[OFFICIAL ENGLISH TRANSLATION]
2000-1101(EI)
BETWEEN:
NATIONAL BANK OF CANADA,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Appeal heard on June 29, 2001, at Montréal, Quebec, by
the Honourable Judge Lucie Lamarre
Appearances
Counsel for the appellant: Marie-Hélène Jetté
Counsel for the respondent: Anne Poirier
JUDGMENT
The appeal under subsection 103(1) of the Employment Insurance Act ("Act") is allowed, and the decision rendered by the Minister of National Revenue under subsection 93(3) of the Act is varied on the basis that the remuneration received by Lise Messier-Lafleur from Financière Manuvie during the period from November 28, 1997, to November 28, 1998, totalling the sum of $16,677, did not constitute insurable earnings within the meaning of subsection 2(1) of the Act and sections 1 and 2 of the Insurable Earnings and Collection of Premiums Regulations.
Signed at Ottawa, Canada, this 21st day of February 2002.
|
Lucie Lamarre |
J.T.C.C.
Translation certified true
on this 17th day of March 2003.
Sophie Debbané, Revisor
[OFFICIAL ENGLISH TRANSLATION]
Date: 20020221
Docket: 2000-1101(EI)
BETWEEN:
NATIONAL BANK OF CANADA,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
REASONS FOR JUDGMENT
Lamarre, J.T.C.C.
[1] This is an appeal from a decision by the Minister of National Revenue ("Minister") made under the Employment Insurance Act ("Act") by which it was determined that Lise Messier-Lafleur had received insurable earnings totalling $16,677 while in the service of the appellant during the period from November 28, 1997, to November 28, 1998.
[2] According to the appellant, the aforementioned sum does not constitute insurable earnings within the meaning of subsection 2(1) of the Act and of paragraph 2(1)(a) of the Insurable Earnings and Collection of Premiums Regulations ("Regulations"). The relevant provisions of the Act and Regulations read as follows:
Employment Insurance Act
2. (1) In this Act,
"employer" includes a person who has been an employer and, in respect of remuneration of an individual referred to as sponsor or co-ordinator of a project in paragraph 5(1)(e), it includes that individual;
"insurable earnings" means the total amount of the earnings, as determined in accordance with Part IV, [Insurable Earnings and Collection of Premiums] that an insured person has from insurable employment;
Insurable Earnings and Collection
of Premiums Regulations
INTERPRETATION
1. (1) The definitions in this subsection apply in these Regulations.
...
(2) For the purposes of Part IV of the Act and for the purposes of these Regulations, "employer" includes a person who pays or has paid earnings of an insured person for services performed in insurable employment.
PART I
INSURABLE EARNINGS
Earnings from Insurable Employment
2. (1) For the purposes of the definition "insurable earnings" in subsection 2(1) of the Act and for the purposes of these Regulations, the total amount of earnings that an insured person has from insurable employment is
(a) the total of all amounts, whether wholly or partly pecuniary, received or enjoyed by the insured person that are paid to the person by the person's employer in respect of that employment, and
...
(3) For the purposes of subsections (1) and (2), "earnings" does not include
(a) the value of board, lodging and all other benefits received or enjoyed by a person in a pay period in respect of the employment if no cash remuneration is paid to the person by the person's employer in respect of the pay period;
(a.1) any amount excluded as income under paragraph 6(1)(a) or (b) or subsection 6(6) or (16) of the Income Tax Act;
(b) a retiring allowance;
(c) a supplement paid to a person by the person's employer to increase worker's compensation paid to the person by a provincial authority;
(d) a supplement paid to a person by the person's employer to increase a wage loss indemnity payment made to the person by a party other than the employer under a wage loss indemnity plan;
(e) a supplemental unemployment benefit payment made under a supplemental unemployment benefit plan as described in subsection 37(2) of the Employment Insurance Regulations; and
(f) a payment made to a person by the person's employer to cover the waiting period referred to in section 13 of the Act, or to increase the pregnancy or parental benefits payable to the person under section 22 or 23 of the Act if the payment meets the criteria set out in section 38 of the Employment Insurance Regulations.
Facts
[3] The facts admitted by the parties read as follows:
[TRANSLATION]
Ms. Messier-Lafleur was employed by the [National Bank of Canada] NBC from June 11, 1992, to September 3, 1999, as a customer service officer;
Based on her regular schedule, Ms. Messier-Lafleur held a permanent part-time position working approximately 20 hours a week;
However, during the period from December 1995 to September 1966 [sic], Ms. Messier-Lafleur was on a temporary assignment working 37½ hours a week;
During that period, Ms. Messier-Lafleur continued to be an employee with regular part-time status, but she worked a number of hours equivalent to the hours of regular full-time employees;
Although Ms. Messier-Lafleur's temporary assignment was to continue until September 1996, she had to stop working in May 1996 because of heart failure;
In view of her inability to perform her work, Ms. Messier-Lafleur was eligible for a weekly disability pension, the whole in accordance with the short-term disability plan, which NBC offers its employees;
After 26 weeks of disability, Ms. Messier-Lafleur became eligible for a disability pension for a period of 24 months if she was unable to perform her work;
Beyond the first 30 months of disability, she had to be unable to perform any work to be entitled to a pension until the age of 65;
Thus, at the start of her disability, Ms. Messier-Lafleur filed a claim for benefit with Financière;
Ms. Messier-Lafleur's application for disability compensation was processed in accordance with the application processing procedure provided for in the plan;
For the first 6 months of her absence, Ms. Messier-Lafleur received weekly compensation from Financière under the disability plan;
After that period, Ms. Messier-Lafleur applied for benefits under the long-term disability plan;
Thus, from May 1996 to November 1998, Ms. Messier-Lafleur received short- and long-term disability benefits for approximately 30 months;
Thus, for the period in issue, that is from November 28, 1997, to November 28, 1998, Ms. Messier-Lafleur received a disability pension of $1,389.74 per month paid directly by Financière;
In accordance with the plan, the pension was calculated using the reference salary of the short-term benefit annualized and divided by 12;
The last 6 months of Ms. Messier-Lafleur's active work were in fact performed under a full-time temporary assignment, even though she was a part-time employee;
Under the plan, Ms. Messier-Lafleur was entitled to 75% of the amount thus obtained for the period from December 1996 to November 1998;
The average number of hours for that 26-week period prior to the disability was 36.2 hours per week;
Ms. Messier-Lafleur's wage was $11.81 an hour;
The wage of $11.81 multiplied by 36.2 hours multiplied by 52 weeks, divided by 12 months equals an average monthly salary of $1,852.60;
Under the long-term disability plan, Ms. Messier-Lafleur was entitled to a monthly benefit of 75% of that amount, that is $1,389.45, which is almost exactly the benefit she received from Financière;
During the period in issue, Ms. Messier-Lafleur worked 294 hours at NBC under an occupational rehabilitation program agreed upon between Ms. Messier-Lafleur, her physician and Financière;
The plan specifically provides for occupational rehabilitation, which is then considered a rehabilitation activity deemed salutary for the member;
Thus, under that occupational rehabilitation program, Ms. Messier-Lafleur worked 294 hours between November 28, 1997, and November 28, 1998;
Ms. Messier-Lafleur did not receive a salary for those hours from NBC;
As a result of a decision by Financière in which NBC did not participate, benefits ceased on November 28, 1998, after 30 months of disability, because Financière considered that, although Ms. Messier-Lafleur was unable to perform her work, she was nevertheless able to hold employment;
As a result of this decision by Financière, Ms. Messier-Lafleur did not resume working at NBC, but nevertheless remained an employee of NBC until September 1999, when she was dismissed for administrative reasons, as a result of a lack of work corresponding to her limitations;
It appears from the file that, as a result of Financière's decision to stop paying Ms. Messier-Lafleur disability benefits, she filed an employment insurance application with Human Resources Development Canada (hereinafter "HRDC") on November 28, 1998;
HRDC applied to Revenue Canada for a decision concerning the insurability of Ms. Messier-Lafleur's employment during the period from November 28, 1997, to November 28, 1998;
By a decision dated March 4, 1999, the Tax Services Office of Revenue Canada concluded that Lise Messier-Lafleur had held insurable employment within the meaning of subsection 5(1) of the Employment Insurance Act during the period from November 28, 1997, to November 28, 1998, and that her insurable earnings for the last 7 months of the period in issue were $9,728.18, the whole as appears from that decision, Exhibit A-1;
On June 1, 1999, NBC asked the Appeals Division to review that decision. The reasons in support of that application for review are stated in a letter dated November 15, 1999, to Jean-Pierre Houle of the Appeals Division, filed jointly, Exhibit A-2;
On December 8, 1999, the Appeals Division of Revenue Canada rejected NBC's application for review on the ground that insurable earnings for the purposes of Ms. Messier-Lafleur's employment insurance for the period from November 28, 1997, to November 28, 1998, were $16,677, Exhibit A-3;
[4] In addition to the aforementioned facts, the appellant called as a witness Rémi St-Germain, a standards and services specialist with Financière Manuvie ("Financière") and Claude Plante, an analyst with the social benefits service at the National Bank of Canada, to explain the insurance plans enjoyed by the appellant's employees. The respondent had Lise Messier-Lafleur testify briefly as to her ability to work when she returned to the job on occupational rehabilitation recommended by Financière during the period in issue.
[5] Mr. St-Germain explained that the appellant's employees were covered by an insurance plan designed to provide wage replacement or compensation for financial losses to employees who are suffering from a temporary or permanent total disability. The appellant opted for an "administrative services only" or ASO (in French, "services administratifs seulement") plan with Financière. An ASO contract is defined in the presentation of the plan in effect between the appellant and Financière as follows (Exhibits A-4 and A-5, at page 4):
[TRANSLATION]
ASO contract: contract entered into between the employer and Financière Manuvie under which Financière Manuvie represents the employer and agrees to provide it with certain administrative services relating to the plan, although this arrangement does not release the employer from its obligations.
[6] Mr. St-Germain explained that, in an ASO insurance plan, the employer funds the entire plan (without a contribution from the employee) and alone bears the cost of benefits to disabled employees. Thus, under this type of plan, the employer retains the administrative services of an administrator (in this case, Financière), which is remunerated for the administrative services it renders in the form of commissions estimated on the basis of the anticipated impact of claims and on the number of employees. The services consist in administering the benefit claims received from employees who cease working because of disability. This kind of plan differs from a regular insurance plan, in which the insurer charges the employer a schedule of rates for insurance coverage for employees based on their age or other criteria generally used for an insured group.
[7] Mr. St-Germain testified that an ASO plan offers the benefit of ensuring a higher degree of impartiality regarding the benefit claims submitted by employees. Since the employer funds the insured group and the payment of insurance benefits to employees, the insurer, which acts solely as administrator, thus concentrates only on eligibility for benefits from a purely objective standpoint, that is from a medical standpoint (not from a more subjective standpoint related, inter alia, to its finances, since the employer, not the insurer, is financially responsible for the plan). The insurer plays the role of an administrator and takes all action necessary to manage a disability case. It is remunerated for this under the terms it has negotiated with the employer.
[8] For the employer, an ASO plan is also more advantageous in that it pays the insurer based on the experiences of the current year as opposed to a non-ASO insurance plan, in which the schedule of rates charged to the employer is prepared by the insurer based on the experience of previous years (which implies that the premiums charged to the employer may be higher under an ASO plan).
[9] In an ASO insurance plan, as in a regular insurance contract, the employer determines the percentage of salary and the period it wishes to cover in an employee disability case.
[10] In the instant case, the appellant put in place two protection plans for its employees. The first is a short-term total disability protection plan providing for 26 weeks of wage replacement (Exhibit A-4). Under that plan, employees receive 85% of gross weekly salary prior to the disability. The second is a long-term disability insurance plan, which takes effect when an employee has reached a maximum of 26 weeks under the short-term plan (Exhibit A-5). From that moment, the employee receives 75% of gross monthly salary prior to the disability. Under the long-term plan, employees receive benefits for an initial 24-month period if unable to perform the occupation they had prior to the work stoppage. After the initial 24-month period expires, if they are unable to hold any other employment, the employees are entitled to benefits and only until the age of 65.
[11] It should be noted that the end of the employer-employee relationship does not affect the right to benefits as long as the employee's period of disability commenced prior to the end of that relationship.
[12] As to the procedure for employees wishing to apply for disability insurance benefits, they are required to file a claim with the employer, which then forwards it to the insurer with confirmation that the employee is covered under the plan. The insurer then assesses the case, dealing directly with the employee and his or her attending physician. The insurer alone decides whether to accept a claim for benefit. It is also the insurer alone that decides whether the employee continues to qualify under the plan and whether he or she may continue to receive benefits.
[13] If the insurer does not accept an employee's claim or terminates payment of benefits after a certain period, the employer may not dispute the decision. However, the employee may appeal from the decision directly to the insurer, providing additional information within 60 days of the communication of the decision by the insurer. This procedure is not expressly provided for in the two existing plans for the appellant's employees (Exhibits A-4 and A-5), but it is an internal procedure at Financière. If employees still disagree with Financière's decision, they may seek legal remedy or request less demanding employment from the employer. However, it is clearly stated in the plans negotiated between the appellant and Financière that no action may be instituted against Financière. Furthermore, an action may be instituted against the insurance contract holder (appellant) within a certain time frame (Exhibit A-4, page 8; Exhibit A-5, page 9).
[14] The disability insurance benefits are paid by Financière out of the budget of the appellant's social benefit service. Employees receive their disability cheques from Financière, which draws the money from an account opened in the name of the National Bank, social benefits service, short- and long-term disability. Financière also makes the source deductions from benefits payable to employees in respect of tax deductions since disability pensions are taxable under the Income Tax Act. No deduction has ever been made for employment insurance on these disability insurance benefits.
[15] The long-term disability plan (Exhibit A-5) also provides for an occupational rehabilitation program in which the appellant cooperates as the employer. In her case, Ms. Messier-Lafleur went back to work for the appellant on a part-time basis (six hours a week) under the program starting on August 4, 1997 (when she had been on disability leave since May 1997). However, it soon became apparent that, for all practical purposes, Ms. Messier-Lafleur's disability made it impossible for her to return to her position based on the previous work schedule.
[16] In December 1997, she had a relapse and had to leave work for a three-month period. She resumed work in February 1998, working six hours a week as prescribed by her attending physician. She subsequently worked an average of seven hours a week (a maximum of 10 hours a week for 3 weeks) until November 27, 1998, when she stopped working permanently. Throughout that rehabilitation period, she worked a total of 294 hours for the appellant and received no salary but was entitled to her disability insurance benefits from Financière, since she was still considered disabled with regard to her usual occupation. On November 27, 1998, Financière stopped making payments to Ms. Messier-Lafleur. However, she retained her status with the appellant as an employee on leave without pay until September 3, 1999, when she was dismissed by the appellant for administrative reasons.
[17] According to Mr. St-Germain, the employee performed only 10% of what she usually did when she returned to work under her occupational rehabilitation. Ms. Messier-Lafleur denied this, saying that, during that period, she had performed exactly the same duties as before, but worked a smaller number of hours.
[18] Claude Plante, speaking on behalf of the appellant, confirmed that, throughout the entire period of disability, that is from May 1996 to September 1999, Ms. Messier-Lafleur had enjoyed the other applicable insurance plans the appellant offered its employees, that is the dental, medical expense and life insurance plan. She did not have to contribute to the retirement pension plan during the period, but continued accumulating her years of membership as though she were working for the appellant.
Arguments of the Parties
[19] The appellant contends that the disability insurance benefits paid to Ms. Messier-Lafleur during the period in issue did not constitute insurable earnings within the meaning of the Act and were thus not subject to Canada Pension Plan ("CPP") contributions and employment insurance ("EI") premiums. Counsel for the appellant first referred to the Employers' Guide to Payroll Deductions (97-98 and 98-99) ("Guide") published by Revenue Canada, which states that wage loss replacement benefits are subject to CPP contributions and to EI premiums if an employee receives those benefits from a trustee or insurance company under a wage loss replacement plan of which the employer:
- finances any part of the plan;
- exercises a degree of control over the terms of the plan;
- determines the eligibility for benefits.
[20] The Guide also states that wage loss replacement benefits are not subject to CPP contributions and EI premiums when the employee receives benefits from a trustee or insurance company through a wage loss replacement plan where the employer does not exercise a degree of control over the terms of the plan and does not determine the eligibility for benefits. In this last case, even if payments are taxable for the employee who receives them, it is stated that the payer is not required to withold tax.
[21] Counsel for the appellant contends that, while it can be said here that the employer funded the plan and exercised a degree of control over the terms of the plan (the appellant determined the amount of benefits payable), it cannot be said, however, that the employer determined the eligibility for benefits (it was Financière that performed this function in its role as administrator). Since one of the conditions set out in the Guide was not met, counsel contends that the disability insurance benefits are thus not subject to CPP contributions and EI premiums.
[22] Counsel for the appellant also considers that two conditions must be met to consider an amount paid to an employee to be insurable earnings under paragraph 2(1)(a) of the Regulations. The amount must be paid by the employer in respect of the employee's employment, and it must be paid in consideration for services rendered.
[23] Counsel referred to the decision by the Federal Court of Appeal in M.N.R v. Visan, [1983] 1 F.C. 820. In that case, the taxpayer had received disability insurance benefits from an insurance company under an insurance plan provided for in the employment contract. As in the instant case, it was the employer who paid the entire cost of the disability insurance plan. It had been argued that those benefits were in fact remuneration paid by the taxpayer's employer since they resulted from the conditions of employment, which required that services be rendered before the employer could be required to make the payments. The Federal Court of Appeal held that the benefits were intended to compensate the employee for the loss of payments that would have been made for services he would have rendered had he not been disabled and not been paid for services rendered.
[24] The Federal Court of Appeal concluded in that case that the amounts paid to the taxpayer in respect of his disability could not constitute earnings within the meaning of section 54 of the Regulations as it read at the time (which excluded from insurable employment any employment with an employer of a person who was employed and remunerated for less than a certain number of hours per week by his employer or who received from that employer earnings less than a certain percentage of the maximum weekly insurable earnings).
[25] Counsel for the appellant contends that this reasoning was adopted by our Court in National Bank of Canada v. Canada, [1997] T.C.J. No. 471 (Q.L.), in which it was held that an employee of the National Bank who had received disability benefits from an insurance company under an ASO contract negotiated with the National Bank did not hold insurable employment during that period. Like the Federal Court of Appeal, the court stated that the payments received by an employee are not in the nature of remuneration if they are not paid by the employer for services rendered.
[26] Counsel for the appellant also relied on the decision by the Federal Court of Appeal in Gagné v. Canada, [1998] F.C.J. No. 1811 (Q.L.), in which Pratte J.A. wrote as follows in paragraph 5:
It follows from all of this that a person's insurable earnings may, contrary to what the Tax Court of Canada said, come from someone other than the employer. Nevertheless, those earnings must be paid "for services performed in insurable employment". It is clear that the insurance benefits paid to the applicant were not paid to compensate her for services she had performed in the course of her employment.
[27] In that case, the employee had worked part-time for her employer, who had paid her for her work, and she was compensated for the other half of the time by benefits that had been paid directly by an insurance company under a group disability benefits plan.
[28] In Wong v. Canada, [1995] F.C.J. No. 984 (Q.L.), it was held that the payments received in error from the employer under a collective agreement not applicable to the employee did not constitute insurable earnings. The Federal Court of Appeal held that the payments received from the employer were due to the fact that Mr. Wong was employed, but they had not been made in respect of a benefit paid to an employee or of remuneration for services rendered under a contract of employment.
[29] Counsel for the appellant thus contends that the amounts paid to Ms. Messier-Lafleur by Financière do not constitute insurable earnings within the meaning of the Regulations since the two necessary conditions for characterizing them as such were not met. First, the amounts were not paid by the employer, and, second, they were not paid in consideration for services rendered.
[30] Counsel for the respondent relies on other decisions by the Federal Court of Appeal in contending that there were insurable earnings. She cites Canada (Attorney General) v. Quinlan (F.C.A.), [1994] F.C.J. No. 276 (Q.L.); Nanaimo Regional General Hospital v. Canada, [1997] F.C.J. No. 1706 (Q.L.); and Rousseau v. Canada, [1996] F.C.J. No. 1346 (Q.L.).
[31] In Quinlan and Nanaimo, the employee received a salary directly from his employer, whereas he rendered no services to the employer. In both cases, the employer was required to continue paying the salary in case of a work stoppage under a collective agreement binding on the employer and employees (the employer was then reimbursed by the insurance company or by a provincial agency). It was held that the salary thus paid constituted insurable earnings.
[32] In Rousseau, the appellant had paid the employee a maternity leave indemnity as required by the collective agreement during a period of unemployment caused by a pregnancy for which the unemployment insurance plan made no provision. The Court held that the indemnity was remuneration not excluded from insurable earnings under the former subsection 3(1) of the Unemployment Insurance (Collections of Premiums) Regulations, now replaced by section 2 of the Regulations.
[33] In all these cases, counsel for the respondent contends that the employer-employee relationship was considered a decisive factor in determining that there had been insurable earnings. On this point, she also cited the decision by the Federal Court of Appeal in Canada (Attorney General) v. Sirois, [1999] F.C.J. No. 523 (Q.L.), in which it was held that an employee who had taken pre-retirement leave for which she was paid by her employer without performing any work still held insurable employment as long as the employer-employee relationship had not been broken.
[34] In counsel for the respondent's view, Ms. Messier-Lafleur had maintained her employer-employee relationship with the employer throughout her period of disability. She was able to enjoy all the benefits made available to the appellant's other employees. The benefits she had received were taxable under the taxing statutes. Although Financière had made the benefit insurance payments, it had merely acted under a mandate given it by the appellant to manage its disability plan. It was the appellant that wholly funded the plan and, according to counsel for the respondent, assumed full responsibility for it. As held in Sirois, supra, there may be a contract of service even when no services are provided to the extent that the employer-employee relationship is not broken. And the employer-employee relationship was not broken in this case. Counsel for the respondent therefore argues that, in the circumstances, Ms. Messier-Lafleur in fact received insurable earnings during the period in issue.
Analysis
[35] "Insurable earnings" is defined in section 2 of the Regulations. Paragraph 2(1)(a) of the Regulations defines insurable earnings as the total amount of earnings that an insured person has from insurable employment that is paid to the person by the person's employer in respect of that employment. Under subsection 2(3) of the Regulations, insurable earnings does not include certain amounts received in respect of employment that are not taxable under certain provisions of the Income Tax Act and, inter alia, a supplement paid to a person by the employer to increase worker's compensation paid by a provincial authority or a wage loss indemnity payment made by a party other than the employer.
[36] In addition, subsection 1(2) of the Regulations defines the term "employer" as follows:
"employer" includes a person who pays or has paid earnings of an insured person for services performed in insurable employment.
[37] It appears from Visan, National Bank of Canada and Gagné, cited by counsel for the appellant, that the insurance benefits paid by insurance companies or by a provincial authority do not constitute insurable earnings within the meaning of the Act. It is also apparent from those decisions that the employer-employee relationship had not been broken at the time the employee was receiving his or her insurance benefits.
[38] It also appears from Quinlan, Nanaimo and Rousseau, cited by counsel for the respondent, that the salary an employee receives from his employer without performing any work constitutes insurable earnings if that salary is paid under his contract of employment with the employer. However, I do not share counsel for the respondent's view that, in these last cases, the employer-employee relationship was considered a decisive factor in determining whether there had been insurable earnings.
[39] As seen earlier, an employee could receive an insurance benefit, which did not constitute insurable earnings despite the fact that there was still an employer-employee relationship between the employee and the employer. In the cases cited by counsel for the respondent, it was more the contract of employment specific to each of the cases that had been analyzed to determine the nature of the payment, which the employer had made to the employee.
[40] In my view, the situation in the instant case is the same as in Visan and National Bank of Canada, supra, in which the employee had received disability insurance benefits from an insurance company under an insurance plan provided for in his contract of employment. In those cases, the insurance company had merely played an administrative function in which it alone decided on an employee's eligibility for disability insurance benefits, but in which it was the employer who funded the entire plan. The fact that the employee was still employed by the employer was not accepted as a decisive argument in establishing by other means the nature of the payment made by the insurance company. It was more the fact that the amounts paid did not correspond to services rendered, but were intended instead to compensate the employee in part for the loss of payments that would have been made for services he would have rendered if he had not been prevented by his disability, which was the decisive factor in the finding that there had been no insurable earnings.
[41] In my view, the decisions cited by counsel for the respondent have no bearing on the decisions rendered in Visan and National Bank of Canada, supra. They merely establish that an amount paid by an employer to an employee under a contractual agreement between the two, without any intervention by a third party, may constitute insurable earnings even if no services are performed. That is not the situation prevailing here, in which a third party (Financière), after determining that the employee was entitled to disability insurance benefits without consulting the employer, took the responsibility of paying those amounts to the employee. The fact that the employer funded the insurance plan did not alter the nature of the payments made in the circumstances.
[42] Having regard to the decisions rendered in Visan, National Bank of Canada and Gagné, supra, I find that the insurance benefits that Financière paid to Ms. Messier-Lafleur did not constitute insurable earnings under the Act and Regulations.
[43] Moreover, I do not believe that the fact that Ms. Messier-Lafleur worked 294 hours during the period in issue changes the nature of the payments received from Financière. It was not under her contract of employment with the appellant that she rendered those services and was paid. It was under the insurance contract binding on the appellant and Financière that the appellant was asked to take back Ms. Messier-Lafleur on a part-time basis in an attempt to rehabilitate her. In this instance, the appellant was merely cooperating in the rehabilitation program. It moreover paid Ms. Messier-Lafleur no salary for the hours she worked as part of the program. Ms. Messier-Lafleur was always covered by the disability insurance plan.
[44] For the reasons given in Wong, supra, I find that the disability benefit paid to Ms. Messier-Lafleur during her period of rehabilitation also did not constitute insurable earnings.
[45] For these reasons, I will allow the appeal and vary the decision rendered by the Minister under subsection 93(3) of the Act on the basis that the remuneration received by Lise Messier-Lafleur from Financière during the period from November 28, 1997, to November 28, 1998, totalling $16,677, did not constitute insurable earnings within the meaning of subsection 2(1) of the Act and sections 1 and 2 of the Insurable Earnings and Collection of Premiums Regulations.
Signed at Ottawa, Canada, this 21st day of February 2002.
|
Lucie Lamarre |
J.T.C.C.
Translation certified true
on this 17th day of March 2003.
Sophie Debbané, Revisor