Date: 20040503
Docket: A-510-02
Ottawa, Ontario, May 3, 2004
CORAM : DESJARDINS J.A.
LÉTOURNEAU J.A.
NADON J.A.
BETWEEN:
SYLVIE GROLEAU
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
JUDGMENT
The application for judicial review is dismissed with costs.
|
|
"Alice Desjardins" |
|
|
J.A. |
Certified true translation
Suzanne M. Gauthier, C Tr, LLL
Date: 20040503
Docket: A-510-02
Citation: 2004 FCA 174
CORAM : DESJARDINS J.A.
LÉTOURNEAU J.A.
NADON J.A.
BETWEEN:
SYLVIE GROLEAU
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
Hearing held at Québec, Quebec, on April 1, 2004.
Judgment rendered at Ottawa, Ontario, on May 3, 2004.
REASONS FOR JUDGMENT: LÉTOURNEAU J.A.
CONCURRED IN BY: DESJARDINS J.A.
NADON J.A.
Date: 20040503
Docket: A-510-02
Citation: 2004 FCA 174
CORAM : DESJARDINS J.A.
LÉTOURNEAU J.A.
NADON J.A.
BETWEEN:
SYLVIE GROLEAU
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
[1] The applicant is challenging by judicial review a decision by an umpire on July 30, 2002. By that decision the umpire reversed a decision by a board of referees and restored the position taken by the Canada Employment Insurance Commission (the Commission).
[2] In a notice it caused to be sent to the applicant, the Commission informed the latter, who was pregnant and who had exercised the right of precautionary cessation of work, that she was not entitled to an extension of her benefit period based on paragraph 10(10)(d) of the Employment Insurance Act, S.C. 1996, c. 23 (the Act), which reads:
|
10. (10) A claimant's benefit period is extended by the aggregate of any weeks during the benefit period for which the claimant proves, in such manner as the Commission may direct, that the claimant was not entitled to benefits because the claimant was |
10. (10) La période de prestations qui a été établie au profit d'un prestataire est prolongée du nombre de semaines à l'égard desquelles le prestataire prouve, de la manière que la Commission peut ordonner, qu'il n'avait pas droit à des prestations parce que, selon le cas : |
| (a) confined in a jail, penitentiary or other similar institution; | a) il était détenu dans une prison, un pénitencier ou un autre établissement semblable; |
| (b) in receipt of earnings paid because of the complete severance of their relationship with their former employer; |
b) il touchait une rémunération versée en raison de la rupture de tout lien avec son ancien employeur; |
| (c) in receipt of workers' compensation payments for an illness or injury; or |
c) il touchait l'indemnité prévue pour un accident du travail ou une maladie professionnelle; |
| (d) in receipt of payments under a provincial law on the basis of having ceased to work because continuing to work would have resulted in danger to the claimant, her unborn child or a child whom she was breast-feeding. |
d) il touchait des indemnités en vertu d'une loi provinciale du fait qu'il avait cessé de travailler parce que la continuation de son travail le mettait en danger ou, dans le cas d'une prestataire, mettait en danger son enfant à naître ou l'enfant qu'elle allaitait. |
(Emphasis added.)
[3] Both the umpire and the Commission considered that the applicant had not been able to establish she was entitled to benefits as she was receiving income replacement indemnities from the Quebec Commission de la santé et sécurité du travail (CSST).
[4] By its calculations the Commission established that the applicant's weekly benefit rate amounted to $413, and under subsection 19(3) of the Act the applicant could receive up to $103 earnings weekly without any deduction being made from her benefits payable. The applicant could accordingly receive $516 a week. These amounts are not at issue.
[5] During her precautionary cessation of work, the application received an income replacement indemnity from the CSST corresponding to 90% of her net salary. As it had undertaken to do in the collective agreement, the applicant employer paid her a weekly amount of $52 to replace the part of the net salary not covered by the income replacement indemnity paid by the CSST. The applicant accordingly received weekly the sum of $456, broken down as follows: CSST $404, employer $52. These amounts are not at issue. The Commission determined that the applicant could receive $60 benefits weekly ($516 -$456), that is the difference between the weekly amount she could receive without the deductions mentioned in subsection 19(2) and the amount actually received from the CSST and the employer.
[6] I set out below subsections 11(2) and 19(2) of the Act, which are necessary for an understanding of the applicant's arguments:
|
11. (2) A week during which a claimant's contract of service continues and in respect of which the claimant receives or will receive their usual remuneration for a full working week is not a week of unemployment, even though the claimant may be excused from performing their normal duties or does not have any duties to perform at that time. |
11. (2) Une semaine durant laquelle se poursuit un contrat de louage de services d'un prestataire et pour laquelle celui-ci reçoit ou recevra sa rétribution habituelle pour une semaine entière de travail n'est pas une semaine de chômage, même si le prestataire peut être dispensé de l'exercice de ses fonctions normales ou n'a en fait aucune fonction à exercer à ce moment-là. |
|
19. (2) Subject to subsections (3) and (4), if the claimant has earnings during any other week of unemployment, there shall be deducted from benefits payable in that week the amount, if any, of the earnings that exceeds (a) $50, if the claimant's rate of weekly benefits is less than $200; or (b) 25% of the claimant's rate of weekly benefits, if that rate is $200 or more. |
19. (2) Sous réserve des paragraphes (3) et (4), si le prestataire reçoit une rémunération durant toute autre semaine de chômage, il est déduit des prestations qui lui sont payables un montant correspondant à la fraction de la rémunération reçue au cours de cette semaine qui dépasse 50 $, ou vingt-cinq pour cent de son taux de prestations hebdomadaires si celui-ci est de 200 $ ou plus. |
[7] In the case at bar, the applicant submitted two arguments which are apparently independent of each other in terms of the discussion, but which as we will see below are actually interdependent both from that standpoint and for solution of the problem.
[8] The applicant argued, first, that she was not unemployed within the meaning of subsection 11(2) of the Act since she received her usual remuneration while she was on precautionary cessation of work. Accordingly, she concluded, as I was not unemployed I could not receive benefits and I was entitled to an extension of the benefit period mentioned in paragraph 10(10)(d) of the Act.
[9] With respect, I feel that the applicant has misunderstood the purposes and scope of paragraph 10(10)(d) and subsection 11(2) and the relationship existing between these two provisions.
[10] Subsection 10(10) determines the conditions on which a person who is unemployed may obtain an extension of his or her benefit period. Paragraph 10(10)(d) covers inter alia a person who is on precautionary cessation of work because she is pregnant. Subsection 10(10) assumes that a person is unemployed, since it indicates that a benefit period has been established and the conditions on which it may be extended. In fact, section 9 of the Act provides that a benefit period must be established for an insured who applies for it and who meets the conditions set out in section 7. Section 7 requires the insured who makes an application for benefits to have had an interruption of earnings resulting from employment. If, as the applicant maintained, she was not unemployed, she was not entitled to a benefit period, much less to an extension of the period.
[11] Further, paragraph 10(10)(d) applies if the claimant was receiving indemnities from the CSST. If, as she maintained, the applicant was not receiving indemnities, but her usual remuneration within the meaning of subsection 11(2), the conditions in the paragraph were not met. Further, she could not have the status of a claimant required by subsection 10(10), since she was not unemployed.
[12] In short, the applicant would like the Court to rule that she was not unemployed since she was receiving her usual remuneration, and in the same breath that she was entitled to a benefit period and to have it extended because she was unemployed as there had been an interruption of earnings.
[13] Finally, subsection 11(2) relied on by the applicant deals with usual remuneration, and does not apply in the case at bar since the applicant did not receive remuneration, but rather income replacement indemnities. Further, this is what makes paragraph 10(10)(d) applicable, and why, as the plaintiff was presumed to be unemployed following the precautionary cessation of work, she could make use of the extension if the other conditions in subsection 10(10) were met.
[14] As her second ground for challenging the umpire's decision, the applicant argued that in analysing the allocation of the remuneration her gross, not net, income should be taken into account. If I understand the argument correctly, as it did not appear in her memorandum of fact and law and was raised at the hearing for the first time and took all concerned somewhat by surprise, the reasoning is as follows. The applicant was receiving gross weekly pay from her employer of $688. She was entitled to additional earnings of $103 a week without any deductions being made from her benefits. She was earning $688 so she could not receive benefits when the deduction procedure mentioned in subsection 19(2) is applied.
[15] I note in passing that this argument by the applicant assumes she was unemployed, so there was an interruption of earnings resulting from employment and she benefited from a benefit period. That is the condition for this subsection to apply. If she was unemployed, she could not have been receiving her usual remuneration from her employer. The fact is that, as already mentioned, she did not receive her usual remuneration from her employer. Instead, she received income replacement indemnities from a third party insurer, the CSST, and remuneration of $52 from her employer, which in the circumstances was unusual: on the status of the CSST as third party insurer, see Cité de la Santé de Laval v. Minister of National Revenue and Lachambre and Trudel, 2004 FCA 119. It is these weekly amounts of $456 (CSST $404, employer $52) that she actually received during her period of precautionary cessation of work, and it is these amounts which must be taken into account in applying subsection 19(2) of the Act.
[16] For these reasons, I would dismiss the application for judicial review with costs.
|
|
"Gilles Létourneau" |
|
|
J.A. |
"I concur in these reasons
Alice Desjardins J.A."
"I concur in these reasons
Marc Nadon J.A."
Certified true translation
Suzanne M. Gauthier, C Tr, LLL
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A-510-02
STYLE OF CAUSE: SYLVIE GROLEAU v. THE ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: QUÉBEC, QUEBEC
DATE OF HEARING: APRIL 1, 2004
REASONS FOR JUDGMENT: LÉTOURNEAU J.A.
CONCURRED IN BY: DESJARDINS J.A.
NADON J.A.
DATED: MAY 3, 2004
APPEARANCES:
Claudine Barabé FOR THE APPLICANT
Pauline Leroux FOR THE RESPONDENT
SOLICITORS OF RECORD:
Lapierre, St-Denis et associés FOR THE PLAINTIFF
Montréal, Quebec
Department of Justice Canada FOR THE RESPONDENT
Montréal, Quebec