EMPLOYMENT INSURANCE |
Cité de la santé de Laval v. M.N.R.
A-661-02
2004 FCA 119, Létourneau J.A.
23/3/04
22 pp.
Application for judicial review of decision by Tax Court of Canada Deputy Judge (Judge) amounts advanced by applicant to two employees, but reimbursed by Commission de la santé et de la sécurité du travail (CSST), for periods of reassignment to precautionary cessation of work, insurable earnings within meaning of Employment Insurance Act (Act) --Ms. Lachambre and Trudel nurses employed by applicant --Ms. Lachambre assigned to floating staff full time, but that does not mean she worked full time--Ms. Trudel assigned to preadmission clinic with part-time schedule altered by letter on December 6, 2000--Distinction must be made between general assignment to position, work unit and special, daily assignment to duties in that position, unit--In short, when applicant unable to provide work consistent with safety requirements imposed by pregnancies, employees made use of entitlement to special leave under collective agreement, which corresponded to precautionary cessation of work under Act respecting Occupational Health and Safety (AOHS)--Right exercised on daily basis as authorized by clause 20.21 of agreement, depending on availability of work, in keeping with full-time assignment for Ms. Lachance, part-time one for Ms. Trudel--Whether amounts paid by employer to employees on precautionary cessation of work, subsequently reimbursed by third party insurer (CSST), insurable earnings --Short reasons given by judge in support of conclusion these were insurable earnings not supporting conclusion--First, conclusion both employees capable of doing some work completely ignores existence of right to precautionary cessation conferred on them, exercise of right and legal impact which exercise could have on nature, status of amounts paid as result of it--In short, two employees' availability for, capacity to perform work still relevant facts, but not really helpful in deciding point at issue --Secondly, Judge relied as justification on fact work actually done in case at bar--Such conclusion partly right, partly wrong--If one considers part was wrong, one has to recognize it cannot support conclusion amounts paid insurable earnings because work done--Ruling by Judge ignores exercise of right to precautionary cessation by two employees, legal consequen-ces resulting therefrom-- Lack of work done not basis for concluding insurable earnings --Lack of work done in case at bar only raising question of insurability of amounts paid, not providing answer--Act, s. 2(1) defines insurable earnings as "the total amount of the earnings, as determined in accordance with Part IV, that an insured person has from insurable employment"--In its ordinary meaning "earnings", regardless of whether insurable, refers to remuneration, salary, income, money received for service or work--AOHS, s. 36 deals with earnings of employee in usual sense, replacement indemnity when employee exercises precautionary cessation of work right, entitled to indemnity--Amounts at issue not insurable earnings within meaning of Act--To begin with, group plan established by AOHS legally legislative insurance plan covering indemnities for pregnant person, not part of contract of employment concluded between applicant and employees, financed by contributions from employers--Second, for income from employer to be earnings, it must have been paid pursuant to labour, employment contract--Amounts paid by CSST here not paid pursuant to contract of employment between employees, CSST--Further, amounts from CSST legally classified by AOHS as "income replacement indemnity"--Not in nature of earnings--Amounts paid as income replacement indemnities under legislative insurance plans payments by third party insurer that do not constitute insurable earnings--Application allowed--Employment Insurance Act, S.C. 1996, c. 23, s. 2(1) "insurable earnings"-- Act respecting Occupational Health and Safety, R.S.Q., c. S-21.