Date: 20000510
Docket: A-89-99
CORAM: DÉCARY J.A.
ROTHSTEIN J.A.
SHARLOW J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
- and -
PAUL HOEK
Respondent
Heard at Calgary (Alberta) on Friday, May 5, 2000.
Judgment delivered at Ottawa (Ontario) on Wednesday, May 10, 2000.
REASONS FOR JUDGMENT BY: DÉCARY J.A.
CONCURRED IN BY: ROTHSTEIN J.A.
SHARLOW J.A
Date: 20000510
Docket: A-89-99
CORAM: DÉCARY J.A.
ROTHSTEIN J.A.
SHARLOW J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
- and -
PAUL HOEK
Respondent
REASONS FOR JUDGMENT
DÉCARY J.A.
[1] When the Employment Insurance Act1 ("the Act") replaced the Unemployment Insurance Act2, transitional measures were taken to provide a bridge between the old regime and the new regime. Most of the new Act came into force on June 30, 1996, but very important provisions came into force only on January 1, 1997 or on January 5, 1997. This application for judicial review deals with the transitional measures taken to ensure the transition from the concept of weeks of insurable employment to that of hours.
[2] Under the former statute a worker"s eligibility for unemployment insurance benefits was determined by reference to that worker"s insurable employment in terms of weeks worked. Under the new Act, a worker"s eligibility for employment insurance benefits is determined by reference to that worker"s insurable employment in terms of hours worked. Section 7 of the Act sets out the principle and section 55 gives the Canada Employment Insurance Commission ("the Commission") the power to make regulations "for establishing how many hours of insurable employment a person has". By virtue of paragraphs 190(3)(b ) and (k), sections 7 and 55 only came into force on January 5, 1997.
[3] Section 167 of the Act gave the Commission the power to 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 [...] |
[...] prévoyant toute autre mesure transitoire, notamment :
| a) la transition de l'utilisation des semaines d'emploi assurable à celle des heures d'emploi assurable [...] |
[4] On June 30, 1996, the Employment Insurance Regulations3 ("the Regulations") came into force. Of relevance, here, are sections 19 and 20 which require an employer to submit a record of employment by reference to hours worked, in contrast with the reference, under the former regime, to weeks worked. These sections came into force on January 1, 1997.
[5] On December 19, 1996, but effective as of January 1, 1997, the Regulations were amended4. Of particular significance in the case at bar is section 94.1, which reads:
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.
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.
[6] A plain reading of the transitional scheme cannot but lead to one conclusion: for the purpose of determining on or after January 5, 1997 the entitlement to employment insurance benefits, weeks of insurable employment that were worked prior to January 1, 1997 are converted into hours of insurable employment and this conversion is made on the basis of 35 hours per week worked. Section 94.1 of the Regulations is clearly mandatory. The Commission chose the 35-hour rule as it was entitled to under section 167 of the Act and that choice cannot be questioned before us. This plain interpretation of the scheme has already been adopted by various umpires acting pursuant to the Act5.
[7] Umpire Grant, in the case at bar6, agreed that such was the law, but he nevertheless declined to apply it. The Umpire"s decision is defended ingeniously by Mr. Jenuth, counsel for the claimant, who argued that section 94.1 of the Regulations did not apply in the instant case because the claimant had presented evidence, not of weeks worked prior to January 1, 1997, but of hours worked in each week prior to January 1, 1997. In counsel"s view, section 94.1 does not limit the amount of hours worked prior to January 1, 1997, nor does it provide a maximum. Counsel argues that section 94.1 merely states the translation factor to be used where a claimant presents evidence of weeks worked rather than of actual hours worked.
[8] In the present case, counsel goes on, it was not necessary that the claimant avail himself of the provisions of section 94.1 because he had submitted actual proof of a total of 793.2 hours worked through 15 weeks of employment in 1996. Counsel argues, therefore, that instead of the 525 hours (15 weeks multiplied by 35 hours) recognized by the Commission, the claimant should have been credited with 793.2 hours, enough in the circumstances to qualify him for employment insurance benefits.
[9] Counsel"s proposed interpretation results from a misunderstanding of the transitional scheme. Prior to January 5, 1997, a claimant"s entitlement could only be determined on the basis of the number of weeks worked. That was the law then, and the new Act has not been made retroactive. Section 167 gave the Commission the authority to enact regulations to reconcile the old and the new regimes in providing for the conversion from weeks worked to hours worked. The mechanism of conversion was set out for the benefit of all claimants who would not otherwise have known if, and if so, on what basis they could be credited with any work done prior to January 1, 1997. Section 94.1 of the Regulations is a provision of substance, not of procedure. It defines how the rights accrued on a weekly basis under the old regime will be preserved on an hourly basis under the new regime. It is a provision that applies automatically whenever a worker seeks to be credited for work done prior to January 1, 1997. It is not a provision which a claimant may choose to invoke or not to invoke. Procedural and evidentiary provisions, on the other hand, are found in section 50 of the Act.
[10] The claimant in the case at bar had no vested rights resulting from his 793.2 hours of work in 1996; his vested rights resulted from his 15 weeks of work. With respect to a period during which the new regime was not yet in place, there is no unfairness in the fact that the new regime does not recognize the number of hours worked any more than did the regime which applied during that period.
[11] The application for judicial review will be allowed, the decision of the Umpire will be set aside and the matter will be referred back to the Chief Umpire or to a person designated by him for reconsideration on the basis that claimant"s appeal should be dismissed.
"Robert Décary"
J.A.
"I agree.
Marshall Rothstein J.A."
"I agree.
Karen R. Sharlow J.A."
__________________4Regulations Amending the Employment Regulations, SOR/97-31.
5See, for example, CUB 41366 (In re Maurice Nault), Umpire Barbès; CUB 41942 (In re Ben Martin), Umpire Noël; CUB 40971 (In re Lisa Vanhooydonk), Umpire Murdoch; CUB 42720 (In re Sandra MacLeod), Umpire Forget; and CUB 40966 (In re Kyle Harrison), Umpire Murdoch.