EMPLOYMENT INSURANCE |
Canada (Attorney General) v. Radigan
A-567-99
Strayer J.A.
31/1/01
6 pp.
Judicial review of Umpire's decision--When respondent's employment terminated, sued employer for wrongful dismissal--Settlement payment including $1,500 for job search expenses, $2,500 for job training expenses--Commission treating those sums ($4,000) as earnings--On appeal, Board of Referees simply holding $4,000 should not have been treated as earnings--While respondent providing no evidence amount actually spent for purposes designated in settlement, Board obviously concluding from oral statements money would be used for such purposes--Umpire confirming Board's decision, distinguishing Renaud, CUB-17899 wherein stated "only such expenditures actually incurred . . . in job searching and relocation can be . . . removed from their characterization as earnings"--Application dismissed--Employment Insurance Regulations, s. 57(2)(a) providing earnings to be taken into account including entire income of claimant arising out of any employment--Court long holding settlement payment in respect of action for wrongful dismissal "income arising out of . . . employment" unless claimant demonstrating due to "special circumstances" some portion of it should be regarded as compensation for some other expense or loss--Statement in Renaud only such reasonable expenses "actually incurred" in job searching, relocation can be removed from earnings, too rigid formulation of what is necessary finding of fact by Board--That finding of fact must be that appears money allocated for job searches, training, used for such purposes or that genuine intention will be so used--Onus on claimant to provide satisfactory evidence amounts allocated for these purposes in settlement so spent or genuine intent to so spend them--Too restrictive to insist such costs "actually incurred"--In face of claimant's evidence, Commission's submissions on law as to need for "special circumstances" warranting exclusion of $4,000 from allocated earnings Board finding $4,000 should be excluded from earnings--Commission not satisfying Court Board erred in fact, law in so finding--That ex-employer agreed to allocating generous portion of settlement to non-earnings neither conclusive nor persuasive allocations for job searches, training "reasonable"--Unemployment Insurance Regulations, C.R.C., c. 1576, s. 57(2)(a) (as am. by SOR/90-756, s. 17).