Dockets: A-36-13
A-37-13
Citation: 2014 FCA 177
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CORAM:
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PELLETIER J.A.
GAUTHIER J.A.
TRUDEL J.A.
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Docket:
A-36-13
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BETWEEN:
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THE ATTORNEY GENERAL OF CANADA
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Applicant
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and
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RAYMOND CLOUTIER
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Respondent
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Docket:
A-37-13
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AND BETWEEN:
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THE ATTORNEY GENERAL OF CANADA
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Applicant
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and
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SYLVAIN LEBLOND
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Respondent
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REASONS FOR JUDGMENT
PELLETIER J.A.
[1]
During the entire relevant period,
Mr. Cloutier and Mr. Leblond (the claimants) were employees of Olymel
L.P. (Olymel). On May 24, 2011, Olymel entered into a work-sharing
agreement with the Employment Insurance Commission (the Commission) and the
employees of Olymel, represented by their union. The purpose of this agreement
was to avoid having to lay off a certain number of Olymel employees as a result
of a reduction in the normal level of business activity for reasons beyond the
control of the employer. The work-sharing program prevents layoffs when there
is a temporary reduction in the amount of work and provides income support to
workers entitled to employment insurance benefits whose work weeks have been
temporarily reduced. This scheme is authorized by section 24 of the Employment
Insurance Act, S.C. 1996, c. 23 (the Act).
[2]
The issue raised in these applications for
judicial review is whether an employee continues to be entitled to work-sharing
benefits if, in the course of a week, he or she does not perform services as
planned in the work schedule as a result of taking paid leave under the
collective agreement.
[3]
The facts in dockets A-36-13 (The Attorney
General of Canada v. Raymond Cloutier) and A-37-13 (The Attorney General
of Canada v. Sylvain Leblond) are almost identical. The applications for
judicial review were heard at the same time. Consequently, only one set of
reasons is rendered, the original of which will be filed in
docket A-36-13, and a copy in docket A-37-13.
I.
FACTS AND PROCEEDINGS
[4]
Mr. Cloutier was to work two days during
the week of July 31, 2011, but he did not perform services on those two
days because of the death of a relative. He took the bereavement leave provided
for under section 21 of the collective agreement. Olymel paid him $269.12
for the two days’ bereavement leave.
[5]
Mr. Leblond experienced the same situation
during the same week: he had been supposed to work three days, and he took
bereavement leave on those three days. Olymel paid him $465.50 for the three
days.
[6]
The Commission informed Mr. Cloutier and Mr. Leblond
that they were not entitled to work-sharing benefits for the week of
July 31 because they had not worked for at least 30 minutes during
that week. According to the Commission, the week of July 31 was therefore
to be considered as a regular-benefits week, except that the claimants had to
serve their waiting period. They were therefore not entitled to regular or
work-sharing benefits during this week.
[7]
Each of the claimants appealed from the
Commission’s decision to the Board of Referees. Both of them argued that the
Commission’s representatives recognized during a union meeting that, except for
sections 9 (seniority) and 13 (regular work week), the provisions of the
collective agreement would remain in effect during the work-sharing period.
[8]
Furthermore, the claimants alleged that the
phrase “exerce un emploi en
travail partagé”, which appears in the Act, does
not have the meaning given to it by the Commission. They referred to all the
provisions of the Act where this phrase is used in support of their argument
that “exercer un emploi” does not mean “work” but rather
being employed by an employer.
[9]
In turn, the Commission submitted that, under
section 42 of the Employment Insurance Regulations, SOR/96-332 (the
Regulations), which requires claimants to be employed, they have to report to
work and to perform services. This requirement is not respected when a claimant
is away from his position, even if the claimant is remunerated by the employer
for this absence under the collective agreement.
[10]
The Board of Referees ruled in favour of the
claimants. The Board was of the opinion that the collective agreement applied
to work-sharing. When an employee takes leave provided for in the collective
agreement, the hours paid are considered to be insurable hours for the purposes
of the Act. The Board held that an employee was therefore entitled to
work-sharing benefits in the week during which the leave was taken. It is
implicit in this reasoning that an insurable hour is an hour during which the
employee is employed in work-sharing employment.
[11]
The Commission appealed from both these cases to
the Umpire. Once again, it submitted that the test for entitlement to
work-sharing benefits was the performance of services during the week in
question. The Commission based its argument on the wording of the Act and the
Regulations, as well as on the case law of this Court, including Canada (Attorney General) v. Landry, [1999] F.C.J. No. 1872 (QL).
[12]
The claimants pointed out that the purpose of
section 24 of the Act was to prevent, through a work-sharing scheme,
layoffs during a period where there is a temporary reduction in the employer’s
normal level of business. Consequently, the provisions of the Act are to be
interpreted in a manner that advances this purpose.
[13]
According to the claimants, a claimant who is
employed in work-sharing employment is deemed to have worked on the days the
claimant does not work under a work-sharing agreement. The claimants further submitted
that the same applies to statutory holidays and any special leave remunerated
under the collective agreement. The claimants could therefore be considered to
have been in employment during their paid bereavement leave.
[14]
The Umpire examined the case law cited by the
Commission in support of its argument and decided that it was not determinative.
The Landry decision was excluded because it pertained to the
cancellation of a work-sharing agreement and not the administration of such an
agreement.
[15]
In the Umpire’s opinion, section 42 of the
Regulations does not require claimants to work a minimum number of hours in
order to be entitled to employment insurance benefits. Section 42 simply
requires the employee to be employed in work-sharing employment. According to
the English version of section 42, the claimant must be “employed” in work-sharing employment, that is, the
claimant must have the status of an employee, which was the case during the
relevant period.
[16]
The Umpire was of the view that the claimants
were prevented from working because of a death in the family. He ruled that it
would be contrary to section 42 of the Regulations and the spirit of the
Act to punish claimants by disentitling them from receiving work-sharing
benefits under such circumstances. The Umpire believed the Board of Referees’
conclusion to be reasonable. He, therefore, dismissed the Commission’s appeal.
II.
ISSUES
[17]
The issues are as follows:
(1) What is
the standard of review for the Umpire’s decision?
(2) What is the meaning of the phrase “exerce un emploi en travail partagé” in subsection 24(3) of the Act and section 42 of the
Regulations?
III.
ANALYSIS
A.
What is the standard of review for the Umpire’s
decision?
[18]
According to the case law of this Court, in the
case of a question of law, the decision of a board of referees or an umpire is
reviewable on the standard of correctness: Chaulk v. Canada (Attorney
General), 2012 FCA 190, [2012] F.C.J. No. 831, at paragraphs 23-31. The
interpretation of a statutory provision is a question of law. It follows that
the applicable standard of review is correctness.
B.
What is the meaning of the phrase “exerce un emploi en travail partagé” in
subsection 24(3) of the Act and section 42 of the Regulations?
[19]
The Commission bases its application for
judicial review on the phrase “exerce
un emploi en travail partagé”, which appears in several
places in the Act and the Regulations. For the purposes of the present dispute,
it is sufficient to reproduce subsection 24(3) of the Act and section 42
of the Regulations.
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24.(3) For the
purposes of this Part, a claimant is unemployed and capable of and available
for work during a week when the claimant works in work-sharing employment.
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24.(3) Pour l’application
de la présente partie, un prestataire est réputé être en chômage, capable de
travailler et disponible à cette fin durant toute semaine où il exerce un
emploi en travail partagé.
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42. Work-sharing
benefits are payable to a claimant who is employed in work-sharing employment
for each week of unemployment that falls in a benefit period established for
the claimant, and subject to sections 43 to 49, the Act and any regulations
made under the Act apply to the claimant, with such modifications as the
circumstances require.
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42. Des
prestations pour travail partagé sont payables au prestataire qui exerce un
emploi en travail partagé pour chaque semaine de chômage comprise dans une
période de prestations établie à son profit et, sous réserve des articles 43
à 49, la Loi et ses règlements s’appliquent au prestataire, avec les
adaptations nécessaires.
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[20]
The Commission’s argument that a period of work
is required during a work-sharing week is based on the literal sense of the phrase
“exerce un emploi”. According to the Commission, subsection 24(3) of the Act and
section 42 of the Regulations reflect Parliament’s intention to
distinguish between being employed, under the terms of a work-sharing
agreement, and performing services in a given week. The Commission recognizes
that the English version of the Act uses the verb “works”
and the word “employed”, but submits that both
of these expressions must be read in harmony with the French expression “exerce un emploi”, which [translation] “implies more than a state of facts, but rather working
during a given week”: Applicant’s Record, p. 290,
paragraph 32.
[21]
The Commission also submits that the
interpretation according to which a person who “exerce un emploi à travail partagé”
simply refers to an employee in a work-sharing setting renders section 44
of the Regulations moot:
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44. A claimant is
not entitled to work-sharing benefits for any week for which the claimant claims
benefits under section 12 of the Act.
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44. Le
prestataire n’est pas admissible au bénéfice des prestations pour travail
partagé à l’égard de toute semaine pour laquelle il demande des prestations
visées à l’article 12 de la Loi.
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[22]
The benefits provided for in section 12 of
the Act are regular benefits. If the interpretation favoured by the claimants
is accepted, as soon as there is a work-sharing agreement, only work-sharing
benefits are payable, to the exclusion of regular benefits, which is contrary
to section 44. The Commission argues that this provision suggests that a
claimant under a work-sharing scheme may receive regular benefits.
[23]
The claimants submit that an analysis of the
wording based on the difference between the words “works”
and “employed” is not valid since these two
words are translated by a single phrase, “exerce un emploi”. According to the
claimants, [translation] “a literal interpretation of the French and English versions
that takes the context into account and that is consistent with the other statutory
provisions does not support the applicant’s arguments”: Respondent’s
Record, p. 59, paragraph 42.
[24]
The parties’ arguments, as I have just
summarized them, focus on the literal meaning of the words used by Parliament. The
thrust of the difference between their arguments is this: one says that the
words can only mean “to be employed” while the other says that they can only
mean “to perform services”. For the reasons
below, it is my view that the words are fundamentally ambiguous and their meaning
must be found by examining the context in which they are used. The starting
point for such an analysis is a comparison between regular benefits and
work-sharing benefits.
[25]
To be entitled to regular benefits, claimants
must be unemployed, that is, they must have ceased their employment with their
employer and not have worked for the employer for seven consecutive days. This criterion
is found in the definition of an interruption of earnings in section 14 of
the Regulations. The requirement to be unemployed arises from the purpose of
the Act, which is to support those who are temporarily unemployed. But there is
also a matter of Parliament’s legislative power in unemployment insurance. In Reference
re Employment Insurance Act (Can.), ss. 22 and 23, 2005 SCC 56, [2005] 2
S.C.R. 669 (the Reference), the Supreme Court held that an interruption of
employment is the factor that connects certain benefit schemes, such as
maternity leave, to Parliament’s legislative competence in employment
insurance, without which it would fall under the legislative jurisdiction of
the provinces over property and civil rights.
[26]
One of the characteristics of the work-sharing
scheme is that the relationship between the employer and the employer is not
severed; the employee continues to be employed by the employer while receiving
work-sharing benefits. In fact, one of the goals of this scheme is in fact to prevent
layoffs during a period of reduction in the employer’s normal level of business:
Applicant’s Record, at page 128.
[27]
Another criterion of entitlement to regular
benefits, found in subsection 18(1) of the Act, is that claimants must be
capable of and available for work, and unable to obtain suitable employment. This
criterion is understandable from the perspective of the claimant’s
unemployment: claimants must be ready to re-enter the labour force or risk not
being entitled to benefits.
[28]
Claimants employed in work-sharing employment do
not have to re-enter the labour force since they never left it. They must, of
course, be available for their employer, who can ask them to work extra days in
addition to those provided in their schedule. Claimants under a work-sharing
agreement are not required to accept an offer of employment from another
employer. They are allowed to accept work from another employer on those days
on which they are not working for their main employer, but are not required to
do so: see Applicant’s Record, at page 132.
[29]
The last criterion of eligibility for regular
benefits I wish to mention is an interruption of earnings. Under
section 14 of the Regulations, a claimant not only must have been
separated from his or her employer for seven consecutive days, as I noted above,
but also must not have received any earnings from the employer for this period
of unemployment. The employment insurance scheme is meant to meet the needs of
those who are without an income because of a period of unemployment.
[30]
In contrast, work-sharing claimants continue to
be paid by their employer for the days on which they work, even though there are
fewer of these than before the work-sharing agreement came into force.
[31]
These differences
between the work-sharing scheme and the regular benefits scheme would be inconsequential
were it not for section 42 of the Regulations, which provides that, subject
to sections 43 to 49, the Act and any regulations made under the Act apply
to the claimant, with such modifications as the circumstances require. In the absence of any additional provisions, claimants covered by a
work-sharing agreement are not entitled to benefits because they cannot satisfy
the criteria of interruption of employment, interruption of earnings and
availability. Moreover, exempting claimants from the interruption of employment
criteria could remove the work-sharing scheme from Parliament’s jurisdiction.
[32]
Parliament understood these difficulties and
acted accordingly. Regarding the interruption of earnings, section 43 of
the Regulations provides that in respect of a person employed in work-sharing
employment, an interruption of earnings occurs when there is a reduction of at
least 10 per cent in the person’s normal weekly earnings. The Commission does
not participate in work-sharing regimes unless the hours of work in a work unit
are reduced by at least 10 per cent: see Applicant’s Record, at page 131.
[33]
As for the other criteria that could prevent the
payment of benefits to participants in a work-sharing scheme, Parliament used on
the presumption created by subsection 24(3) of the Act, which I reproduce,
again, below:
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24.(3) For the
purposes of this Part, a claimant is unemployed and capable of and available
for work during a week when the claimant works in work-sharing employment.
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24.(3) Pour l’application
de la présente partie, un prestataire est réputé être en chômage, capable de
travailler et disponible à cette fin durant toute semaine où il exerce un
emploi en travail partagé.
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[34]
In the event of a claimant not working in
work-sharing employment during a week, the presumption does not apply, and the
payment of work-sharing benefits is not authorized by the Act because the
claimant does not satisfy the eligibility criteria. But the question what it
means to “exercer un emploi” in this context remains.
[35]
The phrase “exercer un emploi” or “exerce un emploi” is not in the Le Petit Robert (2008) or the Multi
Dictionnaire de la langue française (2003), or in the online dictionary Le
Trésor de la langue française. The definition of
the verb “exercer” in Le Petit Robert includes the meaning of “pratiquer (des activités professionnelles)” [carry out (work activities)] and gives as
possible synonyms, depending on the context, “faire” [do],
“s’aquitter” [fulfill or carry out], “remplir” [fulfill, carry out, or do] or “travailler” [work].
This does little to clarify the meaning of “exercer un emploi”.
[36]
In the Act, the expression “exercer un emploi” is sometimes synonymous with “to be
employed”, such as in the definition of “assuré” [“insured person”] in section 2 of the Act: “personne qui exerce ou a exercé un emploi assurable” [“a person who is
or has been employed in insurable employment”]. In
other circumstances, the phrase means the equivalent of the verb “travailler” [to work]. This is the case of subparagraph 54(c)(i),
which authorizes the Commission to make regulations “prévoyant les conditions et les circonstances
dans lesquelles le prestataire est considéré comme ayant ou n’ayant pas
effectué une semaine entière de travail pendant qu’il exerce un emploi à titre
de travailleur indépendant” [“prescribing the conditions and
circumstances under which a claimant while self-employed . . . is to
be considered to have worked or not worked a full working week”]. It seems obvious to me that one cannot be employed (in the sense
of being employed by an employer) when one is self-employed. “Exercer un emploi”, in this context, must mean “travailler” [to
work].
[37]
In the case of subsection 24(3) of the Act
and section 42 of the Regulations, both meanings of the phrase can be used
without doing violence to the language. The necessary conclusion is that the
phrase “exerce un emploi” is
ambiguous and derives its meaning from its context.
[38]
The English version of subsection 24(3)
uses the word “works”, which is a form of the
verb “to work”. According to the Canadian
Oxford (Oxford University Press, Don Mills, 2001), the main meaning of this
verb is “do work; be engaged in bodily or mental
activity”. This definition is followed by another: “be employed in certain work”. The wording of
subsection 24(3) and section 42 does not require that one of these
meanings be used over the other. Just like the French version, the English
version is ambiguous, which leads me to, once again, define these words in
their context.
[39]
Let us return to the wording of
subsection 24(3), which provides that a claimant “is unemployed
. . . during a week when the claimant works in work-sharing
employment”. This suggests that the issue of the
application of the presumption (and entitlement to work-sharing benefits) must
be reviewed from week to week. This is consistent with the logic of the Act
regarding entitlement to benefits. The time unit for benefit payment purposes
is one week: see sections 9 and 12 of the Act, which provide that benefits
are payable for each week of unemployment included in the benefit period. Parliament
was careful to define “week of unemployment”:
see section 11 of the Act. Claimants are required to communicate with the
Commission every week for which they are claiming benefits: see
sections 49 and 50 of the Act.
[40]
It is thus entirely logical that the presumption
applies from week to week since the week is the basic time unit for the payment
of benefits. If this is the case, it follows that employment must also be from
week to week, meaning that the facts allowing the presumption to be applied may
vary from one week to the next. A definition of “exercé un emploi” that gives primacy
to the status of being employed is at odds with the idea of weekly changes. Generally
speaking, employee status does not change during a benefit period.
[41]
I am therefore of the opinion that the fact that
the presumption applies from week to week shows that, in the context of
subsection 24(3) of the Act, “exercer un emploi” is probably not
referring to the status of being employed.
[42]
Let us continue our examination of
subsection 24(3). To which days of the week does the presumption apply? Days
on which employees work their shift and are paid accordingly do not trigger the
application of the presumption since no work-sharing benefits are payable or
owed for these days. The presumption only operates on days where employees do not
work since it is only on those days that claimants are without an income and
wish to receive work-sharing benefits.
[43]
If the presumption applies only to the days on
which claimants do not work, its operation cannot depend on the claimants’
status since their status is the same on both the days they do work and the
days they do not. This suggests that what triggers the application of the
presumption is the act of working, that is, performing services. For the
purposes of subsection 24(3), therefore, “exercer
un emploi” means working in the sense of performing
services.
[44]
Is this conclusion consistent with the wording
of section 48 of the Regulations, reproduced below?
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48. The rate of
weekly benefits payable to a claimant employed under a work-sharing agreement
approved by the Commission for the purposes of section 24 of the Act is an
amount that bears the same ratio to the claimant’s rate of weekly benefits
determined pursuant to section 14 of the Act that
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48. Le taux de
prestations hebdomadaires qui est payable au prestataire employé aux termes d’un
accord de travail partagé approuvé par la Commission pour l’application de l’article
24 de la Loi est un montant égal à son taux de prestations hebdomadaires
établi selon l’article 14 de la Loi multiplié par la fraction:
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(a) the number of
hours, days or shifts that the claimant did not work because of the
work-sharing agreement
bears to
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a) dont le
numérateur est le nombre d’heures, de jours ou de quarts de travail pendant
lesquels il n’a pas travaillé en raison de l’accord de travail
partagé;
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(b) the number of
hours, days or shifts that the claimant would have worked for the employer
according to the claimant’s usual work schedule.
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b) dont le
dénominateur est le nombre d’heures, de jours ou de quarts de travail pendant
lesquels il aurait travaillé pour l’employeur selon son horaire de travail
habituel.
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My emphasis
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Je souligne
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[45]
The use of the verb “travailler”
in paragraph (a) suggests that when Parliament means “work”, it writes “travailler” and when it writes “exerce un emploi”, it means something else.
[46]
It is clear that when Parliament writes “travailler”, it means “work”.
But the assumption that Parliament uses words in a consistent manner does not exclude
the possibility that, in certain contexts, when Parliament says “exerce un emploi”, it also means “travailler”. Paragraph 54(c) of the Act, cited above, illustrates
this. It is hard to imagine that a self-employed worker can have employee
status.
[47]
The same applies to section 11 of the
Regulations, where Parliament refers to an insured person who “exerce un emploi
pendant moins de 35 heures par semaine” [“is employed
. . . for less than 35 hours per week”]. It is difficult
to conceive how an insured person would have the status of an employee for only
35 hours a week. It is more likely that Parliament was speaking of an insured
person who works [“travaille”] at least 35 hours a week.
[48]
All this to say that, even though Parliament
sometimes uses the verb “travailler” to express the idea of performing services, the fact remains that a
review of the context suggests that it also sometimes uses the expression “exerce un emploi” to express this idea.
[49]
In short, the Act, particularly
subsection 24(3), requires a claimant to work during a week in order to be
entitled to work-sharing benefits on the days he or she does not work during
that week. The fact that the Commission accepts, as an administrative measure,
that a 30-minute period of work satisfies this requirement does not change the
nature of the requirement.
[50]
In the case at bar, the claimants did not perform
any services during the week of July 31, 2011, and cannot benefit from the
presumption. They are therefore not entitled to work-sharing benefits. The fact
that they were paid two or three days that week under the collective agreement
does not affect their entitlement to work-sharing benefits for that week. In
order to grant the relief sought by the claimants, the days paid under the
collective agreement would have to be considered as days on which the claimants
performed services. Nothing in the Act or the Regulations authorizes such a
fiction.
[51]
I am sensitive to the fact that the
representatives of the Commission seem to have reassured the employees that the
provisions of the collective agreement would remain in force, except those
regarding hours of work and seniority. Such promises on the part of officers of
the Commission cannot change the wording of the Act. These promises may give
rise to other remedies, but, in the context of an application for judicial review,
all we can do is to ensure that the Act is respected as worded.
[52]
I am also sensitive to the argument that the
more senior employees in a work unit would not be inclined to support a
work-sharing agreement if it meant relinquishing the benefits they have obtained
from their employer in the course of collective bargaining. This result would
go against the purpose of section 24 of the Act, which aims to prevent layoffs.
On the other hand, we should not lose sight of the fact that the decision to
participate in a work-sharing scheme depends on a number of factors, not all of
which are related to seniority and benefits. Just one example of many: layoffs
necessarily mean a redistribution of tasks, with more senior employees having
to replace less senior ones and thus having to perform less desirable, and
possibly less well paid, tasks. Each work unit must make its decision in light
of these circumstances.
[53]
Consequently, I would allow the application for
judicial review with costs, set aside the decisions of the Umpire and the Board
of Referees, and refer Mr. Cloutier’s and Mr. Leblond’s files back to
the Social Security Tribunal for redetermination on the basis that Mr. Cloutier and Mr. Leblond are not entitled to work-sharing
benefits for the week of July 31, 2011. The decision of the Court
regarding the application for judicial review of Mr. Leblond will be filed
in Docket A-37-13.
“J.D. Denis Pelletier”
“I agree.
Johanne Gauthier J.A.”
“I agree.
Johanne Trudel J.A.”
Certified true
translation
François Brunet,
Revisor
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