Date: 19980227
Docket: A-111-97
CORAM: STONE, J.A.
| DÉCARY, J.A. |
| ROBERTSON, J.A. |
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
- and -
BRUCE JOHN RADELET
Respondent
Heard at Vancouver, British Columbia, Friday the 27th day of February, 1998
Judgment delivered at
Vancouver, British Columbia, Friday the 27th day of February, 1998
REASONS FOR JUDGMENT BY: ROBERTSON, J.A.
Date: 19980227
Docket: A-111-97
CORAM: STONE, J.A.
DÉCARY, J.A.
ROBERTSON, J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
- and -
BRUCE JOHN RADELET
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the bench at
Vancouver, British Columbia on February 27, 1998)
ROBERTSON, J.A.
[1] By letter dated May 25, 1995, the Unemployment Insurance Commission informed the respondent that he was not eligible to receive unemployment insurance benefits as he was in receipt of a separation package totalling $6,312.00. That amount included $5,705.80 in severance pay and $606.30 in vacation pay. Before that letter was sent, the employer had acknowledged to the Commission that the amount of $5,705.80 in severance pay was "still owing" to the respondent. It was also clear that the amount of $606.30 in vacation pay was then owing under the laws of British Columbia. Having regard to the respondent's weekly wage rate the Commission "allocated" the severance monies with the effect of deferring the date on which the respondent would be entitled to unemployment benefits. On June 7, 1995, the respondent appealed the Commission's determination to the Board of Referees on the ground that the severance monies were not "paid or payable" as of May 25, 1995, as contemplated by subsection 58(9) of the Unemployment Insurance Regulations. However, on June 9, 1995, the respondent accepted his employer's offer of severance in the amount of $5,705.80.
[2] In a decision dated July 14, 1995, the Board upheld the Commission's decision, finding that the money paid or payable as severance pay should be allocated pursuant to sections 57 and 58 of the Regulations. The respondent appealed the Board's decision to the Umpire. The Umpire allowed the appeal on the ground that no money was paid or payable to the respondent as of May 25, 1995, the date the Commission made the allocation. In our respectful opinion the learned Umpire erred.
[3] While it is arguable that the allocation decision made on May 25, 1995, was not in accordance with the Regulations, it is also true that the Commission is entitled to allocate monies subsequently "paid or payable" beginning with the week of the lay-off or separation from employment. In this regard, subsection 58(9) of the Act is relevant and reads as follows:
| 58.(9) Subject to subsection (9.1) and (10), all earnings paid or payable to a claimant by reason of a lay-off or separation from an employment shall, regardless of the nature of the earnings or the period in respect of which the earnings are purported to be paid or payable, be allocated to a number of weeks that begins with the week of the lay-off or separation from employment in such a manner that the total earnings of the claimant from that employment are, in each consecutive week except the last, equal to the claimant's normal weekly earnings from that employment. |
[4] The above provision makes it clear that as of June 9, 1995, the date the respondent received the severance money, the Commission was entitled to make the required allocation retroactive to the date beginning with his lay-off from employment. In short, the respondent has no ground for complaint and the Board was correct in deciding as it did in favour of the Commission. Finally, the decision of this Court in Clegg v. (Umpire, Unemployment Insurance Act), [1990] F.C.J. No. 434, (unreported decision dated May 10, 1990 in A-313-89) held that an Umpire is entitled to take into account the subsequent acceptance of an offer in determining whether an amount is subject to allocation when reviewing the Board's decision. Accordingly, the Umpire erred in law in finding that the vacation and severance payments were not "paid or payable" to the respondent for the purposes of allocation pursuant to subsection 58(9) of the Regulations.
[5] The application for judicial review will be allowed, the decision of the Umpire, dated December 10, 1996, set aside and the matter remitted to the Chief Umpire or his designate for redetermination on the basis that the appeal from the Board of Referees be dismissed.
(Sgd.) "J. T. Robertson"
J.A.
FEDERAL COURT OF APPEAL
Date: 19980227
Docket: A-111-97
BETWEEN:
THE ATTORNEY GENERAL OF CANADA,
Applicant,
- and -
BRUCE JOHN RADELET,
Respondent.
REASONS FOR JUDGMENT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: A-111-97
STYLE OF CAUSE: ATTORNEY GENERAL OF CANADA
Applicant
- and -
BRUCE JOHN RADELET
Respondent
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: February 27, 1998
REASONS FOR JUDGMENT OF THE COURT BY: ROBERTSON, J.A.
| CONCURRED IN BY: DÉCARY, J.A. |
| STONE, J.A. |
DATED: February 27, 1998
APPEARANCES:
| Mr. G. G. Hall for the Applicant |
| Ms. Leigh Taylor for the Respondent |
SOLICITORS OF RECORD:
| Mr. G. G. Hall for the Applicant |
| Barrister and Solicitor |
| George Thomson for the Respondent |
Deputy Attorney General of Canada