Docket: A-337-05
BETWEEN:
and
Hearing held at Montréal, Quebec, on December 13, 2005.
Judgment delivered from the bench at Montréal, Quebec, on December 13, 2005.
REASONS FOR JUDGMENT OF THE COURT: LÉTOURNEAU J.A.
Docket: A-337-05
Citation: 2005 FCA 433
CORAM: LÉTOURNEAU J.A.
NADON J.A.
PELLETIER J.A.
BETWEEN:
ANDRÉ LEMAY
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT OFTHECOURT
(Delivered from the bench at Montréal, Quebec, on December 13, 2005)
[1] In our opinion, this application for judicial review must be dismissed.
[2] The umpire was correct to intervene to rectify as a matter of law the board of referees' mischaracterization of the severance payment made to the applicant. The board of referees erred in law by proceeding, in accordance with subsection 36(4) of the Employment Insurance Regulations, SOR/96-332 (Regulations), to an allocation of the amount paid. In fact, it disregarded the quite clear terms of subsection 36(9) of the Regulations stating that it is regardless of the nature of the earnings or the period in respect of which the earnings are purported to be paid or payable:
| (9) Subject to subsections (10) and (11), all earnings paid or payable to a claimant by reason of a lay-off or separation from an employment shall, regardless of the nature of the earnings or the period in respect of which the earnings are purported to be paid or payable, be allocated to a number of weeks that begins with the week of the lay-off or separation in such a manner that the total earnings of the claimant from that employment are, in each consecutive week except the last, equal to the claimant's normal weekly earnings from that employment. |
(9) Sous réserve des paragraphes (10) et (11), toute rémunération payée ou payable au prestataire en raison de son licenciement ou de la cessation de son emploi est, abstraction faite de la nature de la rémunération et de la période pour laquelle elle est présentée comme étant payée ou payable, répartie sur un nombre de semaines qui commence par la semaine du licenciement ou de la cessation d'emploi, de sorte que la rémunération totale tirée par lui de cet emploi dans chaque semaine consécutive, sauf la dernière, soit égale à sa rémunération hebdomadaire normale provenant de cet emploi. |
[3] Indeed, there is no doubt that, according to the terms of the agreement between the employer and the union, the payment made to the applicant was severance pay for separation from an employment, payable [TRANSLATION] "after operations ceased": see the agreement, applicant's record, pages 63 to 66.
[4] In Canada (Attorney General) v. Savarie (1996), 205 N.R. 302, leave to appeal to the Supreme Court of Canada denied (1997), 214 N.R. 158, Marceau J.A. defined the circumstances where a payment is a payment paid by reason of a separation from employment pursuant to what is today section 36(9) of the Regulations:
In my opinion, a payment is made "by reason of" the separation from employment within the meaning of this provision when it becomes due and payable at the time of termination of employment, when it is, so to speak, "triggered" by the expiration of the period of employment, when the obligation it is intended to fulfil was simply a potentiality throughout the duration of the employment, designed to crystallize, becoming liquid and payable, when, and only when, the employment ended. The idea is to cover any part of the earnings that becomes due and payable at the time of termination of the contract of employment and the commencement of unemployment.
[5] In this case, the payment made meets the requirements and conditions stated by Marceau J.A. The applicant's counsel concentrated at length on Attorney General of Canada v. Bielich, 2005 FCA 363, to argue that evidence was admissible to explain the terms of a written agreement. We are not persuaded that this is what was decided in that decision. In any event, we are satisfied that it does not apply in this case, where the terms of the agreement are clear and self-explanatory.
[6] The application for judicial review shall be dismissed with costs.
Certified true translation
Kelley A. Harvey, BCL, LLB
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A-337-05
STYLE OF CAUSE: ANDRÉ LEMAY
and
ATTORNEY GENERAL
OF CANADA
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: December 13, 2005
REASONS FOR JUDGMENT OF THE COURT: LÉTOURNEAU J.A.
NADON J.A.
PELLETIER J.A.
DELIVERED FROM THE BENCH BY: LÉTOURNEAU J.A.
APPEARANCES:
| FOR THE APPLICANT
|
|
| FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
|
Montréal, Quebec
|
FOR THE APPLICANT
|
|
Deputy Attorney General of Canada Montréal, Quebec |
FOR THE RESPONDENT
|
Date: 20051213
Docket: A-337-05
Montréal, Quebec, December 13, 2005
CORAM: LÉTOURNEAU J.A.
NADON J.A.
PELLETIER J.A.
BETWEEN:
ANDRÉ LEMAY
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
JUDGMENT
The application for judicial review is dismissed with costs.
"Gilles Létourneau"
J.A.
Certified true translation
Kelley A. Harvey, BCL, LLB