A.

SHARLOW J.A.

MALONE J.A.

BETWEEN:

                                                                                   

                                            THE ATTORNEY GENERAL OF CANADA

                                                                                                                                                         Applicant

                                                                              - and -

                             OLGA BARNES, MICHELLE MURPHY, PAULA HAWCO,

                                DEBBIE GUEST, PAULA FURLONG, JEAN PIERCEY,

                                       LORRAINE TOBIN AND DAVID SAUNDERS

                                                                                                                                                    Respondents

                                                        REASONS FOR JUDGMENT

                                                                                   

MALONE J.A.

I. INTRODUCTION

[1]                 This is an application for judicial review of a decision of Umpire D.H. Riche, dated July 27, 2001 and reported as CUB 50072. The Umpire allowed an appeal by Olga Barnes, for herself and seven other individuals, brought pursuant to subsection 115(1) of the Employment Insurance Act, R.S.C. 1996, c. 23 (the "Act"). He determined that a lump-sum payment of retroactive pay which the respondent had received from her employer, Revenue Canada Taxation, should be allocated to the pay period pre-dating the date on which the claimant established her claim, and not to a subsequent one week call-back for the same employer.

[2]                 At the commencement of the hearing before us, counsel for the applicant asked that the style of cause be amended by adding the names of the following persons as respondents: Michelle Murphy, Paula Hawco, Debbie Guest, Paula Furlong, Jean Piercey, Lorraine Tobin and David Saunders. Counsel for the respondent Barnes consented to the request, saying that he had been authorized to represent all eight respondents. The Court therefore granted the request and directed that the originating documents be amended accordingly.

II. ISSUE AND STANDARD OF REVIEW

[3]                 The principal issue raised in the application is the meaning of the phrase "shall be allocated proportionately over the last pay period for which regular salary, wages, and commissions are paid" as used in subsection 23(1.1) of the Employment Insurance Regulations, SOR/96 -332, as amended (the "Regulations"). This is a question of law since it concerns the meaning of the words used in legislation. As such, the Umpire's decision on this issue is to be reviewed on a standard of correctness (See: Attorney General of Canada v. Sveinson, 2001 FCA 315).

[4]                 The application of the meaning to the facts of the case is a question of mixed fact and law, and is to be reviewed on a standard of reasonableness (See: Canada (Attorney General) v. Frank Stillo [2002] FCA 346).

III. FACTS

[5]                 Ms. Barnes' appeal was brought before the Umpire as a representative appeal on behalf of herself and the other respondents. Although the facts that follow are based on Ms. Barnes' claim, the facts respecting each of the other claimants in this appeal are substantially the same.

[6]                 Ms. Barnes was employed as a processing clerk by Revenue Canada Taxation during the period from July 27, 1998 to December 18, 1998. In December of 1998 the respondents were laid off along with approximately 52 other employees. They then established claims for employment insurance benefits effective December 20, 1998 and Ms. Barnes was eligible for benefits for a period of 29 weeks.

[7]                 During the first week of January 1999 all of the laid-off employees (60 in total) were contacted by Revenue Canada Taxation as to their availability to work from January 7 to 13, 1999. Of those, only the respondents returned for this short period.

[8]                 In April 1999 all of the laid-off employees received a retroactive payment in the amount of $3,394.42 in respect of an increase in salary arising under a collective agreement under which the respondents were the beneficiaries. In October 1999 each respondent submitted a second record of employment for their work in January which also showed the retroactive payment.

[9]                 On two separate occasions the respondents contacted the Canada Employment Insurance Commission (the "Commission") and asked that the retroactive pay be allocated to their last pay period. In the view of the respondents, the allocation of the lump-sum payment to the December period would have entitled them to a higher weekly benefit rate. They claimed that because the retroactive payment related to their employment during 1998 it should be included in their earnings for the period up to December 1998.

[10]            The Commission took the position that the allocating of the retroactive increase to the pay period of employment ending December 18, 1998 would be contrary to subsection 23(1.1) of the Regulations, which requires retroactive pay increases to be allocated to the last pay period for which "regular salary, wages or commissions are paid". The Commission identified the week of January 7 to 13, 1999 as the last pay period.

[11]            The respondents appealed the Commission's decision to a Board of Referees (the "Board"). The Board upheld the decision of the Commission, having concluded that the Commission had correctly interpreted and applied subsection 23(1.1) of the Regulations. The respondents then appealed that decision. That appeal was heard by Umpire Riche, who allowed their appeal on the basis that the retroactive payment should be allocated to the period of employment ending December 18, 1998. In his view that was the last period for which regular salary, wages or commissions had been paid.

IV. RELEVANT STATUTORY PROVISIONS

[12]            The relevant provisions of the Act are as follows:

14. (1) The rate of weekly benefits payable to a claimant is 55% of their weekly insurable earnings.

14. (1) Le taux de prestations hebdomadaires qui peut être versé à un prestataire est de cinquante-cinq pour cent de sa rémunération hebdomadaire assurable.

  

115. (1) An appeal as of right to an umpire from a decision of a board of referees may be brought by (a) the Commission; (b) a claimant or other person who is the subject of a decision of the Commission; (c) the employer of the claimant; or (d) an association of which the claimant or employer is a member. 115(2) (2) The only grounds of appeal are that (a) the board of referees failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction; (b) the board of referees erred in law in making its decision or order, whether or not the error appears on the face of the record; or (c) the board of referees based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.

115. (1) Toute décision d'un conseil arbitral peut, de plein droit, être portée en appel devant un juge-arbitre par la Commission, le prestataire, son employeur, l'association don't le prestataire ou l'employeur est membre et les autres personnes qui font l'objet de la décision. 115(2) (2) Les seuls moyens d'appel sont les suivants_: a) le conseil arbitral n'a pas observé un principe de justice naturelle ou a autrement excédé ou refusé d'exercer sa compétence; b) le conseil arbitral a rendu une décision ou une ordonnance entachée d'une erreur de droit, que l'erreur ressorte ou non à la lecture du dossier; c) le conseil arbitral a fondé sa décision ou son ordonnance sur une conclusion de fait erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des éléments portés à sa connaissance.

The relevant regulatory provisions are set out below.

23.(1) For the purposes of section 14 of the Act, insurable earnings shall be allocated in the following manner: (a) remuneration, including statutory holiday pay, other than the remuneration referred to in paragraph (b), paid in respect of a pay period or that remains unpaid for the reason described in subsection 2(2) of the Insurable Earnings and Collection of Premiums Regulations shall be allocated to that pay period; and (b) overtime pay, shift premiums, pay adjustments, retroactive pay increases, bonuses, gratuities, accumulated sick leave credits, incentive payments, cost of living allowances, separation payments, wages in lieu of notice and any other remuneration including vacation pay not paid in respect of a pay period or that remains unpaid for the reasons described in subsection 2(2) of the Insurable Earnings and Collection of Premiums Regulations, shall be allocated proportionately over the pay period in which they are paid. 23(1.1) Where an insured person is on unpaid leave or has quit their employment or been terminated or laid off, the remuneration referred to in paragraph (1)(b) shall be allocated proportionately over the last pay period for which regular salary, wages or commissions are paid. [emphasis added]

23. (1) Pour l'application de l'article 14 de la Loi, la rémunération assurable est répartie de la façon suivante: (a) la rétribution, y compris la paie des jours fériés, autre que la rétribution visée à l'alinéa b), qui est versée pour une période de paie ou qui n'est pas versée pour les raisons visées au paragraphe 2(2) du Règlement sur la rémunération assurable et la perception des cotisations, est attribuée à cette période de paie; (b) la paie d'heures supplémentaires, les primes de quart de travail, les rajustements de salaire, les augmentations de salaire rétroactives, les primes, les gratifications, les crédits de congés de maladie non utilisés, les primes de rendement, l'indemnité de vie chère, l'indemnité de fin d'emploi, l'indemnité de pré-avis et toute autre rétribution, y compris la paie de vacances qui n'est pas versée à l'égard d'une période de paie ou qui n'est pas versée pour les raisons visées au paragraphe 2(2) du Règlement sur la rémunération assurable et la perception des cotisations, sont répartis proportionnellement sur la période de paie au cours de laquelle ils sont versés. 23 (1.1) Lorsque l'assuré est en congé sans solde, a quitté volontairement son emploi ou est licencié, ou dans le cas de la cessation de son emploi, la rétribution mentionnée à l'alinéa (1)(b) est répartie proportionnellement sur la dernière période de paie pour laquelle un salaire, un traitement ou des commissions ont été versés sur une base régulière. [je souligne]

V. ANALYSIS

[13]                   Counsel for the applicant contended that the facts in this case "are essentially indistinguishable from those in Sveinson" (memorandum, paragraph 16). On this basis she argued that the disposition in this case should be governed by Sveinson and the companion case of the Attorney General of Canada v. Darren Heidman (19 October 2001, Ottawa, A-488-00, FCA). In Sveinson, this Court quashed the decision of an Umpire who allocated a lump-sum payment for retroactive pay to the period in respect of which it was paid. His decision, the Court said, was an error of law.

[14]                   I do not agree with the applicant's contention. In Sveinson, the claimant was employed on a term basis at the Revenue Canada Tax Centre in Winnipeg from April to October 1999. As a result of a new collective agreement, she received a retroactive pay increase in April 1999, part of which was paid in respect of the period of her employment at the Tax Centre relevant for calculating her benefits. In Sveinson and Heidman the issue to be determined was whether retroactive pay was to be allocated in accordance with paragraph 23(1)(a) (the pay period in respect of which it was paid) or paragraph 23(1)(b) of the Regulations (the pay period in which it was paid). The Court determined (at paras. 18 to 24,) that the retroactive pay in issue came within paragraph 23(1)(b) and therefore ought to be allocated to the pay period in which it was paid. Subsection 23(1.1) of the Regulations was not in issue in either Sveinson or Heidman.

[15]                   In this case the respondents were not employed when they received their retroactive pay increase, and therefore their case falls under subsection 23(1.1) which reads:

23(1.1) Where an insured person is on unpaid leave or has quit their employment or been terminated or laid off, the remuneration referred to in paragraph (1)(b) shall be allocated proportionately over the last pay period for which regular salary, wages or commissions are paid. [Emphasis added]

23 (1.1) Lorsque l'assuré est en congé sans solde, a quitté volontairement son emploi ou est licencié, ou dans le cas de la cessation de son emploi, la rétribution mentionnée à l'alinéa (1)(b) est répartie proportionnellement sur la dernière période de paie pour laquelle un salaire, un traitement ou des commissions ont été versés sur une base régulière. [je souligne]

[16]                   This subsection, as opposed to subsection 23(1), applies to claimants like the respondents who received a payment of the type enumerated in subsection 23(1)(b) while unemployed. In this case, the respondents received their retroactive pay in April 1999, a time which did not correspond with any pay period. Nevertheless, some temporal allocation is required for the purposes of the Act. The choice made by the Governor in Council is set out in subsection 23(1.1) which I have already reproduced.

[17]                   The phrase "regular salary, wages or commissions" is not defined in the Regulations. Therefore, it must be interpreted in accordance with established principles of statutory construction, starting with the plain-meaning rule applied recently by the Supreme Court of Canada in Bell Express Vu Limited Partnership v. 2002 SCC 42">Rex, 2002 SCC 42, at para. 26:

In Elmer Driedger's definitive formulation, found at p. 87 of his Construction of Statutes (2^nd ed. 1983):

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

[18]                   Counsel for the applicant contended that the phrase should be interpreted as meaning "base pay as opposed to more extraordinary forms of remuneration" such as bonuses, vacation pay, gratuities and the like which are mentioned in subsection 23(1)(b).

[19]                   For his part, counsel for the respondents urged us to consider common definitions of "regular" such as recurring, attending or functioning at fixed times or intervals.    In my respectful view, the word "regular", when used to modify the phrase "salary, wages or commissions," indicates clearly those payments that are normally or routinely paid to an employee on a continuous basis. For example, payments received by an employee for work done on a full- or part-time basis.

[20]                   By virtue of section 13 of the Official Languages Act, the French and English versions of a statute are equally authoritative. That provision reads as follows:

13. Any journal, record, Act of Parliament, instrument, document, rule, order, regulation, treaty, convention, agreement, notice, advertisement or other matter referred to in this Part that is made, enacted, printed, published or tabled in both official languages shall be made, enacted, printed, published or tabled simultaneously in both languages, and both language versions are equally authoritative.

13. Tous les textes qui sont établis, imprimés, publiés ou déposés sous le régime de la présente partie dans les deux langues officielles le sont simultanément, les deux versions ayant également force de loi ou même valeur.

Accordingly, this notion of continuity or recurrence is reinforced by the French version of subsection 23(1.1), which refers to the pay period for which salary "ont été versés sur une base régulière", the pay period for which salary has been paid on a regular basis. Since both versions of the Regulations are equally authoritative, and the French version is clear, I am of the view that the French version should govern the construction of section 23(1.1).

[21]                   The Supreme Court of Canada has interpreted the word "regularly" when used in the context of whether an employee is regularly engaged in some other occupation under the former Unemployment Insurance Act. In that case, the Court accepted the Umpire's conclusion that "regularly" was to be used with the connotation of "continuity." The Court further held that "regularly" can be contrasted with "casual" and "intermittent." As an example, the Court distinguished regular employment from a job which is "just a day or two here and there with no firm commitment by either the claimant or the new employer." (See Abrahams v.Canada (Attorney General)), [1983] 1 S.C.R. 2">[1983] 1 S.C.R. 2, at 8-9.)

[22]                   Here, the evidence is that the employees affected were called back to work because additional short-term work was available. This was a one-time event during January 1999. Moreover, it was for a limited purpose, did not result in permanent employment, and could not be construed as recurring. It was casual and intermittent. In addition, the respondents were not laid off from this employment in January of 1999 as there had been no firm commitment by either party for continuous employment.

[23]                   In this case, the Umpire concluded that the money earned in January was not regular salary or wages because the five day call-back period was not a renewal of the respondents' employment or an extension of the previous term of employment, but a very temporary assignment. The Umpire's interpretation of the words in subsection 23(1.1) is correct. It follows, that the payments made in respect of the January work was not regular salary or wages, and therefore, in my view, the Umpire's decision on the question of mixed law and fact was reasonable. I am in respectful agreement with his conclusion that the last regular pay period is that which ended on December 18, 1998, and not as the applicant contends, January 7 to 13, 1999.

[24]                   I would dismiss this application for judicial review with costs.

  

                                                                                               "B. Malone"                   

                                                                                                              J.A.                     

"I agree

Julius A. Isaac"

"I agree

K. Sharlow"

                          FEDERAL COURT OF APPEAL

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

    

DOCKET:                   A-659-01

STYLE OF CAUSE: THE ATTORNEY GENERAL OF CANADA v.

OLGA BARNES, MICHELLE MURPHY, PAULA          HAWCO, DEBBIE GUEST, PAULA FURLONG,            JEAN PIERCEY, LORRAINE TOBIN AND DAVID                 SAUNDERS

                                                         

  

PLACE OF HEARING:                                   OTTAWA

  

DATE OF HEARING:                                     OCTOBER 16, 2002

REASONS FOR:      MALONE J.A.

  

CONCURRED IN BY:                                    ISAAC J.A.

SHARLOW J.A.

  

DATED:                      OCTOBER 28, 2002

APPEARANCES:

Ms. Lori Rasmussen     FOR THE APPLICANT

(902) 426-4472

Mr. David Yazbeck     FOR THE RESPONDENT

(613) 567-2901

  

SOLICITORS OF RECORD:

Morris Rosenberg, Deputy Attorney General of Canada    FOR THE APPLICANT

Raven, Allen Cameron & Ballantyne                                    FOR THE RESPONDENT

Ottawa, Ontario