EMPLOYMENT INSURANCE |
Canada (Attorney General) v. Haberman
A-717-98
Sexton, Strayer and Isaac (dissenting) JJ.A.
21/7/00
45 pp.
Judicial review of Umpire's dismissal of Commission's appeal to Board of Referees--Under Unemployment Insurance Act, eligibility for unemployment insurance benefits determined by reference to number of weeks worked in qualifying period--After January 4, 1997 under Employment Insurance Act (EIA), eligibility determined by reference to number of hours worked--Employment Insurance Regulations, s. 94.1 stating weeks of insurable employment accumulated prior to January 1, 1997 converted to hours, with one week of insurable employment representing 35 hours of insurable employment--Respondent applied for employment insurance benefits in March 1997--Required at least 910 hours of insurable employment for entitlement to employment insurance benefits--Employment Insurance Commission applying s. 94.1 to convert 18 weeks worked prior to January 1, 1997 to 630 hours, concluding respondent had only 904 hours of insurance employment--Respondent submitting had worked more than 35 hours per week in 1996--Board of Referees allowing appeal, "using common sense"--After Board of Referees issuing decision, Commission requesting Department of National Revenue to determine hours of insurable employment respondent earned in 1997--Umpire dismissing Commission's appeal, holding s. 94.1 not requiring Commission to convert week of insurable employment in 1996 into 35 hours where claimant provided evidence showing more than 35 hours in week worked--Further holding as evidence to contrary, respondent having sufficient number of hours to entitle her to employment insurance benefits--Application allowed (Isaac J.A. dissenting)--Per Sexton J.A.: EIA, s. 90(1)(d) permitting employer, employee to request officer of Department of National Revenue to make ruling on hours of insurable employment--S. 122 providing if question specified in s. 90 arising in consideration of claim for benefits, shall be determined by officer of Department of National Revenue--Unemployment Insurance Act, ss. 61(3)(c), 89 similar--Canada (Attorney General) v. Vautour, [1996] F.C.J. No. 1717 (C.A.) (QL); Canada (Attorney General) v. Kaur (1994), 167 N.R. 98 (F.C.A.); Valentine v. Canada (Attorney General), [2000] F.C.J. No. 619 (C.A.) (QL) holding s. 61(3) preventing Board of Referees, Umpire from determining length of claimant's insurable employment--In light of cases, EIA, s. 122, Board of Referees, Umpire without jurisdiction to determine whether respondent had sufficient hours of insurable employment to qualify for benefits--That Minister not asking Department of National Revenue to determine insurable hours for 1996 not vesting Board of Referees, Umpire with jurisdiction to consider number of insurable hours--That Minister not arguing Umpire not having jurisdiction to consider number of hours respondent had in insurable employment not vesting Umpire with such jurisdiction if Act not so providing--Respondent could have requested ruling with respect to 1996 hours under s. 90(1)(d), but s. 90(2) precluding her from doing so after June 30 following year to which question relates--S. 94 indicating MNR under no such limitation--Umpire ordered to give decision Board of Referees should have given i.e. order Commission to request MNR to determine respondent's 1996 hours of insurable employment--Per Strayer J.A. (concurring): Commission initially having authority to determine hours of insurable employment if no dispute, but effect of ss. 90(1)(d), 122 that Commission must make request to Department of National Revenue for determination if question arising in consideration of claim for benefits--As soon as respondent disputed Commission's calculation of 1996 hours of insurable employment, matter should have been sent to Department--Not open to Court to determine hours of insurable employment, but if wrong on this point, proper interpretation of s. 94.1 permitting Commission, Board of Referees, Umpire to calculate actual number of hours worked where evidence so enabling them to do so--Per Isaac J.A. (dissenting): EIA, s. 118 providing umpire's decision final and except for judicial review, not subject to appeal or review by any court--On questions of law or jurisdiction, standard of review of umpire's decision correctness, while findings of fact must be accorded some deference--Objective of EIA, Regulations to assist unemployed persons possibly qualifying for benefits--Social welfare legislation to be liberally construed so as to advance benevolent purpose of legislation--Interpretation of "shall" in s. 94.1--"Shall" not always mandatory or imperative--May be directory depending on context: Montreal Street R. Co. v. Normandin (1917), 33 D.L.R. 195 (P.C.)--Evidence respondent working more than 910 hours to qualify for benefits--Employer reporting work both in hours, weeks--Generous interpretation of s. 94.1, consistent with Hills, suggesting interpretation in favour of respondent--Reinforced by recognition "shall" in s. 94.1 directory only--Fortified by Regulations, s. 10(1): where employer providing evidence of number of hours actually worked and for which employee remunerated, employee deemed to have worked that number of hours in insurable employment--Umpire not erring in law--Sexton J.A.'s conclusion on jurisdictional issue confusing issues of insurability with those of entitlement to benefits--Sexton J.A.'s interpretation of s. 90(1) not maintainable--If s. 122 encompassing all questions involving insurable hours, Commission would have no jurisdiction to determine whether claimant satisfying requirements of EIA, s. 7 i.e. would be precluded from making determination concerning insurable hours, and therefore whether claimant entitled to benefits under Act--"Questions" enumerated in s. 90 should be interpreted to leave room for Commission, Board Umpire to exercise jurisdiction Parliament intended them to have in relation to benefits--Can only be done if issues of insurability left to Department of National Revenue, and issues of entitlement to benefits left to Commission, Board, Umpire--Questions enumerated in s. 90 should be interpreted to include only questions of insurability, not entitlement--Kaur, Vautour, Valentine cases relied upon by Sexton J.A. involved issues of insurability, within exclusive jurisdiction of Minister--Also indicating issues of entitlement within jurisdiction of Commission, Board, Umpire--Issue herein whether 18 weeks at 38 hours per week in 1996 plus 274 hours in 1997 sufficient to create entitlement to benefits--Question for Commission, Board, Umpire--Umpire not having jurisdiction to determine actual number of insurable hours, i.e. within s. 90(1)(d)--Conclusion Commission must count all 684 insurable hours within Umpire's jurisdiction as issue of entitlement--Canada (Attorney General) v. Hoek, [2000] F.C.J. No. 622 (C.A.) (QL) applying plain meaning rule to conclude s. 94.1 mandatory--As reasons not referring to interpretive approaches laid down in Abrahams, Hills, Normandin, decision not binding--Employment Insurance Act, S.C. 1996, c. 23, ss. 7, 90(1)(d),(2), 94, 118, 122--Employment Insurance Regulations, SOR/96-332, ss. 10(1), 94.1 (as am. by SOR/97-31, s. 24)--Unemployment Insurance Act, R.S.C., c. U-1, ss. 61(3) (as am. by S.C. 1990, c. 40, s. 37), 89.