A-51-97
MONTRÉAL, QUEBEC, THE 18TH DAY OF SEPTEMBER, 1997
| CORAM: THE HONOURABLE MR. JUSTICE MARCEAU |
| THE HONOURABLE MR. JUSTICE MacGUIGAN |
| THE HONOURABLE MADAM JUSTICE DESJARDINS |
| BETWEEN: SIMONE GIRARD |
Applicant
| AND: |
| THE CANADA EMPLOYMENT AND IMMIGRATION COMMISSION |
Respondent
| AND: |
| THE DEPUTY ATTORNEY GENERAL OF CANADA |
Mis en cause
J U D G M E N T
The application for judicial review is dismissed.
| Louis Marceau |
| J.A. |
Certified true translation
Christiane Delon
A-51-97
| CORAM: THE HONOURABLE MR. JUSTICE MARCEAU |
| THE HONOURABLE MR. JUSTICE MacGUIGAN |
| THE HONOURABLE MADAM JUSTICE DESJARDINS |
| BETWEEN: |
SIMONE GIRARD
Applicant
- and -
THE CANADA EMPLOYMENT AND IMMIGRATION COMMISSION
Respondent
- and -
THE DEPUTY ATTORNEY GENERAL OF CANADA
Mis en cause
Hearing held in Montréal, Quebec, Thursday, September 18, 1997.
Judgment rendered at the hearing, Thursday, September 18, 1997.
REASONS FOR JUDGMENT OF THE COURT BY: MARCEAU J.A.
A-51-97
| CORAM: THE HONOURABLE MR. JUSTICE MARCEAU |
| THE HONOURABLE MR. JUSTICE MacGUIGAN |
| THE HONOURABLE MADAM JUSTICE DESJARDINS |
| BETWEEN: |
SIMONE GIRARD
Applicant
- and -
THE CANADA EMPLOYMENT AND IMMIGRATION COMMISSION
Respondent
- and -
THE DEPUTY ATTORNEY GENERAL OF CANADA
Mis en cause
REASONS FOR JUDGMENT OF THE COURT
(Pronounced at the hearing in Montréal, Quebec,
Thursday, September 18, 1997)
MARCEAU J.A.
This is one of two applications for judicial review of the same decision by an umpire, rendered under the aegis of the Unemployment Insurance Act on October 8, 1996. There are, in fact, two more or less interrelated aspects to the decision which resulted in findings, one in opposition to the claims of one party, the other to the claim of the other party, and each party thought it necessary to challenge the decision in regard to that part opposed to its interests.
The aspect at issue here is the one in which the umpire stated her agreement with the Commission"s determination, a determination upheld by the Board of Referees, that a sum received by the applicant-claimant after her lay-off constituted earnings from her employment, which should have been allocated in accordance with subsection 58(9) of the Unemployment Insurance Regulations , and not subsections 58(4) or (18).
This sum had been paid to the applicant under an extension of income plan in effect with her employer, General Electric Canada Inc. Under the plan, which was a part of the collective agreement, a laid-off employee would be paid a certain amount if, at the end of a year, he had not yet returned to work and subsequently remained on the recall list for two additional years.
We are all of the opinion that the umpire was fully justified in upholding the correctness of the Commission"s determination. It matters little that this "extension of income plan" can be interpreted to mean that the definitive loss of the employment relationship between the employer and employee occurs only three years after the lay-off. It is clear that whatever the interpretation of the governing concept at the time this "agreement" was adopted, it does not alter the unequivocal particulars of subsection (9) of section 58, the section which comprehensively and authoritatively determines the mode of allocation of the sums received by a claimant as earnings. Whether the sum was not payable for a year or the claimant had to give notices of his or her availability does not alter the fact that it is the lay-off that triggered the application of the clause in the collective agreement and gave rise to this conditional but pre-existing obligation to pay, which now accrued to the benefit of the claimant.1
The application can only be dismissed, therefore.
| Louis Marceau |
| J.A. |
Certified true translation
Christiane Delon
FEDERAL COURT OF APPEAL
A-51-97
| BETWEEN: |
SIMONE GIRARD
Applicant
- and -
THE CANADA EMPLOYMENT AND IMMIGRATION COMMISSION
Respondent
- and -
THE DEPUTY ATTORNEY GENERAL OF CANADA
Mis en cause
REASONS FOR JUDGMENT
OF THE COURT
| FEDERAL COURT OF CANADA |
| APPEAL DIVISION |
| NAMES OF COUNSEL AND SOLICITORS OF RECORD |
| FILE NO:A-51-97 |
| STYLE:Simone Girard v. Canada Employment and Immigration Commission |
| PLACE OF HEARING:Montréal, Quebec |
| DATE OF HEARING:September 18, 1997 |
| REASONS FOR JUDGMENT OF THE COURT: (Marceau, MacGuigan & Desjardins, JJ.A.) |
| RENDERED AT THE HEARING BY: Marceau, J.A. |
| APPEARANCES: |
| William de MerchantFOR THE APPLICANT |
| Paul DesjardinsFOR THE RESPONDENT AND |
| THE MIS EN CAUSE |
| SOLICITORS OF RECORD: |
| Campeau, Ouellet, Nadon, Cyr, Rainville, |
| de Merchant, Bernstein, Cousineau |
| Montréal, QuebecFOR THE APPLICANT |
| George Thomson |
| Deputy Attorney General of Canada |
| Ottawa, OntarioFOR THE RESPONDENT |
1 Cf. Canada (Attorney General) v. Savarie (1996), 205 N.R. 302 (F.C.A.).