A-527-8i
André Giroux (Applicant)
v.
Canada Employment and Immigration Commis
sion (Respondent)
and
Deputy Attorney General of Canada (Mis -en-
cause)
INDEXED AS: GIROUX V. CANADA (CANADA EMPLOYMENT ANL
IMMIGRATION COMMISSION) (C.A.)
Court of Appeal, Pratte, Lacombe and Desjardins
JJ.—Montréal, March 2; Ottawa, April 15, 1988.
Unemployment insurance — Quebec construction worker
receiving compulsory annual vacation pay under Construction
Decree from Office de la construction du Québec — Payments
received in December 1985 and 1986 during periods of lay-off
and when in receipt of unemployment insurance benefits —
Payments not earnings within Unemployment Insurance Regu
lations, but repayment of savings — Construction workers in
Quebec governed by Construction Decree, deserving same
treatment as those in Ontario governed by collective agree
ments — Phrase "in respect of his severance from employ
ment" in Regulations, s. 57(3)(h) referring both to money
payable under policy and under collective agreement — Com
mission's power to make regulations providing for allocation
of earnings including power to determine week in which earn
ings made.
This was an application to set aside the decision of a board of
referees that annual vacation pay received by the applicant
from the Office de la construction du Québec in December
1985 and 1986, while he was laid off and receiving unemploy
ment insurance benefits, was earnings. The applicant's terms of
employment were determined by Quebec's Construction
Decree, which requires an employer to pay a percentage of an
employee's wages to the Office de la construction du Québec as
annual vacation pay. The money is then paid to employees on
specified dates. The applicant argued that the money was not
earnings within section 57 of the Regulations. He relied on
Bryden v. Canada Employment and Immigration Commission,
[1982] I S.C.R. 443, wherein the Supreme Court of Canada
held that vacation pay paid under a collective agreement
between the employee's union and the Boilermakers Contrac
tors' Association was a repayment of savings. The applicant
disputed Daigle v. Employment and Immigration Commission,
a decision of the Federal Court of Appeal, which distinguished
the Bryden case on the grounds that in Bryden employees could
apply to withdraw the amounts before their vacation period,
and the payments were made under a contract, not a legislative
decree like Quebec's Construction Decree. The Federal Court
of Appeal followed Bryden in Vennari v. Canada (Canada
Employment and Immigration Commission), [1987] 3 F.C.
129, where vacation pay was paid in the same circumstances as
Bryden. Secondly, the applicant argued that the money was not
earnings because it had been paid to him in the circumstances
described in paragraph 57(3)(h). That paragraph provides that
where the content of an employer's written policy respecting
moneys payable on severance is established by documents that
show that such policy actually existed prior to December 31,
1984, any moneys payable pursuant to that agreement or policy
"in respect of his severance from employment" including vaca
tion pay, are not earnings. The applicant argued that the
vacation pay was paid under a collective agreement in effect
prior to December 31, 1984; therefore it was not earnings even
though it was not paid in relation to his severance from
employment. The applicant relied on Stone J.'s interpretation
of paragraph 57(3)(h) in Vennari that the words "in respect of
his severance from employment" refer only to money payable
under a policy, and not money payable under a collective
agreement. Thirdly, he submitted that if the amounts received
were earnings, they were earnings for the weeks during which
they were earned and could not be allocated to other weeks. He
relied on a statement of Thurlow C.J. in Vennari for this
argument.
Held, the appeal should be allowed.
The compulsory annual vacation pay was not earnings within
section 57 of the Regulations. The Federal Court of Appeal had
erred in distinguishing Daigle from the Bryden case. Although
the Quebec Construction Decree is a document of a legislative
nature, it is based on a freely negotiated collective agreement.
The terms of employment provided in a collective agreement
are imposed on an employee just as those provided in a decree
are imposed on him. The fact that under the decree employees
can only claim payment of vacation pay on specified dates is
not sufficient to conclude that the money is not held on the
employee's behalf. That he is entitled to interest on the money
the Office receives from employers indicates that the money is
being held on the employee's behalf. Construction workers in
Ontario and Quebec should be treated the same way.
As to the second argument, as was indicated in Vigneault v.
Canada (Canada Employment and Immigration Commission),
[ 1989] 1 F.C. 294, Vennari was wrongly decided on this point.
As to the third issue, Thurlow C.J.'s reasoning in Vennari did
not take into consideration the power of the Commission under
the Act to allocate earnings, including the power to determine
the week in which earnings were made. When earnings are tc
be allocated to a week of unemployment under section 58 of the
Regulations, such earnings are deemed to be earnings for that
week even if they were payment for work done previously. The
power to allocate given to the Commission by the Act is in spitc
of the fact that in reality an employee earns all money paid tc
him by his employer by working.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
An Act respecting labour relations in the construction
industry, R.S.Q., c. R-20.
Construction Decree, R.R.Q. 1981, c. R-20, r. 5, ss.
20.01, 20.06, 20.07.
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
Unemployment Insurance Act, 1971, S.C. 1970-7l-72, c.
48, ss. 26(2), 91.
Unemployment Insurance Regulations, C.R.C., c. 1576,
ss. 57 (as am. by SOR/85-288, s. 1), 58(13) (as am.
idem, s. 2).
CASES JUDICIALLY CONSIDERED
FOLLOWED:
Bryden v. Canada Employment and Immigration Com
mission, [1981] 2 F.C. 91 (C.A.); rev'd [1982] 1 S.C.R.
443.
NOT FOLLOWED:
Daigle v. Employment and Immigration Commission,
A-547-83, Pratte J., judgment dated 19/1/84, F.C.A., not
reported; Vennari v. Canada (Canada Employment and
Immigration Commission), [1987] 3 F.C. 129 (C.A.).
CONSIDERED:
Unemployment Insurance Commission v. Serge Baril,
CUB-4604.
REFERRED TO:
Vigneault v. Canada (Canada Employment and Immi
gration Commission), [1989] 1 F.C. 294 (C.A.).
COUNSEL:
Guy Martin for applicant.
Carole Bureau and Guy LeBlanc for respon
dent.
SOLICITORS:
Sauvé, Ménard & Associés, Montréal, for
applicant.
Deputy Attorney General of Canada for
respondent.
The following is the English version of the
reasons for judgment rendered by
PRATTE J.: The applicant has applied under
section 28 of the Federal Court Act [R.S.C. 1970
(2nd Supp.), c. 10] to have a decision of a board of
referees established under section 91 of the Unem
ployment Insurance Act, 1971 [S.C. 1970-71-72,
c. 48] set aside. The decision of the board was that
money received by the applicant in December
1985 and 1986 from the Office de la construction
du Québec as annual vacation pay was earnings
within the meaning of section 57 of the Unemploy
ment Insurance Regulations [C.R.C., c. 1576],
and therefore had to be allocated as provided in
subsection 58(13) [as am. by SOR/85-288, s. 2] of
the Regulations.
The applicant is a carpenter. In 1985 and 1986
he worked for a building contractor, and his terms
of employment were determined by the Construc
tion Decree (R.R.Q. 1981, c. R-20, r. 5) adopted
by the government of Quebec under An Act
respecting labour relations in the construction
industry (R.S.Q., c. R-20). This decree provides
that every employee is entitled each year to four
weeks of compulsory vacation and in addition to
paying its employee's salary the employer must
credit them each week with annual vacation pay in
the amount of six per cent of wages earned during
the week. Each month, the employer must pay the
amounts so credited to each employee to the Office
de la construction du Québec, which is in turn
required to pay the money to the employees on the
dates specified. These provisions are contained in
sections 20.01 and 20.06 of the decree:
20.01. Compulsory annual vacations: Each year, every
employee is entitled to 4 weeks' annual compulsory vacation to
be taken as follows:
(1) Summer: All construction job sites must close down
during the last 2 full calendar weeks in July ....
20.06. Vacation pay and general pay:
(1) Amount: At the end of each week, the employer must
credit each employee with 10% of wages earned during the
week, such amount representing the vacation and general hol-
iday pay, or 6% for the compulsory annual vacation and 4% for
general holidays.
(2) Obligation of the employer: The employer must submit a
monthly report to the Board, showing amounts so credited to
each of his employees.
(3) Qualifying period: There are 2 qualifying periods:
(a) first: from 1 January to 30 April;
(b) second: from 1 May to 31 December.
(4) Payment for compulsory vacation and paid general
holidays:
(a) The Board must pay the employee the amount collected
for the first qualifying period by means of a cheque sent to the
last known address of the employee concerned within the first 8
days of the month of December of the current year.
(b) The Board must pay the employer [sic] the amount
collected for the second qualifying period by means of a cheque
sent to the last known address of the employee concerned
within the first 8 days of the month of July of the current year.
(e) No one may claim before 10 December or 10 July as the
case may be, the pay for compulsory annual vacations and
general holidays.
(d) Despite the provisions of paragraph c, following the death
of an employee, his legal heirs may claim the compulsory
annual vacation pay and the general holiday pay of the said
employee.
20.07. Interests: Interests on the amounts collected with
respect to compulsory annual vacations and general holidays
that have not been taken and within the limits of the Act must
be remitted to construction employees at a pro rata of the
amounts that they receive.
The applicant was laid off as a result of a work
shortage on December 13, 1985. He was recalled
to work on February 10, 1986. He was again laid
off, for the same reason, on the following Decem-
ber 12, and he returned to work on March 1, 1987.
During these two periods of unemployment, the
applicant claimed and received unemployment in
surance benefits. During December 1985 and
1986, the Office de la construction du Québec paid
him the compulsory annual vacation pay to which
he was entitled under the decree. The applicant
accordingly received $295.67 in December 1985
and $390 in December 1986. The respondent
Commission determined that this was vacation pay
paid with respect to the periods of winter vacation
provided in the decree, and as a result it allocated
the money in accordance with paragraph
58(13)(a) of the Unemployment Insurance
Regulations.' The applicant disputed this decision
It is useful to set out here subsection 58(13) of the Regula
tions as it then read, in its entirety:
(Continued on next page)
and appealed it to the Board of Referees. His
appeal was dismissed, and he appealed to this
Court.
The applicant argued first that the money that
he received from the Office de la construction was
not "earnings" within the meaning of section 57 of
the Unemployment Insurance Regulations, and
accordingly that the Commission did not have the
power to allocate this money under section 58.
Applicant based his submission on two arguments.
First, he said that the money in question had been
received and held on his behalf by the Office de la
construction du Québec, so that when the Office
paid it to him it was simply repaying his savings to
him. Secondly, he argued that the money in ques
tion had been paid to him in the circumstances
described in paragraph 57(3)(h) [as am. by SOR/
85-288, s. 1] of the Regulations, and accordingly
that it did not constitute earnings.
The applicant also submitted that in any event,
if we suppose that the pay he received constituted
earnings, it was earnings for the weeks of work
during which they were earned, so that they could
not be allocated to any weeks other than those.
I would like to examine each of these argu
ments, beginning with the latter, in reverse order
to the order I have just used.
(Continued from previous page)
58....
(13) Vacation pay of a claimant shall be allocated
(a) where it is paid or payable in respect of a specific vacation
period, to a number of consecutive weeks beginning with the
first week and ending with the last week of the vacation period;
(b) where it is not in respect of a specific vacation period and it
is paid or payable in respect of a lay-off or separation from
employment, to a number of consecutive weeks beginning with
the week in which the lay-off or separation occurs, in such a
way that the claimant's earnings in each of those weeks, except
the last, are equal to the weekly rate of his normal earnings
from his employer; and
(c) in any other case, to a number of consecutive weeks
beginning with the week in which it is paid or payable in such a
way that the amount of vacation pay allocated to each of those
weeks, except the last, is equal to the weekly rate of the
claimant's normal earnings from his employer.
1. If annual vacation pay is earnings, is it earnings
in the weeks of work or of unemployment?
While it is important in this case to determine
how to allocate the annual vacation pay received
by the applicant, subsection 26(2) of the Act
provides that the amount of unemployment insur
ance benefit must be reduced when the claimant
receives earnings in a week of unemployment. 2
The applicant says that subsection 26(2) only
applies in cases where the claimant has earnings
for a time that falls in a week of unemployment. In
the case at bar, he continues, the pay received was
earnings not for periods of unemployment, but for
periods of work, because the claimant earned it
while working. As a result, according to applicant,
this pay could not be allocated to other periods
than those in which it was earned, because the
Commission does not have the power to allocate
earnings to a week of unemployment which were in
fact earnings for a week of work.
The applicant bases this reasoning, which is
difficult to grasp, on the opinion of Chief Justice
Thurlow in Vennari v. Canada (Canada Employ
ment and Immigration Commission). 3 Vennari
had received vacation pay in circumstances that
were analogous to those in the case at bar. The
Chief Justice stated that if the vacation pay were
earnings, it was earnings for the weeks of work
during which it had been earned, and as a result
section 26 did not apply.
I must say, with a great deal of hesitation, that I
do not find the Chief Justice's reasoning to be
convincing. In my opinion, it does not take into
consideration the power of the Commission under
2 Subsection 26(2) reads as follows:
26....
(2) If a claimant has earnings in respect of any time that
falls in his waiting period, an amount not exceeding such
earnings may, as prescribed, be deducted from the benefits
payable in respect of the first three weeks for which benefits
are otherwise payable.
3 [1987] 3 F.C. 129 (C.A.).
the Act to allocate earnings. When paragraph
58(q) gives the Commission the power to make
regulations providing for the allocation of earnings
to weeks, 4 in my opinion, it gives it the power to
make regulations permitting it to determine the
week in which earnings were made. Accordingly,
when earnings are to be allocated to a week of
unemployment under section 58 of the Regula
tions, such earnings are deemed to be earnings for
that week even if, in fact, they were in payment for
work done previously. To argue the contrary
appears to me to be to deny the Commission the
power to allocate that the Act has given it, because
in reality an employee earns all money paid to him
by his employer, by working.
2. Paragraph 57(3)(h) of the Regulations
In order for section 26 of the Act to be applied,
of course, the claimant must have received earn
ings. In section 57 of the Regulations, the Com
mission has defined what constitutes earnings for
the purposes of section 26; in subsection 57(3) it
has provided that certain moneys received by the
claimant are not earnings, including, inter alia,
moneys described as follows in paragraph
57(3)(h):
57. (3) ...
(h) subject to subsection (3.1), where
(i) the effective date of commencement of a formal labour-
management agreement made specifically in respect of a
plant closure or a workforce reduction or the effective date of
commencement of a collective agreement is prior to Decem-
ber 31, 1984, or
(ii) the content of an employer's written policy respecting
moneys payable on severance of employment is established
by documents that show that such policy actually existed
prior to December 31, 1984,
any moneys that become payable to an employee pursuant to
that agreement or policy in respect of his severance from
employment, including severance pay, vacation pay, wages in
lieu of notice and moneys payable in respect of other
accumulated credits, during the period beginning on March 31,
1985 and ending on the earlier of March 26, 1988 and the
4 Paragraph 58(q) of the Act reads as follows:
58. The Commission may, with the approval of the Gover
nor in Council, make regulations
(q) defining and determining earnings for benefit pur
poses, determining the amount of such earnings, provid
ing for the allocation of such earnings to weeks and
determining the average weekly insurable earnings in
the qualifying weeks of claimants;
originally established expiry date of the agreement or
policy;...
The applicant contends that the pay he received
was paid to him under a collective agreement
(which was extended by the Decree) in effect
before December 31, 1984; accordingly, he argued,
this pay is not earnings, even though it is admitted
that it was not paid to him in relation to severance
from his employment. According to the applicant,
the words "in respect of his severance from
employment" in paragraph 57(3)(h) refer only to
money payable under a policy, and not money
payable under a collective agreement. The appli
cant bases this interpretation on the judgment of
Mr. Justice Stone in the Vennari case.'
It is true that in Vennari Mr. Justice Stone
adopted this interpretation of paragraph 57(3)(h).
However, as I have had occasion to note, 6 he based
this finding solely on the English version of the
Regulations. If the French version of this provision
had been brought to his attention, he would not
have decided as he did, because the French text
both dispels any ambiguity that the English ver
sion might contain and cannot be reconciled with
the interpretation he adopted. In light of this, it is
clear that Vennari was wrongly decided on this
point.
3. Was the pay paid to applicant by the Office de
la construction the applicant's savings?
Finally, I shall deal with applicant's main argu
ment, that is, that the annual vacation pay that he
received from the Office de la construction was not
earnings because it was in reality money that he
had saved, the Office having received and kept it
on his behalf.
This is not the first time that we have been
asked to consider the manner in which to allocate
vacation pay received during a period of unem
ployment by a worker covered by the Quebec
Construction Decree. Nor is it the first time that
we have heard the argument that I have just set
5 Supra, footnote 3, at p. 142.
6 See Vigneault v. Canada (Canada Employment and Immi
gration Commission), [1989] 1 F.C. 294 (C.A.).
out. It is primarily Umpires who have been asked
to rule on this point; they have decided on many
occasions that this pay should be allocated accord
ing to subsection 173(13) of the Regulations
(which later became subsection 57(13)). In 1977,
in CUB-4604 [Unemployment Insurance Com
mission v. Serge Baril], Mr. Justice Marceau, who
was then a judge of the Trial Division and was
sitting as an Umpire, explained this case law as
follows [at page 5]:
First, this income from employment is not paid to the
employee until it is remitted by the Board. One might at first
be hesitant about this point and wonder whether the Board
should not be regarded as an agent of the employee which has
been instructed to receive money for him and then to act rather
like a bank. Upon reflection, however, it is clear that this is not
the case. The Board acts solely as instructed by the Act, which
provides for a payment in two stages: from the employer to the
Board, freeing the debtor of his obligation; and from the Board
to the employee, cancelling the employee's credit. The employ
er's debt is payable throughout the year but the employee's
corresponding credit is not claimable until later, on specified
dates. This clearly requires the presence of a third party. It is a
most unusual situation but this is how the Act intended it to be
and under these conditions the powers of the third party cannot
be regarded as coming tacitly from one of the other two parties:
they come solely from the Act. It is clear that the employee has
no direct and immediately payable claim to vacation pay until
the date specified in the Decree and that the money involved is
not paid to him until it is remitted to him by the Board.
A similar problem with respect to vacation pay
received by a worker in Ontario was submitted to
this Court and then to the Supreme Court of
Canada in Bryden v. Canada Employment and
Immigration Commission.' The vacation pay in
question in that case, which had been received by
an employee named Bryden during a period of
unemployment, had been paid to him not under
the Quebec Construction Decree, but rather under
a collective agreement between the Union of which
he was a member and the Boilermakers Contrac
tors' Association. This agreement, which governed
the terms of employment for employees working in
various provinces, provided that the employers who
were members of the Association would pay vaca
tion pay to each employee based on the amount of
his gross wages, and that, except in Ontario, such
pay had to be included in the employee's weekly
earnings. The agreement added that Ontario
employers, such as Bryden's employer, had to pay
[1981] 2 F.C. 91 (C.A.); rev'd [1982] 1 S.C.R. 443.
this pay each month into a trust fund established
and managed by the Union. The trust agreement
provided that these payments would be received
from the various employers by the fund in trust
"on behalf of each employee", and that the trust
ees would administer these moneys and would
normally distribute them to each employee on
about June 15 and November 15. The trust agree
ment added that an employee could apply to the
trustees at any time during the year to remit his
vacation pay to him on another date.
Accordingly, Bryden had received the vacation
pay provided for in the trust agreement and in the
collective agreement from the trustees during a
period of unemployment. The Commission had
allocated this money in accordance with subsection
173(16) of the Regulations, concerning the alloca
tion of vacation pay, to the week during which the
money was paid to Bryden and to the following
weeks.
Both in this Court and in the Supreme Court,
Bryden contended that the trustees had received
payment of the money representing his vacation
pay on his, Bryden's, behalf, and accordingly that
by paying him the money the trustees had merely
been returning his own savings to him. This argu
ment was rejected by this Court, which found that
Bryden had received his vacation pay only at the
time when it had been paid to him by the trustees.
That decision was reversed by the Supreme Court
of Canada, which held that at the moment when
the vacation pay was received by the trustees
Bryden had acquired sufficient interest in this
money that it could be said that at that moment
the money represented his savings which the trus
tees were holding and administering on his behalf.
Thus by paying Bryden the trustees were not
paying him vacation pay, but rather were remit
ting his savings to him. In making this finding, the
Court noted that in that case, as in this, the
employer had deducted from the amounts payable
to the trustees the income tax payable by the
employee, as well as his share of unemployment
insurance premiums; it also noted that according
to the trust agreement the vacation pay that was
normally payable on fixed dates could be applied
for by the employees on another date as an
exception.
Following this decision of the Supreme Court,
we were called upon in the Daigle case 8 to decide
on the allocation of compulsory vacation pay
received by an unemployed employee under the
Quebec Construction Decree. Daigle relied on the
Bryden decision in support of his argument that
the money that he had received from the Office de
la construction du Quebec could not be allocated
like vacation pay, because it actually represented
his own savings. Speaking for the Court, I rejected
this argument for the following reasons [at page
2]:
This would be a persuasive argument if the case at bar were
identical to Bryden, but that is not so. It is true that in Bryden,
as in the case at bar, amounts were paid by the employer to a
third party which was then to pay them to the employees. In
Bryden, however, the employees were entitled to withdraw
these amounts before their vacation period: that is not the case
here. Further, the case at bar does not involve, as did Bryden,
payments made pursuant to an arrangement of a purely con
tractual nature: these are payments made under a decree of a
legislative nature, which sets a compulsory date for vacation in
the construction industry and provides procedures for
employees in that industry to receive vacation pay.
In 1985, clearly intending to avoid seeing the
Bryden decision applied in future, the Commission
amended subsection 58(14) of the Regulations so
as to provide for allocation, where "vacation pay is
paid into a trust", of money paid to a claimant in
accordance with the terms of the trust. This
amendment was in effect when the Vennari case
arose. 9 Like Bryden, Vennari was from Ontario.
He was also covered by a collective agreement
similar to the one governing Bryden's terms of
employment, and he had received vacation pay in
the same circumstances as Bryden. The Commis
sion had allocated this money in the manner pro
vided in the new subsection 58(14) of the Regula
tions. The Court set aside the decision of the
Umpire, who had upheld the allocation. It stated,
first, as the Supreme Court had decided in Bryden,
that by paying the employee the trustees had
s Daigle v. Employment and Immigration Commission,
unreported decision dated January 19, 1984, No. A-547-83.
9 Supra, footnote 3.
merely returned his savings to him; accordingly it
decided that this payment was not earnings within
the meaning of section 57 of the Regulations and
that it could not be allocated under section 58
because the only money that could be allocated
under that section was earnings within the mean
ing of section 57.
The applicant today relies on the Bryden and
Vennari decisions and states that, contrary to what
we decided in Daigle, these decisions must be
applied to compulsory vacation pay paid to
employees under the Quebec Construction Decree.
In other words, the applicant disputes our decision
in Daigle.
This issue must be examined carefully. It is
certainly desirable that the jurisprudence of this
Court demonstrate an element of consistency, and
accordingly we normally follow the decisions that
we have rendered in the past. It is even more
important, however, that everyone coming before
the courts in situations that are truly identical
should be dealt with in the same way. Accordingly,
if the effect of our decision in Daigle was to create
an artificial distinction between construction work
ers in Quebec and in Ontario, we should put an
end to this undesirable situation and acknowledge
that we erred in the Daigle case.
I must admit that, upon reflection, the reasons
that I gave for "distinguishing" the Daigle case
from the Bryden case appear to me today not to be
convincing.
It is true that the vacation pay received by
Bryden was payable under a collective agreement,
while the pay received by Daigle was payable
under a decree. But was this really a significant
difference? Certainly the decree is a document of
a legislative nature, but it is based on a freely
negotiated collective agreement. Furthermore, in
so far as the employee is concerned, the terms of
employment provided in a collective agreement are
imposed on him just as those provided in the
decree are imposed on him.
It is also true that Bryden was entitled under the
trust agreement to withdraw his vacation pay on a
different date from the date normally provided.
This was certainly an indication that the trustee
held this money on the employee's behalf. In
Quebec, under the decree, employees can claim
payment of the annual vacation pay only on the
dates provided. The reason for this may be that in
Quebec, in the construction industry, the decree
imposes compulsory annual vacation, the date of
which is established by the decree. We cannot
conclude from this difference that the money held
by the Office de la construction which it receives
from employers is not held on the employee's
behalf. The evidence is that, as the decree states,
"Interests on the amounts collected with respect to
compulsory annual vacations ... that have not
been taken and within the limits of the Act [sic]
must be remitted to construction employees at a
pro rata of the amounts that they receive." If the
employees are entitled to interest on the money
that the Office receives from employers, it appears
to me that this is because the Office is holding this
money on their behalf.
I find that I erred in stating in the Daigle case
that the Bryden decision did not apply to annual
vacation pay paid under the Quebec Construction
Decree. It appears to me that the rights of a
construction worker in Quebec to the money held
by the Office de la construction are similar, if not
identical, to those of workers in Ontario who are
governed by a collective agreement like the agree
ments in issue in Bryden and Vennari. According
ly, they should be treated in the same way.
The respondent, of course, argued the contrary.
She did not, however, attempt to demonstrate that
the "distinctions" that I made in the Daigle case
between the situation of construction workers in
Quebec and in Ontario were meaningful. Her pri
mary argument was to point out that if the Bryden
case were applied in Quebec, construction workers
who receive annual vacation pay during a period of
unemployment will be entitled to unemployment
insurance benefits, despite the fact that they are
receiving exactly the same financial benefits as
they would have received if they were still
employed. The respondent submitted that this
would be an unacceptable result.
This is certainly, in my opinion as well, a highly
unusual result. However, it is a necessary conse
quence of the Bryden decision, which we are bound
to apply regardless of the results.
I would allow the appeal, I would set aside the
decision impugned and refer the matter back to
the Board of Referees for determination, this time
on the basis that the compulsory annual vacation
pay received by applicant from the Office de la
construction du Québec is not earnings within the
meaning of section 57 of the Unemployment In
surance Regulations.
LACOMBE J.: I concur.
DESJARDINS J.: I concur.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.