[OFFICIAL ENGLISH TRANSLATION]
2001-1014(EI)
BETWEEN:
VILLE DE LAVAL,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Appeal heard on September 19, 2001, at Montréal, Quebec, by
the Honourable Deputy Judge J. F. Somers
Appearances
Counsel for the Appellant: Robert Ouimet
Counsel for the Respondent: Claude Lamoureux
JUDGMENT
The appeal is dismissed and the Minister's decision is confirmed in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 22nd day of November 2001.
|
"J. F. Somers" |
D.J.T.C.C.
Translation certified true
on this 28th day of February 2003.
Sophie Debbané, Revisor
[OFFICIAL ENGLISH TRANSLATION]
Date: 20011122
Docket: 2001-1014(EI)
BETWEEN:
VILLE DE LAVAL,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
REASONS FOR JUDGMENT
Somers, D.J.T.C.C.
[1] This appeal was heard at Montréal, Quebec, on September 19, 2001.
[2] By letter dated February 15, 2001, the Minister of National Revenue (the "Minister") informed the appellant of his decision that the employment of Richard Campeau, the worker, was insurable on the ground that there was an employer-employee relationship between the Ville de Laval (the "City") and the worker during the periods from January 1 to December 31, 1999, and from January 1 to July 14, 2000.
[3] Subparagraph 5(1) of the Employment Insurance Act reads in part as follows:
5(1) Subject to subsection (2), insurable employment is
(a) employment in Canada by one or more employers, under any express or implied contract of service or apprenticeship, written or oral, whether the earnings of the employed person are received from the employer or some other person and whether the earnings are calculated by time or by the piece, or partly by time and partly by the piece, or otherwise;
[4] Subsection 2(1) of the Insurable Earnings and Collection of Premiums Regulations (Regulations) reads as follows:
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
(b) the amount of any gratuities that the insured person is required to declare to the person's employer under provincial legislation.
[5] The burden of proof is on the appellant. It has to show on the balance of evidence that the Minister's decision is unfounded in fact and in law. Each case stands on its own merits.
[6] In making his decision, the Minister relied on the following assumptions of fact:
[TRANSLATION]
(a) the worker began working for the appellant in September 1976;
(b) during the periods in issue, the worker was on leave as a result of a work accident;
(c) during the periods in issue, the worker received his full remuneration from the appellant in accordance with the collective agreement;
(d) the appellant was reimbursed by the Commission de la santé et sécurité au travail (CSST) for a portion of the remuneration paid to the worker.
[7] The sole witness to be heard in this case was Denis Bertrand, Coordinator, Research Budget, for the Ville de Laval.
[8] According to that witness, the worker began working for the appellant in September 1976. During the periods in issue, the worker was on leave as a result of a work accident.
[9] Denis Bertrand stated that the worker had received an income replacement indemnity in accordance with article 25.04 of the Collective Agreement, which reads as follows:
[TRANSLATION]
Income Replacement Indemnity
In all employment injury cases, the City pays the employee an income replacement indemnity determined as follows:
1. The regular salary is equivalent to the number of hours usually worked multiplied by the wage of the employee's classification at the time of his departure.
2. The regular salary, obtained under the previous paragraph, is reduced by the following deductions:
- provincial and federal income taxes;
- unemployment insurance;
- Quebec Pension Plan.
3. The City pays an income replacement indemnity equivalent to the amount obtained under the previous paragraph. From that indemnity, the City makes the following deductions:
- employee contributions to the group insurance plan and supplementary pension plan;
- union dues.
[10] The worker had 19 work accidents during his years in the payer's service. The last work accident occurred on January 17, 1994, and the worker did not return to work.
[11] The witness testified that, following that work accident, the appellant acted as the agent of the Commission de la santé et sécurité au travail (CSST) by paying the worker advances until the Commission had made a decision.
[12] The appellant directly paid the worker his usual weekly salary, in accordance with the CSST guide, that is, the amount of $406.00. The CSST reimbursed the appellant for that amount a few weeks later. The appellant paid the worker a supplement of $76, less the deductions enumerated in article 25.04 of the Collective Agreement.
[13] When the CSST rejects an injury, the worker must return the amounts paid. In the case of this worker, the CSST found that an injury had occurred as a result of a work accident, and the worker therefore received the amounts determined under article 25.04 of the Collective Agreement during the periods in issue.
[14] During the periods in issue, the worker enjoyed the benefits of all the insurance policies held under the Collective Agreement, such as health insurance and dental insurance.
[15] The evidence showed that the worker received his full remuneration from the appellant during the periods in issue in accordance with the Collective Agreement. The CSST reimbursed the appellant for a portion of the remuneration paid to the worker.
[16] What must be determined is whether the worker's remuneration was insurable during the periods in issue.
[17] Paragraph 2.1(a) of the Regulations defines insurable earnings as follows: "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 . . ."
[18] In Canada (Attorney General) v. Quinlan, A-1206-92, dated February 28, 1994, the Federal Court of Appeal confirmed the umpire's decision of June 11, 1992, the conclusion of which reads in part as follows:
[TRANSLATION]
As to the argument that the claimant received partial wage-loss insurance benefits and not remuneration, I would recall once again that the text of the agreement between the employees and the employer states that the employee [TRANSLATION] "continues to receive his full salary". The employer is not simply an intermediary for the payment of wage-loss insurance benefits to the employee by the insurer.
[19] In Nanaimo Regional General Hospital v. Canada (Minister of National Revenue - M.N.R.), [1997] F.C.J. No. 1706, the Federal Court of Appeal concurred in the decision in Quinlan cited above, writing:
We are all of the opinion that the facts in this case cannot be distinguished from those in the Quinlan case (Attorney General of Canada v. Quinlan, unreported, F.C.A. A-1206-92, February 28, 1994).
[20] The facts related in the decision by Judge Watson of this Court in Nanaimo Regional General Hospital, [1997] T.C.J. No. 39, supra, are as follows:
... Once the W.C.B. acknowledged her claim, she started receiving cheques retroactively for approximately 100% of her normal wages during the period in issue. She received cheques from the hospital for approximately the full amount of her normal wages that included the 75% from the W.C.B. and the 25% top up amount pursuant to the collective agreement as if she had been at work; she was not considered by the hospital to be on sick leave but was paid as if she was on continuous service.
[21] During the periods in issue, the worker received his full salary and health and dental insurance benefits as though his employment with the employer had not been interrupted.
[22] The worker received his full remuneration from the appellant in accordance with the Collective Agreement, and the CSST reimbursed the appellant for a portion of that remuneration paid to the worker.
[23] Whether the total amount received is called an income replacement indemnity or wage-loss insurance is of little importance. What is important is that the worker received weekly amounts from the employer in respect of that employment.
[24] The worker held insurable employment within the meaning of the Employment Insurance Act during the periods in issue since he was bound to the appellant by a contract of service within the meaning of paragraph 5(1)(a) of that Act.
[25] The remuneration received by the worker therefore constituted insurable earnings within the meaning of the Employment Insurance Act during the periods in issue.
[26] The appeal is dismissed.
Signed at Ottawa, Canada, this 22nd day of November 2001.
|
"J. F. Somers" |
D.J.T.C.C.
Translation certified true
on this 28th day of February 2003.
Sophie Debbané, Revisor