Date: 19990528
Docket: 98-1062-UI
BETWEEN:
ANGELA MURPHY,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Reasons for judgment
Bonner, J.T.C.C.
[1] The Appellant appeals to this Court from a decision made on an appeal to the Minister of National Revenue ("Minister") under section 90 of the Employment Insurance Act ("Act"). The notification of the decision of the Minister which was sent to the Appellant under subsection 93(3) of that Act stated:
" ...
It has been decided that you were engaged in insurable employment from January 9, 1997 to March 22, 1998 while employed with Lennox & Addington County General Hospital Association. It was also decided that you had 677 insurable hours of employment during the period.
...
The decision in this letter is issued pursuant to subsection 93(3) of the Employment Insurance Act and is based on paragraph 5(1)(a) of the Employment Insurance Act and section 10 of Employment Insurance Regulations."
[2] It is the portion of the decision of the Minister regarding hours of insurable employment which is in issue before this Court. The finding that the Appellant had 677 such hours rests on a conclusion that hours when the Appellant served the hospital in "standby" status are not hours of insurable employment.
[3] The Appellant was employed as an x-ray technician by the hospital referred to in the Minister's decision. During the period in issue she worked in the usual way in the x-ray department located at the hospital premises. For that she was paid at an hourly rate of approximately $18.00. In addition she worked standby hours. Standby shifts extend from 10:00 p.m. to 8:00 a.m. the next day. Standby duty at the hospital is divided among four x-ray technicians. The hospital posts a calendar naming the worker who is on standby duty each night. If x-ray services are required after 10:00 p.m., a person on the staff at the hospital calls the technician who is on standby that night. The technician is required when on standby to:
a) remain close to a telephone and keep the hospital informed of the number at which he or she can be reached; and
b) stay sufficiently close to the hospital to permit him or her to reach the hospital within a maximum period of twenty-five minutes.
A technician is paid at the rate of $2.50 per hour for time spent on standby duty if he or she is not called in to the hospital. If called in, the technician is paid at a considerably higher rate.
[4] The decision in this appeal must turn on the meaning to be ascribed to the words "...the number of hours that the person actually worked...". Those words are found in section 9.1 of the Employment Insurance Regulations ("Regulations") which reads:
9.1 Where a person's earnings are paid on an hourly basis, the person is considered to have worked in insurable employment for the number of hours that the person actually worked and for which the person was remunerated.
[5] The authority to enact the Regulation is found in subsections 6(3) and 55(1) of the Act. Those provisions are found in Part I of the Act dealing with unemployment benefits. They read:
6(3) For the purposes of this Part, the number of hours of insurable employment that a claimant has in any period shall be established as provided under section 55, subject to any regulations made under paragraph 54(z.1) allocating the hours to the claimant's qualifying period.
55(1) The Commission may, with the approval of the Governor in Council, make regulations for establishing how many hours of insurable employment a person has, including regulations providing that persons whose earnings are not paid on an hourly basis are deemed to have hours of insurable employment as established in accordance with the regulations.
[6] It was the position of the Respondent that Mrs. Murphy was free to do what she wished during her standby hours. She could stay at home, take care of her children or even sleep at night. Counsel for the Respondent submitted that this is not working in the sense of "actually" working within section 9.1 of the Regulations. Further, counsel argued that "actually" working in the case of the Appellant requires the Appellant's presence at the hospital and the performance by her of the work of an x-ray technician. Counsel sought to support her interpretation of section 9.1 by reference to Stubart Investments Limited v. The Queen,[1] a case in which the Supreme Court of Canada expressed approval of the following passage from Dreidger:[2]
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
Counsel did not point to any element of the legislative scheme which would support the proposition that hours "actually" worked do not include hours when the employee works outside the hospital premises or hours when the employee's duties are less onerous than normal.
[7] The Appellant argued that she was performing services while on standby, for, by remaining close to a telephone and within a twenty-five minute range of the hospital, she was doing what was required of her by the employer in exercise of the rights of the employer under the contract of employment and, in particular, the part of that contract relating to standby duty. As well, the Appellant pointed out that wages paid for hours worked on standby duty were treated as insurable earnings in respect of which an employee's premium was payable under the Act and she argued that in those circumstances it was inappropriate to treat such hours as something other than hours worked in insurable employment.
[8] In considering the interpretation of section 9.1 it must be remembered that it is subordinate legislation. The Regulation is intended to compliment the Employment Insurance Act and cannot be interpreted so as to amend, alter or cut down the parent legislation. In my opinion it is not possible to interpret the section 9.1 term "hours that the person actually worked" to produce fewer hours than that person's "number of hours of insurable employment" as that term is used in subsection 6(3) and elsewhere in the Act.
[9] The appellant's employment by the hospital was, no doubt, insurable employment under paragraph 5(1)(a) of the Act. Consequently the hospital was obliged under paragraph 82(1)(a) of the Act to deduct, and it did deduct, employee's premiums from remuneration "... for any period for which the remuneration is paid ...". Paragraph 82(1)(a) reads:
82. (1) Every employer paying remuneration to a person they employ in insurable employment shall
(a) deduct the prescribed amount from the remuneration as or on account of the employee's premium payable by that insured person under section 67 for any period for which the remuneration is paid;
Here each hour of standby time is clearly a period for which remuneration was paid. If employment is insurable employment then every hour worked in that employment must be an hour worked in insurable employment. It is difficult to see how it can be argued, absent some kind of colorable arrangement, that an hour during which an employee was doing what was lawfully required of her by the employer and for which payment was made and a premium collected is not an hour of insurable employment. The considerations on which the Respondent relied, place of work and difficulty of the task assigned are, in my opinion, irrelevant.
[10] The appeal is therefore allowed and the decision under appeal is varied by the addition to the 677 hours mentioned in the decision of each hour of standby duty during the period.
Signed at Ottawa, Canada this 28th day of May 1999.
"Michael J. Bonner"
J.T.C.C.