Date: 20000721
Docket: A-717-98
CORAM: STRAYER J.A.
ISAAC J.A.
SEXTON J.A.
BETWEEN:
| THE ATTORNEY GENERAL OF CANADA |
Applicant
- and -
| ADRIANA HABERMAN |
Respondent
Heard at Toronto, Ontario, Tuesday, May 8, 2000
JUDGMENT delivered at Ottawa, Ontario, Friday, July 21, 2000
REASONS FOR JUDGMENT BY: SEXTON J.A.
CONCURRING REASONS BY: STRAYER J.A.
DISSENTING REASONS BY: ISAAC J.A.
Date: 20000721
Docket: A-717-98
CORAM: STRAYER J.A.
ISAAC J.A.
SEXTON J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
- and -
ADRIANA HABERMAN
Respondent
REASONS FOR JUDGMENT
SEXTON J.A.
INTRODUCTION
[1] The Attorney General raises two issues in this application for judicial review:
| (1) Does a Board of Referees or an Umpire have jurisdiction to determine the number of hours of insurable employment an employment insurance benefits claimant has earned, or does such jurisdiction belong exclusively to the Department of National Revenue by reason of paragraph 90(1)(d) and section 122 of the Employment Insurance Act1? |
| (2) How should section 94.1 of the Employment Insurance Regulations,2 which provides a "bridge" between the former Unemployment Insurance Act3 and the current Employment Insurance Act, be interpreted? |
LEGISLATIVE BACKGROUND
[2] Under the Unemployment Insurance Act, a worker"s eligibility for unemployment insurance benefits was determined by reference to that worker"s insurable employment in terms of the number of weeks worked in the claimant"s qualifying period. Normally, a claimant"s qualifying period constituted the 52 weeks preceding the claimant"s application for benefits.4 The week-based system was retained until January 4, 1997.5 After that date, under the Employment Insurance Act, a worker"s eligibility is determined by reference to the number of hours worked in the worker"s qualifying period.6
[3] To provide a "bridge" between the weekly and hourly systems, section 94.1 of the Employment Insurance Regulations was enacted, which states:
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[4] Where weeks of insurable employment are accumulated prior to January 1, 1997, section 94.1 converts those weeks of insurable employment to hours. One week of insurable employment is considered to represent 35 hours of insurable employment. In so doing, the weeks that were accumulated under the Unemployment Insurance Act are treated as hours under the Employment Insurance Act so as to determine whether a person has accumulated the requisite number of hours required to obtain employment insurance benefits.
FACTUAL BACKGROUND
[5] Ms. Haberman applied for employment insurance benefits in March, 1997. Since she was a "new entrant" or a "re-entrant" to the labour force, she was required to have at least 910 hours of insurable employment to be entitled to employment insurance benefits.7 The Canada Employment Insurance Commission (the "Commission") concluded that Ms. Haberman was not entitled to employment insurance benefits because she only had 904 hours of insurable employment, six hours short of the minimum required amount.
[6] Ms. Haberman"s hours of insurable employment in 1996 were caught by section 94.1 of the Employment Insurance Regulations . The Commission calculated Ms. Haberman"s hours of insurable employment by applying section 94.1 of the Regulations to convert the 18 weeks she had worked prior to January 1, 1997. In so doing, the Commission calculated that Ms. Haberman had earned a total of 630 hours of insurable employment in 1996,8 to which it added the 274 hours she had earned in 1997, for a total of 904 hours of insurable employment.
[7] Ms. Haberman complained that the Commission had miscalculated her hours of insurable employment. She argued that she had worked more than 35 hours per week in the 18 weeks she had worked in 1996. She argued that her employer paid her for 38 hours per week in 1996, giving her a total of 684 hours for 1996, which when added to the 274 hours she accumulated in 1997, put her well over the 910 total hours she was required to accumulate to be eligible for employment insurance benefits. Moreover, even though her employer had confirmed that Ms. Haberman had worked 38 hours per week, Ms. Haberman argued that she had, in fact, worked 39 hours per week. She explained that her employer had deducted two hours per week from her paycheque to permit her to attend a doctor"s appointment, in circumstances where she had only visited a doctor for one hour per week. Accordingly, Ms. Haberman submitted, the 39 hours per week for which she should have been paid gave her a total of 976 hours.
[8] The Commission rejected Ms. Haberman"s submissions. It concluded that section 94.1 of the Regulations only permitted each week of insurable employment that occurred before January 1, 1997, to be converted to 35 hours, regardless of the actual number of hours a person worked during a week.
[9] Ms. Haberman appealed to the Board of Referees, which allowed her appeal. The Board held:
| The claimant"s case can be likened to someone who works 40, 50, or 60 hours a week. Legislation only allows the person to claim for a 35 hour work week. Using common sense, it should hold true in a reverse time frame. A person who is hired to work 8 " hours a day, (as in this case) but is forced because of health reasons to visit a doctor once a week for 1 hour, and is not paid for her 1 hour absence, should not be doubly punished. |
| The claimant is short by 6 hours for the minimum requirement according to the Commission, but, if one applies natural justice the claimant has exceeded her minimum requirement of hours. |
[10] After the Board of Referees issued its decision, the Commission requested an officer of the Department of National Revenue to determine the number of hours of insurable employment Ms. Haberman had earned in 1997. It did not request the officer to determine the number of hours she had earned in 1996.
DECISION UNDER APPEAL
[11] The Commission appealed the Board"s decision to an Umpire, who dismissed the Commission"s appeal. The Umpire held that section 94.1 did not require the Commission to convert a week of insurable employment in 1996 into 35 hours where a claimant provided evidence showing that more than 35 hours in a week had been worked. The Umpire concluded that since Ms. Haberman had in fact worked more than 35 hours per week in the 18 weeks for which she sought credit, Ms. Haberman had indeed provided evidence to the contrary, and therefore had a sufficient number of hours to entitle her to employment insurance benefits.
[12] The Commission seeks judicial review of the Umpire"s decision to this Court.
ANALYSIS
Did the Board of Referees and correlatively the Umpire have jurisdiction to determine the number of hours of insurable employment Ms. Haberman had earned?
[13] As previously mentioned, the Attorney General raised a preliminary issue to the proper interpretation of section 94.1 of the Regulations: namely, that the Board of Referees or an Umpire does not even have jurisdiction to apply section 94.1 of the Regulations, since only the Department of National Revenue has exclusive jurisdiction (subject to appeal) to determine the number of hours an insured person has had in insurable employment.
[14] The Attorney General"s submissions are based on paragraph 90(1)(d) and section 122 of the Employment Insurance Act , which are reproduced below:
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[15] The Unemployment Insurance Act contained very similar statutory provisions, which are reproduced below:
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[16] In Canada (A.G.) v. Vautour,9 this Court held that section 61(3) of the Unemployment Insurance Act served to prevent a Board of Referees or an Umpire from determining the length of a claimant"s insurable employment. It held:
| We would add that in any event the question as to whether and for how long the claimant was in insurable employment is one which neither the Board of Referees nor the Umpire has power to decide (see sec. 61(3) of the Act). |
[17] This Court reached a similar conclusion in Canada (A.G.) v. Kaur.10
[18] Recently, in Valentine v. Canada (A.G.),11 this Court (per Létourneau J.A.) affirmed Vautour and Kaur.
[19] In my view, paragraph 90(1)(d) and section 122 of the Employment Insurance Act are even more clearly worded than subsection 61(3) and section 89 of the Unemployment Insurance Act. Paragraph 90(1)(d) specifically states that an officer of the Department of National Revenue is authorized to make a ruling on "how many hours an insured person has had in insurable employment." In light of the jurisprudence referred to in the cases of Valentine , Vautour, Kaur, and section 122 of the Employment Insurance Act, which states that "if a question specified in section 90 arises in the consideration of a claim for benefits, it shall be determined by an authorized officer of the Department of National Revenue , as provided by that section" (emphasis added), I do not think that the Board of Referees and correlatively the Umpire had the jurisdiction to determine whether Ms. Haberman had a sufficient number of hours in insurable employment to qualify for employment insurance benefits.
[20] I have had the benefit of reading my colleague"s draft reasons, and must respectfully disagree with his conclusion that the Board of Referees and correlatively the Umpire had such jurisdiction. That the Minister only asked an official of the Department of National Revenue to determine Ms. Haberman"s insurable hours for 1997 after the Board had rendered its decision, without asking it to determine her insurable hours for 1996, does not vest the Board of Referees or correlatively the Umpire with jurisdiction to consider the number of insurable hours Ms. Haberman had. Similarly, that the Minister did not appear to argue to the Umpire that he did not have jurisdiction to consider the number of hours Ms. Haberman had in insurable employment should not vest the Umpire with such jurisdiction if the statute does not so provide. The parties to a proceeding cannot consent to jurisdiction where no such jurisdiction exists.12
[21] If Ms. Haberman disagreed with the Commission"s assessment of the number of hours she had worked, she could herself have brought a request pursuant to paragraph 90(1)(d), since that paragraph expressly permits not only the Commission but also an employee to request an officer of the Department of National Revenue authorized by the Minister to make a ruling on the number of hours an insured person has had in insurable employment. Like Létourneau J.A. concluded in Valentine , I sympathize with the difficulties the bifurcated route of appeal poses to self-represented litigants. Nevertheless, I remain bound by the law.
[22] Finally, I disagree with Ms. Haberman"s attempts to draw a distinction between the instant appeal and subsection 61(3) and section 89 of the Employment Insurance Act , in which she submits that what the Board of Referees and the Umpire did is merely engage in an exercise in statutory interpretation of section 94.1 of the Regulations, rather than to engage in a "hands on" determination of the number of hours an insured person has had in insurable employment, something that Ms. Haberman submits is the only matter that falls within the ambit of paragraph 90(1)(d) of the Employment Insurance Act . In my view, the distinction is one without a difference: the character of the question remains the same, regardless of how the number of hours Ms. Haberman had in insurable employment is determined.
[23] In light of my analysis of this issue, I need not consider the proper interpretation of section 94.1 of the Regulations. While I recognize that the Court in Canada (A.G.) v. Hoek13 assumed that the Umpire had jurisdiction to consider the number of hours an insured person has had in insurable employment, it does not appear that the Court was advised of the issue relating to the Umpire"s jurisdiction.
[24] Subsection 90(2) of the Employment Insurance Act, which is reproduced below, constitutes a time bar to Ms. Haberman bringing a ruling with respect to her 1996 hours of insurable employment:
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90 (2) La Commission peut faire la demande de décision à tout moment, et toute autre personne, avant le 30 juin suivant l'année à laquelle la question est liée. |
[25] Section 94 of the Act demonstrates that the Minister of National Revenue is under no such limitation:
| 94. Nothing in sections 90 to 93 restricts the authority of the Minister to make a decision under this Part or Part VII on the Minister's own initiative or to make an assessment after the date mentioned in subsection 90(2). |
94. Les articles 90 à 93 n'ont pas pour effet de restreindre le pouvoir qu'a le ministre de rendre une décision de sa propre initiative en application de la présente partie ou de la partie VII ou d'établir une évaluation ultérieurement à la date prévue au paragraphe 90(2). |
[26] Since the Commission is largely responsible for the mistaken avenue this appeal took, Ms. Haberman should not suffer because of the lapse of time. I would order an Umpire14 to "give the decision that the board of referees should have given" pursuant to subsection 117(b) of the Employment Insurance Act .
[27] The application for judicial review will be allowed, the decision of the Umpire will be set aside, and the matter will be referred to an Umpire on the basis that he order the Commission to request the Minister of National Revenue to determine Ms. Haberman"s 1996 hours of insurable employment.
"J. Edgar Sexton J.A."
Date: 20000721
Docket: A-717-98
C O R A M: STRAYER J.A.
ISAAC J.A.
SEXTON J.A.
B E T W E E N:
THE ATTORNEY GENERAL OF CANADA
Appellant
" and "
ADRIANA HABERMAN
Respondent
REASONS FOR JUDGMENT
STRAYER J.A.
[1] I have read the draft reasons of my colleagues Isaac J.A. and Sexton J.A. and have concluded that I must concur with Sexton J.A. as to the disposition of this judicial review.
[2] I agree with Isaac J.A. that the Commission initially has the authority to determine how many hours of insurable employment a claimant has in her qualifying period, if there is no dispute about the matter. Most commonly the hours (previously, weeks) of employment are readily determined from the Record of Employment or, if necessary, from the payroll records of the employer. However, it appears clear to me that paragraph 90(1)(d) of the Employment Insurance Act provides that such a question may be referred to the Department of National Revenue as to "how many hours an insured person has had in insurable employment". If Parliament did not mean to describe by such words the very question involved in this case, I cannot understand why it employed such language. Further, section 122 of the Act clearly states that if a question described in section 90 "arises in the consideration of a claim for benefits" (obviously consideration by the Commission which normally determines claims for benefits ) then such question "shall be determined" by the Department of National Revenue, which I take it means the Commission must make a request to the Department for a determination as provided for in sub-section 90(1).
[3] Here a question arose as to the hours the claimant had had in insurable employment as soon as the Commission calculated that she had 630 hours in 1996. She disputed that calculation and at that point the matter should, as required by section 122, have been sent to the Department for determination. In the light of section 122 neither the Board of Referees nor the Umpire had the authority to decide that question.
[4] It is therefore not open to this Court in these proceedings involving judicial review of the Umpire"s decision to determine the hours of insurable employment of the claimant. If I should be wrong on this point, however, I would concur with Isaac J.A. that a proper interpretation of section 94.1 of the Unemployment Insurance Regulations would permit the Commission, the Board of Referees, and the Umpire to calculate the actual number of hours worked by the claimant where there is evidence that enables them to do so: that is, for the reasons expressed by Isaac J.A., the words "shall be considered" should be interpreted as directory, given the object and purpose of the Employment Insurance Act.
[5] Given my view on the jurisdictional question, however, I concur with Sexton J.A. as to the disposition of this judicial review.
(s) "B.L. Strayer"
J.A.
Date: 20000721
Docket: A-717-98
CORAM: STRAYER J.A.
ISAAC J.A.
SEXTON J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
- and -
ADRIANA HABERMAN
Respondent
REASONS FOR JUDGMENT
ISAAC J.A.
INTRODUCTION
[1] On this section 28 application, the Attorney General of Canada (the "applicant") has asked us to review and set aside the decision of an Umpire appointed under the Employment Insurance Act15 (the "EI Act"), dated 22 August 1998 (CUB42615),dismissing an appeal by the Canada Employment Commission (the "Commission") from a decision of a Board of Referees (the "Board"), appointed under the EI Act , dated 3 July 1997.
[2] The application is brought on grounds that the learned Umpire erred in law in his interpretation of section 94.1 of the Employment Insurance Regulations (the "EI Regulations"); exceeded his jurisdiction; and erred in failing to consider relevant evidence and based his decision on an erroneous finding of fact without regard for the material before him.
THE FACTS
[3] On 12 March 1997, the respondent applied for employment insurance benefits. In her application, she stated that she normally worked 42.5 hours per week. The Commission denied her benefits on the ground that she did not work long enough to qualify for employment insurance benefits. The Commission stated that the respondent had worked 309 hours of insurable employment during that period and needed to have worked 910 hours in order to qualify.
[4] The respondent appealed the decision of the Commission to the Board stating that she had in fact worked in excess of 910 hours and that her employer would be lying if it said otherwise. This prompted the Commission to communicate with her employer. The employer informed the Commission that the respondent had in fact worked 38 hours each week for 18 weeks in 1996 and 274 hours in 1997 - a total of 958 hours for the period.
[5] The Commission did not act on this information and pay benefits to the respondent or request an opinion from the Minister of National Revenue (the "Minister") under paragraph 90(1)(d) of the EI Act . Instead, they applied the conversion formula set out in section 94.1 of the EI Regulations and determined that the respondent had 630 hours of insurable employment in 1996 (35 hours per week for 18 weeks), and 274 hours of insurable employment in 1997 - a total of 904 hours of insurable employment for the period. The Commission then telephoned the respondent and advised her of the corrected total, but explained that she was still 6 hours short of the 910 hours of insurable employment required to receive benefits under the EI Act.
[6] The respondent appeared before the Board and testified. Her testimony was tape recorded. Her position before the Board was that she had worked 8.5 hours per day during the period and was therefore entitled to benefits16.
[7] In their representations to the Board, the Commission framed the issue and summarized their position in the following words:
| The issue under appeal is whether the claimant has sufficient weeks of insured employment to establish a claim pursuant to sections 7 and 8 of the Employment Insurance Act. The relevant sections of the Employment Insurance Act and Regulations are attached.17 |
| The Commission submits that the claimant has 904 insurable hours of employment, while she requires 910 hours. Although the claimant may have worked and can provide proof of working more than 35 hours per week in 1996, unfortunately, Regulation 94.1 only allows those weeks to be converted to hours at 35 hours per week.18 |
| [Emphasis added.] |
[8] One 3 July 1997, the Board allowed the respondent"s appeal for the following reasons:
| DECISION |
| The Board"s decision is that the claimant does have sufficient weeks of insured employment to establish a claim pursuant to Sections 7 and 8 of the Employment Insurance Act. |
| [Emphasis added.] |
| The claimant"s case can be likened to someone who works 40, 50, or 60 hours a week. Legislation only allows the person to claim for a 35 hour work week. Using common sense, it should hold true in a reverse time frame. A person who is hired to work 8 " hours a day, (as in this case) but is forced because of health reasons to visit a doctor once a week for 1 hour, and is not paid for her 1 hour absence, should not be doubly punished. |
| The claimant is short by 6 hours for the minimum requirement according to the Commission, but, if one applies natural justice the claimant has exceeded her minimum requirement of hours. The Board notes than [sic] an employee and employer both pay premiums based on total hours worked but can only be credited for 35 hours a week.19 |
| [Emphasis in original.] |
[9] The applicant appealed this decision to an Umpire, alleging errors based upon paragraphs (2)(b) and (c) of section 115 of the EI Act.
[10] On 2 September 1977, after the Board had rendered their decision, an employee of the Commission, purporting to act pursuant to subsection 90(1) of the EI Act, asked the Minister for a ruling in the following terms:
| -Claimant disputes calculation of insurable hours |
| -Board of Referees has exceeded their jurisdiction in ruling more hours than calculated |
| -Please comment on # of insurable hours (1997) |
[11] The Minister replied on 15 October 1997 in the following terms:
| Worker was employed under a contract of service as required by section 5(1)(a) of the EI Act. Therefore the period Jan 1, 1997 to Feb 19, 1997 is insurable. There were 274 insurable hours for the period in question.20 |
[12] The Umpire dismissed the applicant"s appeal on two grounds. First, he decided, as a question of fact, that the employer had over-counted the respondent"s doctors appointments and, if one used the respondent"s calculations, she had accumulated sufficient hours to qualify for benefits. Second, he said that the EI Act uses the word "deemed" to describe what section 94.1 does - they deem a week to be 35 hours. However, in this case, the respondent"s employer has given a definite number of hours, which, in total are in excess of the statutory number. It is therefore not necessary to resort to section 94.1 of the EI Act . Ordinarily, a deeming provision is used to infer a fact; but where, as here, the facts are certain, the deeming provision is irrelevant. Therefore, the Commission should have counted in full the 684 hours which the respondent"s employer said she had worked for the 18 weeks in 1996. The Umpire explained the second ground for dismissal in the following terms:
| I have some problem with the wording of the Act where they use the term "deemed". Deemed is not defined in the legislation. It is frequently used to clear a muddy situation where it is difficult to tell what a fact is, and the legislation provides an inference to be drawn or a prima facie finding where an event is deemed to take place. However it is my interpretation that where the number of hours are set out with definity [sic], then they should not have to be deemed because they are definite. For legislation to do this retroactively it seems to me to be verging on perversity, particularly in social legislation where it affects a citizen whose premiums have been the life blood of the Commission and rights are taken from a citizen denying that person what he or she, in the absence of that provision, would be a legal entitlement.21 |
| [Emphasis added.] |
RELEVANT LEGISLATIVE PROVISIONS
Unemployment Insurance Act:
| 6.(1) Unemployment insurance benefits are payable as provided in this Part to an insured person who qualifies to receive those benefits. |
6.(1) Les prestations d"assurance-chômage sont payables, ainsi que le prévoit la présente partie, à un assuré qui remplit les conditions requises pour recevoir ces prestations. |
| (2) An insured person, other than a new entrant or re-entrant to the labour force, qualifies to receive benefit under this Act if the person (a) has, during the person"s qualifying period, had at least the number of weeks of insurable employment set out in Table 1 of the schedule in relation to the regional rate of unemployment that applies to the person; and (b) has had an interruption of earnings from employment. |
(2) L"assuré autre qu"une personne qui devient ou redevient membre de la population active remplit les conditions requises pour recevoir des prestations en vertu de la présente loi si : a) d"une part, il a, au cours de sa période de référence, exercé un emploi assurable pendant au moins le nombre de semaines indiqué au tableau 1 de l"annexe en fonction du taux régional de chômage qui lui est applicable; b) d"autre part, il y a eu arrêt de la rémunération provenant de son emploi. |
Employment Insurance Act:
| "insurable earnings" means the total amount of the earnings, as determined in accordance with Part IV, that an insured person has from insurable employment; |
| "_rémunération assurable_" Le total de la rémunération d'un assuré, déterminé conformément à la partie IV, provenant de tout emploi assurable. |
| 7. (1) Unemployment benefits are payable as provided in this Part to an insured person who qualifies to receive them. |
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) 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. |
(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. |
| (3) An insured person who is 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 910 or more hours of insurable employment in their qualifying period. |
(3) L'assuré qui est 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 neuf cent dix heures. |
| (4) An insured person is a new entrant or a re-entrant to the labour force if, in the last 52 weeks before their qualifying period, the person has had fewer than 490 (a) hours of insurable employment; (b) hours for which benefits have been paid or were payable to the person, calculated on the basis of 35 hours for each week of benefits; (c) prescribed hours that relate to employment in the labour force; or (d) hours comprised of any combination of those hours. |
(4) La personne qui devient ou redevient membre de la population active est celle qui, au cours de la période de cinquante-deux semaines qui précède le début de sa période de référence, a cumulé, selon le cas_: a) moins de quatre cent quatre-vingt-dix heures d'emploi assurable; b) moins de quatre cent quatre-vingt-dix heures au cours desquelles des prestations lui ont été payées ou lui étaient payables, chaque semaine de prestations se composant de trente-cinq heures; c) moins de quatre cent quatre-vingt-dix heures reliées à un emploi sur le marché du travail, tel qu'il est prévu par règlement; d) moins de quatre cent quatre-vingt-dix de l'une ou l'autre de ces heures. |
| (5) For the purposes of subsection (4), an hour that is taken into account under any of paragraphs (4)(a), (b) or (c) may not be taken into account under the other. |
(5) Pour l'application du paragraphe (4), une heure comptée au titre de l'un des alinéas (4)a) à c) ne peut l'être à nouveau au titre de l'un ou l'autre de ces alinéas. |
| (6) An insured person is not qualified to receive benefits if it is jointly determined that the insured person must first exhaust or end benefit rights under the laws of another jurisdiction, as provided by Article VI of the Agreement Between Canada and the United States Respecting Unemployment Insurance, signed on March 6 and 12, 1942. |
(6) L'assuré ne remplit pas les conditions requises s'il est convenu, au titre de l'Article VI de l'Accord entre le Canada et les États-Unis d'Amérique concernant l'assurance-chômage signé les 6 et 12 mars 1942, qu'il doit d'abord épuiser ses droits de recevoir des prestations, ou y mettre fin, aux termes des lois de l'autre juridiction. |
| 55. (1) The Commission may, with the approval of the Governor in Council, make regulations for establishing how many hours of insurable employment a person has, including regulations providing that persons whose earnings are not paid on an hourly basis are deemed to have hours of insurable employment as established in accordance with the regulations. |
| 55. (1) La Commission peut, avec l'agrément du gouverneur en conseil, prendre des règlements concernant l'établissement du nombre d'heures d'emploi assurable d'une personne et, notamment, prévoyant que les personnes dont la rémunération est versée sur une base autre que l'heure sont réputées avoir le nombre d'heures d'emploi assurable établi conformément aux règlements. |
| 56. The purpose of this Part is to help maintain a sustainable employment insurance system through the establishment of employment benefits for insured participants and the maintenance of a national employment service. |
56. La présente partie a pour objet d'aider à maintenir un régime d'assurance-emploi durable par la mise sur pied de prestations d'emploi pour les participants et par le maintien d'un service national de placement. |
| 60. (1) The Commission shall maintain a national employment service to provide information on employment opportunities across Canada to help workers find suitable employment and help employers find suitable workers. |
60. (1) La Commission maintient un service national de placement fournissant de l'information sur les possibilités d'emploi au Canada en vue d'aider les travailleurs à trouver un emploi convenable et les employeurs à trouver des travailleurs répondant à leurs besoins. |
| 67. Subject to section 70, a person employed in insurable employment shall pay, by deduction as provided in subsection 82(1), a premium equal to their insurable earnings multiplied by the premium rate set by the Commission. |
67. Sous réserve de l'article 70, toute personne exerçant un emploi assurable verse, par voie de retenue effectuée au titre du paragraphe 82(1), une cotisation correspondant au produit obtenu par multiplication de sa rémunération assurable par le taux fixé par la Commission. |
| 82. (1) Every employer paying remuneration to a person they employ in insurable employment shall (a) deduct the prescribed amount from the remuneration as or on account of the employee's premium payable by that insured person under section 67 for any period for which the remuneration is paid; and (b) remit the amount, together with the employer's premium payable by the employer under section 68 for that period, to the Receiver General at the prescribed time and in the prescribed manner. |
82. (1) L'employeur qui paie une rétribution à une personne exerçant à son service un emploi assurable est tenu de retenir sur cette rétribution, au titre de la cotisation ouvrière payable par cet assuré en vertu de l'article 67 pour toute période à l'égard de laquelle cette rétribution est payée, un montant déterminé conformément à une mesure d'ordre réglementaire et de le verser au receveur général avec la cotisation patronale correspondante payable en vertu de l'article 68, au moment et de la manière prévus par règlement. |
| 90. (1) An employer, an employee, a person claiming to be an employer or an employee or the Commission may request an officer of the Department of National Revenue authorized by the Minister to make a ruling on any of the following questions: (a) whether an employment is insurable; (b) how long an insurable employment lasts, including the dates on which it begins and ends; (c) what is the amount of any insurable earnings; (d) how many hours an insured person has had in insurable employment; (e) whether a premium is payable; (f) what is the amount of a premium payable; (g) who is the employer of an insured person; (h) whether employers are associated employers; and (i) what amount shall be refunded under subsections 96(4) to (10). |
| 90. (1) La Commission, de même que tout employé, employeur ou personne prétendant être l'un ou l'autre, peut demander à un fonctionnaire du ministère du Revenu national autorisé par le ministre de rendre une décision sur les questions suivantes_: a) le fait qu'un emploi est assurable; b) la détermination de la durée d'un emploi assurable, y compris ses dates de début et de fin; c) la détermination de la rémunération assurable; d) la détermination du nombre d'heures exercées dans le cadre d'un emploi assurable; e) l'existence de l'obligation de verser une cotisation; f) la détermination du montant des cotisations à verser; g) l'identité de l'employeur d'un assuré; h) le fait qu'un employeur est un employeur associé; i) le montant du remboursement prévu à l'un ou l'autre des paragraphes 96(4) à (10). |
| (2) The Commission may request a ruling at any time, but a request by any other person must be made before the June 30 following the year to which the question relates. |
(2) La Commission peut faire la demande de décision à tout moment, et toute autre personne, avant le 30 juin suivant l'année à laquelle la question est liée. |
| (3) The authorized officer shall make the ruling within a reasonable time after receiving the request. |
(3) Le fonctionnaire autorisé rend sa décision dans les meilleurs délais suivant la demande. |
| 114. (1) A claimant or other person who is the subject of a decision of the Commission, or the employer of the claimant, may appeal to the board of referees in the prescribed manner at any time within (a) 30 days after the day on which a decision is communicated to them; or (b) such further time as the Commission may in any particular case for special reasons allow. |
114. (1) Quiconque fait l'objet d'une décision de la Commission, de même que tout employeur d'un prestataire faisant l'objet d'une telle décision, peut, dans les trente jours suivant la date où il en reçoit communication, ou dans le délai supplémentaire que la Commission peut accorder pour des raisons spéciales dans un cas particulier, interjeter appel de la manière prévue par règlement devant le conseil arbitral. |
| 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; |
115. (1) Toute décision d'un conseil arbitral peut, de plein droit, être portée en appel devant un juge-arbitre par la Commission, |
| (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. |
(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. |
| 117. An umpire may decide any question of law or fact that is necessary for the disposition of an appeal and may (a) dismiss the appeal; (b) give the decision that the board of referees should have given; (c) refer the matter back to the board of referees for re-hearing or re-determination in accordance with such directions as the umpire considers appropriate; or (d) confirm, rescind or vary the decision of the board of referees in whole or in part. [Emphasis added.] |
117. Le juge-arbitre peut trancher toute question de droit ou de fait pour statuer sur un appel; il peut rejeter l'appel, rendre la décision que le conseil arbitral aurait dû rendre, renvoyer l'affaire au conseil arbitral pour nouvelle audition et nouvelle décision conformément aux directives qu'il juge indiquées, confirmer, infirmer ou modifier totalement ou partiellement la décision du conseil arbitral. |
| 118. The decision of the umpire on an appeal is final and, except for judicial review under the Federal Court Act, is not subject to appeal to or review by any court. |
118. La décision du juge-arbitre sur un appel est définitive et sans appel; elle peut cependant faire l'objet d'une demande de contrôle judiciaire aux termes de la Loi sur la Cour fédérale. |
| 122. If a question specified in section 90 arises in the consideration of a claim for benefits, it shall be determined by an authorized officer of the Department of National Revenue, as provided by that section. |
122. Si, au cours de l'examen d'une demande de prestations, une question prévue à l'article 90 se pose, cette question est décidée par le fonctionnaire autorisé du ministère du Revenu national comme le prévoit cet article. |
| 160. For the purpose of calculating after 1996 how many hours of insurable employment and the amount of insurable earnings a claimant has under this Act, other than Part VIII, insurable employment and insurable earnings occurring (a) before June 30, 1996 shall be determined in accordance with the former Act; and (b) on or after June 30, 1996 but before January 5, 1997 shall be determined in accordance with this Act, as it applies on June 30, 1996. |
160. Aux fins du calcul, après 1996, de la rémunération assurable et du nombre d'heures d'emploi assurable du prestataire, sauf en application de la partie VIII, la rémunération assurable et l'emploi assurable sont tenus en compte conformément_: a) à l'ancienne loi, s'ils sont antérieurs au 30 juin 1996; b) à la présente loi, dans sa version du 30 juin 1996, s'ils ont trait à la période allant du 30 juin 1996 au 4 janvier 1997. |
| 167. The Commission may, with the approval of the Governor in Council, make regulations providing for any other transitional matters, including regulations (a) providing for the transition from weeks of insurable employment to hours of insurable employment, or from any other basis to another under Part VIII; and (b) for establishing requirements to qualify to receive benefits, the duration of entitlement to benefits, benefit rates and disentitlement or disqualification from receiving benefits. |
167. La Commission peut, avec l'agrément du gouverneur en conseil, prendre des règlements prévoyant toute autre mesure transitoire, notamment_: a) la transition de l'utilisation des semaines d'emploi assurable à celle des heures d'emploi assurable ou, pour l'application de la partie VIII, l'utilisation de toute autre mesure; b) l'établissement_: (i) des conditions requises pour recevoir des prestations et des règles d'admissibilité et d'exclusion, (ii) de la durée de l'admissibilité au bénéfice des prestations, (iii) du taux des prestations. |
Employment Insurance Regulations:
| 9.1 Where a person"s earnings are paid on an hourly basis, the person is considered to have worked in insurable employment for the number of hours that the person actually worked and for which the person was remunerated. |
9.1 Lorsque la rémunération d"une personne est versée sur une base horaire, la personne est considérée comme ayant exercé un emploi assurable pendant le nombre d"heures qu"elle a effectivement travaillées et pour lesquelles elle a été rétribuée. |
| 10.(1) Where a person"s earnings are not paid on an hourly basis but the employer provides evidence of the number of hours that the person actually worked in the period of employment and for which the person was remunerated, the person is deemed to have worked that number of hours in insurable employment. |
10.(1) Lorsque la rémunération d"une personne est versée sur une base autre que l"heure et que l"employeur fournit la preuve du nombre d"heures effectivement travaillées par elle au cours de la période d"emploi et pour lesquelles elle a été rétribuée, celle-ci est réputée avoir travaillé ce nombre d"heures d"emploi assurable. |
| 94.1 Where, for the purposes of the Act and in respect of a benefit period established on or after January 5, 1997, a claimant presents evidence of a week of insurable employment that occurred before January 1, 1997, that week of insurable employment shall be considered to represent 35 hours of insurable employment. [Emphasis added.] |
| 94.1 Lorsque, pour l"application de la Loi, le prestataire présente, à l"égard d"une prériode de prestations établie le 5 janvier 1997 ou après cette date, la preuve d"une semaine d"emploi assurable antérieure au 1er janvier 1997, cette semaine d"emploi assurable est considérée comme ayant 35 heures d"emploi assurable. |
ISSUES
[13] As I have already said, the applicant has brought this application on three grounds. They are set out in paragraphs 22 to 24 of the applicant"s memorandum of fact and law in the form of questions:
| 1. Did the Umpire act without jurisdiction, act beyond his jurisdiction or refused to exercise his jurisdiction when he dismissed the Commission"s appeal? |
| 2. Did the Umpire err in law in making his decision or order, whether or not the error appears on the face of the record when he dismissed the Commission"s appeal? |
| 3. Did the Umpire base his decision on an erroneous finding of fact that he made in perverse and capricious manner and without regard to the material before him when he dismissed the Commission"s appeal? |
ANALYSIS
[14] I will deal with each issue. However, before doing so, I wish to make some observations on the submission of counsel in paragraph 25 of the applicant"s memorandum of fact and law that the test for intervention by an Umpire in the decision of a Board was laid down by this Court in Attorney General of Canada v. McCarthy as follows:
| In Roberts et al. V. Canada Employment and Immigration Commission et al. (1985), 60 N.R. 349 (F.C.A.), and Taylor v. Minister of Employment and Immigration (1991), 126 N.R. 345 (F.C.A.), this Court held that an appeal to an Umpire is not an appeal in the usual sense or a trial de novo, but a proceeding in the nature of judicial review. In Roberts, this Court also held that where a decision of a Board of Referees is challenged because it was based on erroneous findings of fact, the Umpire"s review is limited to considering and determining whether the view of the facts taken by the Board of Referees was reasonably open to them on the record. Put another way, the test is whether there was any evidence in the record upon which the Board of Referees could have found as they did without error in principle.22 |
[15] I agree with this test, but it does not, of course, prevent the Umpire from deciding any question of fact that is necessary for the disposition of an appeal, as the opening words of section 117 of the EI Act plainly authorizes an Umpire to do.
STANDARD OF REVIEW
[16] Since this is an application for judicial review, it would be helpful to state the standard of review that we ourselves should apply in relation to the decision of the Umpire.
[17] Since the judgment of the Supreme Court of Canada in Pushpanathan v. Canada, it would seem that, in judicial review proceedings, lower courts are required to state "the standard of review of the decision of the administrative tribunal whose decision is being reviewed"23. Counsel for the parties did not refer to us, either in their memoranda or in oral argument, any decision of this Court on the standard of review of the decisions of umpires, and I was unable to find any from my own research.
[18] Counsel for the respondent, adverting to the provision in section 118 of the EI Act that a decision of an umpire on an appeal is final and, except for judicial review in this Court, is not subject to an appeal or review by any court, submits that the standard is as set out in Pasiechnyk v. Saskatchewan (Workers" Compensation Board), at page 904:
| 1. if the question of law at issue is within the tribunal"s jurisdiction, it will only exceed its jurisdiction if it errs in a patently unreasonable manner; a tribunal which is competent to answer a question may make errors in so doing without being subject to judicial review; |
| 2. if however the question at issue concerns a legislative provision limiting the tribunal"s powers, a mere error will cause it to lose jurisdiction and subject the tribunal to judicial review.24 |
[19] This submission is based on the premise that section 118 of the EI Act is a "full" privative clause. In my opinion, this premise is false. Section 118 of the EI Act is less than a "full" privative clause. In Dayco (Canada) v. C.A.W. , the LaForest J. stated that the wording of a privative clause will affect the standard of review. A "final and binding" is "a phrase that has little privative effect."25 If a "final and binding" privative clause is considered weak, then a "final" privative clause must be weaker still. Therefore, the privative clause in this statute is an indication that this Court need not treat the Umpire"s decision with the deference that counsel claims. It follows, in my view, that the standard laid down in Pasiechnyk is not appropriate here.
[20] Without embarking on the extensive analysis that Bastarache J. undertook in Pushpanathan, from paragraphs 23 to 48, I am in respectful agreement with him and with Cory J. in his dissent, that on questions of law or jurisdiction, the standard of review of the decision of an umpire is correctness. I agree with Cory J. that the findings of fact by umpires, like those of the Immigration and Refugee Board in Pushpanathan, must be accorded some deference26. That is the standard that I propose to apply here.
[21] I will now consider the three grounds upon which this application was brought.
| Did the Umpire err in law in making his decision or order when he dismissed the Commission"s appeal whether or not the error appears on the face of the record? |
[22] On this issue, the applicant makes two submissions. First, the applicant said that the Umpire erred when he said that the legislation used the word "deem" in relation to insurable hours of work. The EI Act and the EI Regulations do not use the word "deem" in relation to insurable hours of work, and the Umpire was wrong to say that they did. Second, even if the Umpire was correct in citing section 94.1 of the EI Regulations , he erred in law in failing to apply its mandatory provisions. The section states that a "week of insurable employment shall be considered to represent 35 hours of insurable employment" and, so the argument ran, the Umpire erred when he used the actual hours worked by the respondent to determine her insured employment in 1996.
[23] The respondent answers these submissions in two ways. First, she points to subsection 55(1) of the EI Act which reads:
| 55. (1) The Commission may, with the approval of the Governor in Council, make regulations for establishing how many hours of insurable employment a person has, including regulations providing that persons whose earnings are not paid on an hourly basis are deemed to have hours of insurable employment as established in accordance with the regulations. [Emphasis added.] |
55. (1) La Commission peut, avec l'agrément du gouverneur en conseil, prendre des règlements concernant l'établissement du nombre d'heures d'emploi assurable d'une personne et, notamment, prévoyant que les personnes dont la rémunération est versée sur une base autre que l'heure sont réputées avoir le nombre d'heures d'emploi assurable établi conformément aux règlements. |
[24] She says that this subsection applies to her case. Secondly, she says that upon a proper construction of section 94.1 of the EI Regulations the Umpire was correct in rejecting the interpretation of that section that the Commission had proposed and in taking into account the actual number of hours that the respondent had worked during the period.
[25] Given the respective positions of the parties on this issue, it becomes necessary to embark upon the proper interpretation of section 94.1 of the EI Regulations. For ease of reference, I reproduce here subsection 94.1.
| 94.1 Where, for the purposes of the Act and in respect of a benefit period established on or after January 5, 1997, a claimant presents evidence of a week of insurable employment that occurred before January 1, 1997, that week of insurable employment shall be considered to represent 35 hours of insurable employment. [Emphasis added.] |
94.1 Lorsque, pour l"application de la Loi, le prestataire présente, à l"égard d"une période de prestations établie le 5 janvier 1997 ou après cette date, la preuve d"une semaine d"emploi assurable antérieure au 1er janvier 1997, cette semaine d"emploi assurable est considérée comme ayant 35 heures d"emploi assurable. |
[26] It would be helpful to an appreciation of the place of that subsection in the new legislative scheme, if I excerpted here a summary of the changes to the Unemployment Insurance Act which occurred in 1996, when the statute was renamed the EI Act27:
| Summary This enactment brings together in a single statute under the name "Employment Insurance" provisions for income support and employment assistance for eligible unemployed persons. Income support is provided in a way that reinforces work. Employment assistance helps maintain a sustainable employment insurance system by helping unemployed persons to be productive participants in the labour force. |
Sommaire
Le texte réunit dans une même loi, intitulée Loi sur l"assurance-emploi, les dispositions relatives au soutien du revenu et celles relatives à l"aide à l"emploi offerte de manière à favoriser l"emploi. L"aide à l"emploi contribue à maintenir un régime d"assurance-emploi durable en aidant les sans-emploi à réintégrer le marché du travail. |
| The changes to the employment insurance system in this enactment constitute a comprehensive modernization of the system. They reform many of the core features of the system, introduce a number of new elements and make a number of technical amendments to improve fairness, administration and compliance. The major changes in over an extended period ending in 2001. |
Les divers changements apportés s"inscrivent dans une démarche de modernisation complète du régime. Ils en modifient plusieurs caractéristiques de base, introduisent de nouveaux éléments et apportent un certain nombre de modifications techniques en vue de rendre le régime plus équitable, d"en améliorer l"administration et d"accroître la conformité aux règles établies. Les changements majeurs prendront effet progressivement jusqu"en 2001. |
| The insurance system is changed from one based on weeks of work, with a weekly minimum and maximum on insurance coverage, to a system based on total earnings and total hours worked, starting from the first dollar and first hour. The minimum requirement to qualify for benefits is expressed in hours based on the national average work week of 35 hours. This creates a system that better accommodates the variety of work arrangements in today"s labour market. It also permits simplification of the reporting requirements for employers and of premium collection, which is from the first dollar earned up to an annual maximum.... [Emphasis added.] |
D"un régime d"assurance fondé sur le nombre de semaines de travail avec un minimum et un maximum hebdomadaires pour l"assujettissement, on passe à un régime fondé sur la rémunération totale et le nombre total d"heures de travail comptabilisés à partir du premier dollar et de la première heure. La norme minimale d"admissibilité au bénéfice des prestations est exprimée en heures en fonction de la semaine de travail moyenne qui est de trente-cinq heures à l"échelle nationale. On obtient ainsi un régime qui tient davantage compte des diverses formules de travail que l"on trouve sur le marché du travail actuel. Cela permet de simplifier les rapports à remplir par les employeurs et la perception des cotisations, qui s"effectue à partir du premier dollar gagné jusqu"à concurrence d"un maximum annuel.... |
| .... |
.... |
| The maximum length of a claim for benefits is reduced to 45 weeks and a new entrant or a re-entrant to the labour market is required to work 910 hours in order to be eligible for benefits.... |
Le nombre maximal de semaines au cours desquelles des prestations peuvent être versées est réduit à quarante-cinq, et les personnes qui deviennent ou redeviennent membres de la population active doivent travailler au moins neuf cent dix heures pour avoir droit à des prestations.... |
| Premium revenues fund the employment benefits described above for unemployed persons who are receiving or, within the past three years, have been in receipt of income support under the insurance provisions as well as persons who have received maternity or parental benefits within the past five years. [Emphasis added.] |
| Les cotisations servent à financer les prestations d"emploi offertes aux personnes qui reçoivent ou qui, au cours des trois dernières années, ont reçu un soutien du revenu dans le cadre du régime d"assurance, de même qu"aux personnes ayant reçu des prestations parentales ou de maternité au cours des cinq dernières années. |
| In light of the many significant changes contained in this enactment, there is also a provision for monitoring and assessing how individuals, communities and the economy are adjusting to the changes, including the effectiveness of the employment benefits. An annual report on this assessment is to be made to the Minister before December 31 in each year from 1997 to 2001. |
Compte tenu du grand nombre de changements, une disposition prévoit l"observation et l"évaluation de leurs effets sur les personnes, les collectivités et l"économie, de même que de l"efficacité des nouvelles prestations d"emploi. De 1997 à 2001, un rapport annuel de cette évaluation doit être fait au ministre avant le 31 décembre. |
[27] Part II of the EI Act, sections 56 to 65.2, is entitled "Employment Benefits and National Employment Service". The purpose of Part II is described in section 56, which reads:
| 56. The purpose of this Part is to help maintain a sustainable employment insurance system through the establishment of employment benefits for insured participants and the maintenance of a national employment service. |
56. La présente partie a pour objet d'aider à maintenir un régime d'assurance-emploi durable par la mise sur pied de prestations d'emploi pour les participants et par le maintien d'un service national de placement. |
[28] Section 58 of the EI Act defines an "insured participant", section 59 deals with the types of benefits that the Commission may establish to enable insured participants to obtain employment, and subsection 60(1) imposes upon the Commission a positive duty to maintain a national employment service.
[29] From a perusal of these and other sections of the EI Act and the EI Regulations, I have concluded that their objective is to assist persons, like the respondent, who find themselves unemployed and who may qualify for benefits.
[30] This class of legislation calls for a special interpretative approach. Dreidger suggests the following approach:
| Social welfare legislation is to be liberally construed so as to advance the benevolent purpose of the legislation. Where reasonable doubts or ambiguities arise, they are to be resolved in favour of the claimant. The courts"primary concern is ensuring that the legislative benefits reach the persons for whom they were designed.28 |
| [Emphasis added.] |
[31] This approach is consistent with that which the Supreme Court of Canada laid down in Abrahams v. Attorney General of Canada29, Hills v. Canada (Attorney General)30, and Re Rizzo & Rizzo Shoes Ltd.31, where Iacobucci J., writing for a unanimous Court, stated at paragraph 36:
| Finally, with regard to the scheme of the legislation, since the ESA (Employment Standards Act of Ontario) is a mechanism for providing minimum benefits and standards to protect the interests of employees, it can be characterized as benefits-conferring legislation. As such, according to several decisions of this Court, it ought to be interpreted in a broad and generous manner. Any doubt arising from difficulties of language should be resolved in favour of the claimant (see, e.g., Abrahams v. Attorney General of Canada, [1983] 1 S.C.R. 2, at p. 10; Hills v. Canada (Attorney General), [1988] 1 S.C.R. 513, at p. 537). It seems to me that, by limiting its analysis to the plain meaning of ss. 40 and 40a of the ESA, the Court of Appeal adopted an overly restrictive approach that is inconsistent with the scheme of the Act. |
| [Emphasis added.] |
[32] Hills, supra, was an appeal from a judgment of this Court. In that appeal an employee, has paid dues to his local union by check-off from his wages. The union sent part of all members" dues to the international union with which it was affiliated. The international union, in turn, used part of those dues to contribute to a strike fund to support a different affiliate union whose members were on strike. The issue before the Court was whether Hills and his colleagues were, in those circumstances, "financing" the labour dispute which caused the work stoppage, within the meaning of paragraph 44(2)(a) of the Unemployment Insurance Act, 1971 . This Court said that they were.
[33] On appeal, the Supreme Court of Canada divided 4:3 on the issue. L"Heureux-Dubé J., wrote for the majority. At page 537, after quoting with approval from the reasons of Wilson J in Abrahams, supra , she laid down the interpretative approach which should guide a Court when called upon to deal with problems arising under this class of legislation. This is what she wrote:
| Since the purpose of the Act is to make benefits available to the unemployed, a liberal interpretation of the re-entitlement provisions is warranted, given that the Act was not designed to deprive innocent victims of a labour dispute of the benefits of the Act and also given that employees do contribute to the unemployment insurance fund. |
| [Emphasis added.] |
[34] In reversing the judgment of this Court, she concluded at pages 559 to 560:
| In the case at bar, apart from the ordinary meaning of the words, the focus is on the individual claimant and the meaning of "financing" flows from the context of which the statute"s purpose is an integral element. While section 44 may be open to a broad interpretation of "financing", in my view, the purpose of the section (to disentitle strikers from benefits) as well as the purpose of the Act as a whole (to provide benefits to involuntarily unemployed persons) dictate that a narrow interpretation be given to the disentitlement provisions of that section. Any doubt, as Wilson J. pointed out in Abrahams, supra, should be resolved in favour of the claimant, particularly in the context described above . |
| [Emphasis added.] |
[35] Whether section 94.1 was promulgated pursuant to section 55 or 166 and 167 of the EI Act is not particularly relevant to this inquiry. What is important is that it is authorized by the EI Act. No issue of its vires was raised here. The critical issue, then, is whether the word "shall" in the section should be interpreted as mandatory or in some other way. During argument, we were told that a number of umpires had acceded to the Commission"s position and had interpreted it as mandatory. A few, including the Umpire whose decision is now under review, took a different view on the basis that the provision is part of a benefit-conferring scheme and should be construed liberally and generously, as Hills, supra has instructed. See for example the decision of W.J. Grant Q.C., Umpire, in re George Vanderberg, CUB43267.
[36] I have read most of those decisions; but, it seems to me that they all fail to recognize that, in the legislation, the word "shall" is not always to be interpreted as mandatory or imperative. Notwithstanding the provision in section 11 of the Interpretation Act32, there is authority that "shall" may be interpreted as directory, if the context so requires.33 In Anglo-Canadian jurisprudence, the leading authority is the judgment of the Judicial Committee of the Privy Council in Montreal Street Railway Co. v. Normandin34. In Canada, the Supreme Court of Canada applied Normandin in Reference re Manitoba Language Rights35, and in Attorney General of Canada v. Attorney General of British Columbia36. This Court, ( Marceau, Urie, and Mahoney, JJ..) adopted a similar approach in The Queen v. Bruce Harbour in interpreting paragraph 55(1)(4) of the Unemployment Insurance Act, 1971, now subsection 50(4) of the EI Act, which reads:
| (4) A claim for benefit for a week of unemployment in a benefit period shall be made within such time as is prescribed. |
| [Emphasis added.] |
There the Court allowed a late claim, filed outside the prescribed period.
[37] In Attorney General of Canada v. Attorney General of British Columbia, supra, Iacobucci J., writing for a majority of the Court commented on what he described as the doctrinal basis of the Normandin distinction as follows at pages 122 to 133:
| Is the word "shall" in s. 268(2) "mandatory" or "directory" in its effect? McLachlin J. proceeds to answer this question by first citing Montreal Street Railway Co. v. Normandin , ... , and with that traditional citation I have no quarrel. I prefer, however, to place the greater emphasis on what has become of Normandin in Canadian case law. |
| In particular, I think it is relevant to note that in Reference re Manitoba Language Rights, ... , this Court commented upon the doctrinal basis of the Normandin distinction. The Court stated (at p. 741): |
| The doctrinal basis of the mandatory/directory distinction is difficult to ascertain. The "serious general inconvenience or injustice" of which Sir Arthur Channell speaks in Montreal Street Railway Co. v. Normandin, supra , appears to lie at the root of the distinction as it is applied by the courts. |
| In other words, courts tend to ask, simply: would it be seriously inconvenient to regard the performance of some statutory direction as an imperative? |
| [Citations omitted.] |
[38] Both the Board and the Umpire saw the injustice of acceding to the submission of the Commission and in applying a mandatory construction of section 94.1 of the EI Regulations in disregard of undisputed evidence that the respondent had worked more than 910 hours in the period. The Board"s conclusion was animated by "common sense and natural justice"; and, the Umpire"s by the fact that he was called upon to construe social legislation. Although the reasons for decision of Board and the Umpire are not models of coherence, it is, nonetheless, my respectful view that each was right in deciding that the respondent had met the conditions precedent to qualifying for the receipt of benefits set out in subsection 7(3) of the EI Act . Accordingly, the Umpire committed no error of law in concluding that subsection 94.1 did not apply.
[39] The respondent"s employer informed the Commission that she had worked and was paid for 38 hours per week for 18 weeks in 1996 (684 hours) and 274 hours in 1997. On this evidence the respondent had obviously worked more than 910 hours to qualify for benefits as required by paragraph 7(2)(b) of the EI Act . The employer reported her work in 1996 and 1997 both in hours and in weeks. A generous interpretation of section 94.1 of the EI Regulations, consistent with the teaching of Hills, supra, would have suggested an interpretation in favour of the respondent. This is reinforced by recognition that the word "shall" as used in section 94.1 is directory only, and intended to assist the Commission in the discharge of its functions in those cases where the employer reports weeks of work only.
[40] I am fortified in my conclusion by reference to section 9.1 and subsection 10(1) of the EI Regulations which I repeat here for emphasis:
| 9.1 Where a person"s earnings are paid on an hourly basis, the person is considered to have worked in insurable employment for the number of hours that the person actually worked and for which the person was remunerated. |
9.1 Lorsque la rémunération d"une personne est versée sur une base horaire, la personne est considérée comme ayant exercé un emploi assurable pendant le nombre d"heures qu"elle a effectivement travaillées et pour lesquelles elle a été rétribuée. |
| 10.(1) Where a person"s earnings are not paid on an hourly basis but the employer provides evidence of the number of hours that the person actually worked in the period of employment and for which the person was remunerated, the person is deemed to have worked that number of hours in insurable employment . [Emphasis added.] |
10.(1) Lorsque la rémunération d"une personne est versée sur une base autre que l"heure et que l"employeur fournit la preuve du nombre d"heures effectivement travaillées par elle au cours de la période d"emploi et pour lesquelles elle a été rétribuée, celle-ci est réputée avoir travaillé ce nombre d"heures d"emploi assurable. |
[41] For all these reasons, I am of the view that the learned Umpire made no error of law and that this ground of the application must fail.
[42] I find it convenient to deal with the remaining issues together because they have a common factual base.
| Did the Umpire exceed his jurisdiction or refuse to exercise his jurisdiction when he dismissed the Commission"s appeal from the decision of the Board of Referees? Did the Umpire base his decision on an erroneous finding of fact that he made in perverse and capricious manner and without regard to the material before him when he dismissed the Commission"s appeal? |
[43] On the first issue, the applicant contends that the Umpire exceeded his jurisdiction by finding that the respondent had sufficient hours of insurable employment in both 1996 and 1997. In support of this contention he made the submission that the issue of the number of hours of insurable employment during which the respondent had worked was beyond the authority of the Umpire to decide, since the Minister had, pursuant to subsection 90(1) of the EI Act, decided that issue at the request of the Commission before the appeal to the Umpire was brought. Relying on two decisions of this Court, Attorney General of Canada v. Vautour37 and Canada (A.G.) v. Kaur38, he submitted that the opinion of the Minister had ousted the authority of the Umpire to decide that issue. By virtue of section 103 of the EI Act, so the argument ran, any appeal from the Minister"s decision must be taken to the Tax Court. In this case, the applicant argues, the respondent had the option of appealing the ruling of the Commission to the Minister and then to the Tax Court of Canada but she did not do so.
[44] I have had the privilege of reading, in draft, the reasons for judgment of Mr. Justice Sexton in this application. Regretfully, I am unable to agree either with his reasons or his decision to dismiss the application. My reasons follow.
[45] Mr. Justice Sexton has decided that not only the Umpire, but also the Board had no jurisdiction to decide whether the respondent did or did not have the requisite number of insurable hours to qualify for benefits. Paragraph 90(1)(d) of the EI Act, in his view, encompasses all questions involving the number of hours in insurable employment that Ms. Haberman had. Section 122 of the EI Act in turn means that the Department of National Revenue, not the Board or the Umpire, must determine any appeal from a determination of the Commission of the number of hours Ms. Haberman had in insurable employment.
[46] With great respect, I disagree with this conclusion because it confuses issues of insurability with those of entitlement to benefits.
[47] The interpretation which Mr. Justice Sexton places on subsection 90(1) of the EI Act is, in my respectful view, not maintainable. If he is right that section 122 of the EI Act encompasses all questions involving insurable hours, then the Commission itself would have no jurisdiction to determine the threshold issue of whether a claimant has satisfied the requirements of section 7 of the EI Act. For ease of reference, I reproduce the relevant parts of that section here:
| 7.(1) Unemployment benefits are payable as provided in this Part to an insured person who qualifies to receive them. |
7.(1) Les prestations de chômage sont payables, ainsi que le prévoit la présente partie, à un assuré qui emplit les conditions requises pour les recevoir. |
| (3) An insured person who is 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 910 or more hours of insurable employment in their qualifying period. |
(3) L"assuré qui est 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. |
In other words, on his interpretation, the Commission would be precluded from making any determination concerning insurable hours, and therefore whether a claimant is entitled to benefits under the EI Act. Section 122 does not mention either the Board or Umpire explicitly; therefore, it ousts jurisdiction of every body except the Department of National Revenue. This includes ousting the jurisdiction of the Commission.
[48] In my respectful view, the "questions" enumerated in section 90 should be interpreted in such a way as to leave room for the Commission, the Board and the Umpire to exercise the jurisdiction that Parliament intended them to have in relation to benefits. This can only be done if issues of insurabilty of employment, including the length of that employment, are left to the Department of National Revenue, and issues of entitlement to benefits are left to the Commission, the Board and the Umpire.
[49] It should be noticed that section 90 is found within Part IV of the EI Act which is headed "Insurable Earnings and Collection of Premiums." Section 122 is found in Part VI which is entitled "Administrative Provisions." Section 7, on the other hand, is found in Part I under the heading "Unemployment Benefits." This is one indication39 that the questions enumerated in section 90 should be interpreted to include only questions of insurability, and not questions of entitlement.
[50] This Court has already reached the same conclusion in previous cases dealing with the predecessors of sections 90 and 122, the cases upon which Sexton J.A. relies. All three of those cases involved issues of insurability, and were within the exclusive jurisdiction of the Minister; however, they also indicate that issues of entitlement are within the jurisdiction of the Commission, the Board and the Umpire.
[51] The first of those cases is Canada(Attorney General) v. Kaur.40 That case involved a determination by the Minister that the claimant was not actually paid any wages by her stated employer, and therefore she was not in "insurable employment" for the period of that employment. The claimant appealed that decision to the Board and Umpire. This Court decided, on judicial review, that the Board and Umpire lacked jurisdiction because the making of a ruling on insurability of income was within the exclusive jurisdiction of the Minister.
[52] The second is Canada (Attorney General) v. Vautour. In that case, Hugessen J.A., writing for the Court, stated that:
| We would add that in any event the question as to whether and for how long the claimant was in insurable employment is one which neither the Board of Referees nor the Umpire has power to decide (see sec. 61(3) of the Act).41 |
Again, the issue in that case was one of insurability, not of entitlement.
[53] Finally, in Valentine v. Canada (Attorney General)42, the Commission sought a determination from the Minister of National Revenue as to the insurability of the claimant"s income. The Minister ruled that the claimant"s employment was not insurable as the claimant was not performing services under a contract of service. The Commission therefore reconsidered the claimant"s claim for benefits and asked for some benefits already paid out to be repaid. The claimant appealed to the Board and Umpire. Mr. Justice Létourneau, writing for the Court, held that the Umpire did not have the jurisdiction to set aside a decision of the Minister, stating:
| I can understand the difficulty that the scheme of the Act poses to a self-represented litigant: insurability issues take one route, i.e., Revenue Canada and the Tax Court of Canada, and entitlements to benefits take another, i.e., the Commission, the Board of referees and the Umpire. . . . The authority of the Commission to seek an insurability ruling and the insurability ruling itself are issues that should have been appealed before the Tax Court but were not.43 |
[54] In this case, no question arises in 1996 about the length of insurable employment: it is 18 weeks at 38 hours per week. The issue in this case is not whether and for how long the claimant was in insurable employment, but whether 18 weeks at 38 hours a week in 1996, plus the 274 hours in 1997, was sufficient to create an entitlement to benefits. According to the jurisprudence of this Court, that is a question for the Commission, the Board and the Umpire.
[55] In my respectful view the Umpire did not have jurisdiction to make his first conclusion: that the employer over-counted the respondent"s doctors appointments and, if one used the respondent"s calculations, she had accumulated sufficient hours to qualify for benefits. The Umpire found that the employer deducted two hours every week for doctors appointments, but the respondent only spent one hour each Friday at her doctor"s office. Since the respondent was employed until 19 February 1997, she was employed for over six weeks in 1997. Adding one extra hour every Friday for six weeks raises the respondent"s hours worked for 1997 from 274 to 280. This in turn means that the respondent had a total of 910 hours of insurable employment, even using the s. 94.1 conversion formula favoured by the applicant. This is a question involving the actual number of insurable hours that the respondent worked, and therefore fits squarely within the meaning of s. 90(1)(d) of the EI Act . The Umpire did not have the jurisdiction to make a ruling that the respondent worked 280 hours in 1997 instead of the 274 hours as determined by the Minister. This conclusion is not fatal to the Umpire"s final disposition because it was not strictly necessary in order to reach the final result in this case.
[56] However, his conclusion that the Commission must count all 684 insurable hours in 1996, rather than apply section 94.1 of the EI Regulations, was within his jurisdiction. The issue is whether the respondent"s 18 weeks or 684 hours of employment in 1996, plus her 274 hours in 1997, were sufficient to create an entitlement to unemployment benefits. As an issue of entitlement, it fell squarely within the jurisdiction of the Commission, the Board and the Umpire.
[57] Even though it is not necessary for me to do so, I would like to comment on one further aspect of the applicant"s submissions. After the Board had rendered their decision, an officer of the Commission requested the opinion of the Minister on the number of hours the respondent had worked during 1997. For emphasis, I repeat the reason given for the request:
-Claimant disputes calculation of insurable hours
| -Board of Referees has exceeded their jurisdiction in ruling more hours than calculated |
| -Please comment on # of insurable hours (1997) |
There is nothing in the Board"s decision to indicate to me that they had focussed on 1997 to the exclusion of 1996. The evidence before them related to the years 1996 and 1997. In these circumstances, I find it difficult to understand why the opinion of the Minister would have been sought for 1997 alone.
[58] Further, the opinion of the Minister was sought after the Board had rendered its decision. The applicant then submitted the Minister"s opinion as new evidence in support of its position.44 The respondent testified before the Umpire without any objection, and the Umpire believed her evidence. It is baffling to me how the applicant, having offered the evidence of the opinion of the Minister as new evidence on the appeal, can now complain that the Umpire exceeded his jurisdiction in dealing with it as he saw fit.
Attorney General of Canada v. Hoek
[59] During argument, counsel for the applicant informed us that a similar issue had been argued before this Court, differently constituted, in Calgary, Alberta in Attorney General of Canada v. Hoek45, and that the decision had been reserved. We therefore reserved judgment in this appeal. Subsequently, the President of this panel made available to me a copy of the reasons in Hoek. I have read them and have noted that, in that case, the Court reached a different conclusion.
[60] More particularly, in paragraph 6 of those reasons, the Court applied the plain meaning rule and concluded that section 94.1 of the EI Regulations was "clearly mandatory". It is not clear from reading the reasons as a whole what arguments were advanced by counsel in support of their positions before that panel or what authorities were cited to assist the Court in that case. What is clear is that the reasons contain no reference to the interpretative approaches laid down in Abrahams and Hills, or in Normandin, supra. For those reasons, I do not consider that judicial comity requires me to follow this decision, see, Janssen Pharmaceutica Inc. v. Apotex Inc.46
CONCLUSION
[61] For all these reasons, I would dismiss the section 28 application with costs, affirm the decision of the Umpire and direct that the matter be remitted to the Commission for the proper disposition of the respondent"s claim in light of her entitlement to employment insurance benefits as articulated in these reasons.
"Julius A. Isaac"
J.A.
__________________2 SOR/96-332, as am. by SOR/97-31, s. 24.
5 Employment Insurance Regulations, supra at s. 94.
6 Employment Insurance Act, supra at s. 8.
7 Employment Insurance Act, S.C. 1996, c. 23, s. 7(3).
8 i.e. 18 weeks * 35 hours per week
9 [1996]_F.C.J. No. 1717 (C.A.).
10 (1994), 167 N.R. 98 (F.C.A.).
11 [2000] F.C.J. No. 619 (C.A.).
12 See R. v. Phillips, [1983]_2 S.C.R. 161 at 164 ("Jurisdiction cannot be conferred by consent.").
13 [2000] F.C.J. No. 622 (C.A.).
14 Paragraph 18.1(3)(a) of the Federal Court Act, R.S.C. 1985, c. F-7, permits this Court to "order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do [...]."
16 Applicant"s Application Record, p. 54.
17 Applicant"s Application Record, p. 43.
22 (1994) 174 N.R. 28 at pp. 31-32.
23 [1998] 1 S.C.R. 982 at 1004.
25 [1993] 2 S.C.R. 230 at 263.
27 1996 Office Consolidation of the Employment Insurance Act and Other Related Legislation at pp. 1a-2a.
28 R. Sullivan, Dreidger on the Interpretation of Statutes, 3rd ed., (Toronto, Butterworths, 1994) at 376.
32 Interpretation Act, R.S.C. 198, c. I-21.
33 Dreidger, op. cit. pp. 86-88.
34 [1917] 33 D.L.R. 195 (P.C).
37 (9 December 1996), unreported, A-733-95, [1996] F.C.J. (Fed. C.A.).
38 (1994), 167 N.R. 98 (F.C.A.).
39 See R. Sullivan, Dreidger on the Construction of Statutes , 3rd ed. (Toronto: Butterworths, 1994).
40 [1994] F.C.J. No. 228 (C.A.), online: QL (FCJ).
41 [1996] F.C.J. No. 1717 (C.A.), online: QL (FCJ).
42 [2000] F.C.J. No. 619 (C.A.), online: QL (FCJ).
44 Affidavit of Ellen Vance, Applicant"s Application Record, p. 15.