BETWEEN:
and
Heard at Fredericton, New Brunswick, on May 17, 2006.
Judgment delivered from the Bench at Fredericton, New Brunswick, on May 17, 2006.
REASONS FOR JUDGMENT OF THE COURT BY: Pelletier J.A.
Date: 20060517
Docket: A-299-05
Citation: 2006 FCA 184
CORAM: RICHARD C.J.
NADON J.A.
PELLETIER J.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
and
PETER J. LANDRY
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Fredericton, New Brunswick, on May 17, 2006)
[1] In 2000, St. John Shipbuilding closed its doors. Its employees, represented by four unions, were permanently laid off. After two years, the employer applied to the New Brunswick Labour and Employment Board for an order terminating the union’s bargaining rights.
[2] The Board granted the order but suspended its effect until the employer and the unions reached agreement on a closure pay plan.
[3] A closure pay plan was in fact implemented and each of the four applicants received an amount from that plan.
[4] The Commission took the position that the amounts received were income for the purpose of the Employment Insurance Act S.C. 1996 c. 23 and that pursuant to s. 36 of the Regulations, it was to be allocated from the date of separation, as identified by the Commission.
[5] The applicants challenged the Commission’s position before the Board of Referees which held that the amounts received were not income. As a result, it did not go on to consider the question of allocation. The Commission appealed to the Umpire who reversed the Board of Referees and held that the amounts in question were income from employment for the purposes of the Act. However, the Umpire went on to find that the amounts were to be allocated from the date of lay-off and not from the date of separation as identified by the Commission.
[6] The Commission challenges this finding by way of an application for judicial review before this Court. It argues that since there were vestigial elements of the employment relationship in existence until the date of the decertification order, separation did not occur until that date. The Commission argues that where there is a difference between the date of lay-off and the date of separation, it is entitled to allocate amounts received as of the later date.
[7] We all agreed that the application for judicial review must be dismissed. The trigger for eligibility for benefits is a cessation of work and an interruption of earnings, as set in section 7 of the Act. Since allocation is relevant to the calculation of the amount of benefits payable and the commencement of the benefit period, it is logical that it should coincide with the date of eligibility. Whether the events which give rise to eligibility occurs as a result of lay-off or separation appears to us to be immaterial. The relevant date is the date of eligibility.
[8] For those reasons we are of the view that the Umpire’s decision was not only reasonable, but correct.
[9] We would therefore dismiss the four applications for judicial review, without costs in the cases of Mr. Burns and Mr. Landry and with one set of costs in the cases of Mr. Walsh and Mr. McKee.
[10] A copy of these reasons will be placed in each of files numbered A-300-05, A-250-05, A-301-05 and A-299-05.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-299-05
STYLE OF CAUSE: Attorney General of Canada and Peter J. Landry
PLACE OF HEARING: Fredericton, New Brunswick
REASONS FOR JUDGMENT OF THE COURT BY: Pelletier J.A.
DELIVERED FROM THE BENCH BY: Pelletier J.A.
APPEARANCES:
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FOR THE APPLICANT
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FOR THE RESPONDENT
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SOLICITORS OF RECORD:
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Department of Justice Halifax, Nova Scotia
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FOR THE APPLICANT
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FOR THE RESPONDENT
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