BETWEEN:
and
Heard at Vancouver, British Columbia, on March 8, 2007.
Judgment delivered from the Bench at Vancouver, British Columbia, on March 8, 2007.
REASONS FOR JUDGMENT OF THE COURT BY: SEXTON J.A.
Docket: A-362-06
Citation: 2007 FCA 104
CORAM: DÉCARY J.A.
NOËL J.A.
SEXTON J.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
and
ALEXANDER HAMILTON
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Vancouver, British Columbia, on March 8, 2007)
[1] The Respondent was dismissed from his employment as an accountant. He was paid $3500 in lieu of notice.
[2] Subsequently he entered into a Settlement Agreement with the employer in which it was stated that the employer agreed to pay him $27,500 “in full and complete settlement of any and all obligations or claims of any kind or nature whatsoever which may be due or owed” by the employer “including claims for wrongful dismissal.”
[3] The Agreement states in part in the preamble:
C. KRL has terminated the employment of Hamilton and Logan has terminated the services of Hamilton; and
D. Hamilton believing he was wrongfully dismissed, and that he has grounds for a claim of wrongful dismissal, the Companies wish to enter into this Settlement Agreement in order to satisfy the wrongful dismissal claim and settle all or any outstanding matters between then and Hamilton.
13. . . .
The agreement states in its body:
4. KRL and Logan agree to pay, and Hamilton agrees to accept in full and complete settlement of any and all obligations or claims of any kind or nature whatsoever which may be due or owed by KRL and/or Logan to Hamilton, including claims for damages for wrongful dismissal, the sum of . . .$27,500.
5. Hamilton hereby acknowledges that he will not file a complaint, information or claim of any kind with the Employment Standards Branch, the TSX Venture Exchange, any provincial securities commission in Canada, or any other regulatory authority having jurisdiction over the Companies or Individuals in connection with this matter, or in connection with the affairs of KRL and Logan in general, or the conduct of the directors and/or of KRL and Logan.
[4] The Commission, pursuant to the Employment Insurance Regulations took the position that all of the amounts paid by the employer should be considered as earnings.
[5] The Board of Referees held that the settlement funds of $27,500 were not earnings as they were payment for “not filing a complaint.”
[6] The Umpire reduced the $27,500 to $25,000 as being the sum which should not be considered as earnings.
[7] The basis given by the Umpire for this decision was that the employer was motivated to dismiss the Respondent because he had uncovered some wrongdoing within the Company and that the greater part of the settlement amount must be considered as having been paid for consideration other than loss of income.
[8] The Applicant argues that the Umpire erred in not finding that the entire amount of settlement funds constituted earnings under Section 35 of the Employment Insurance Regulations.
[9] Specifically, the Applicant argues there is a legal presumption that any monies received by the employee were earnings. However, such presumptions can be rebutted by other evidence. There was other evidence in this case in the terms of the Settlement Agreement. It specifically refers to the Respondent’ promise not to file a complaint with a number of regulatory bodies. Obviously the employer was sufficiently concerned about this to put it in the Settlement Agreement.
[10] One can only conclude, therefore, that some part of the settlement funds represented a payment in order to obtain the Respondent’s promise not to report the employer to the authorities.
[11] While the Umpire heard further evidence on this point at the hearing, it was not necessary to his decision. One can glean from the Settlement agreement itself that the employer was willing to pay for the Respondent’s promise not to report. Hence the Applicant’s argument that the Umpire wrongfully accepted new evidence does not really advance the Applicant’s position.
[12] The Applicant argues that the allocation by the Umpire was wrong because it was arbitrary and lacked evidence to support it. However the Umpire reasoned that the employer was motivated to pay the respondent because he had uncovered some wrongdoing within the company which the company did not want to be disclosed. Thus the Umpire was able to conclude that the greater part of the settlement was for consideration other than wrongful dismissal.
[13] It also must be remembered that Respondent had only been employed with the company for approximately 34 months so that one would not expect the amount for lost earnings to be large.
[14] We are unable to say that the Umpire committed any reviewable error.
[15] The Application will be dismissed. The Respondent will be entitled to his disbursements in connection with this Application fixed at $200.
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A-362-06
STYLE OF CAUSE: ATTORNEY GENERAL OF CANADA v.
ALEXANDER HAMILTON
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: March 8, 2007
REASONS FOR JUDGMENT BY: DÉCARY J.A.
NOËL J.A.
SEXTON J.A.
DELIVERED FROM THE BENCH: SEXTON J.A.
DATED: March 8, 2007
APPEARANCES:
Ward Bansley FOR THE APPLICANT
Alexander Hamilton ON HIS OWN BEHALF
SOLICITORS OF RECORD:
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John H. Sims, Q.C. Deputy Attorney General of Canada |
FOR THE APPLICANT |
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