Date: 20000420
Docket: 1999-238-EI
BETWEEN:
CAMILLE MASSICOTTE,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Reasons for Judgment
CUDDIHY, D.J.T.C.C.
[1] This appeal was heard on March 15, 2000, at Montréal, Quebec.
I- The Appeal
[2] The appellant (the "worker") has instituted an appeal from the decision of the Minister of National Revenue (the "Minister") of October 23, 1998 determining that the amounts for compulsory annual vacation and statutory holidays which were paid to the worker following his employment with Transelec Inc., the payer, from June 19 to July 1, 1997 did not give rise to any insurable hours of employment for the purposes of paragraph 5(1)(a) of the Employment Insurance Act (the "Act") and section 9.1 and subsection 10.1(1) of the Employment Insurance Regulations (the "Regulations").
II- Summary of Facts
[3] The respondent submitted the facts on which he based his decision in his Reply to the Notice of Appeal. Paragraph 6 of his Reply reads as follows:
[TRANSLATION]
(a) the appellant worked for the payer as an electrician;
(b) the appellant's working conditions were governed by four sectoral collective agreements (hereinafter called the "Decree") for the Quebec construction industry;
(c) the appellant was remunerated on the basis of the number of hours he worked;
(d) on July 9, 1997, the payer issued to the appellant a record of employment for the period from June 19 to July 1, 1997 indicating 139 insurable hours and insurable earnings of $6,087.17;
(e) the payer was required to remit to the Commission de la construction du Québec a sum equal to 11% (hereinafter called the "amounts") of the wages earned by the appellant each week;
(f) the 11% broke down as follows: 6% for compulsory vacation leave and 5% for statutory holidays;
(g) the amounts represented a percentage of wages earned;
(h) under the sectoral collective agreement, the workers were on vacation from July 13 to 26, 1997 and from December 21, 1997 to January 3, 1998;
(i) there was no employer-employee relationship between the appellant and the payer during the compulsory vacation periods provided for under the sectoral collective agreement;
(j) the Commission de la construction du Québec was required to pay the amounts to the appellant on the dates provided for in the sectoral collective agreement;
(k) when on leave, the appellant was not paid by the payer but by the Commission de la construction du Québec;
(l) the appellant received no remuneration from the payer during the compulsory vacation periods.
[4] Through his counsel, the appellant admitted the facts alleged in subparagraphs (a) to (j) and (l) and denied subparagraph (k).
III- The Law
[5] Definitions in the Employment Insurance Act
"employment"
"employment" means the act of employing or the state of being employed;
"insurable earnings"
"insurable earnings" means the total amount of the earnings, as determined in accordance with Part IV, that an insured person has from insurable employment;
"insurable employment"
"insurable employment" has the meaning assigned by section 5;
5.(1) Subject to subsection (2), insurable employment is
(a) employment in Canada by one or more employers, under any express or implied contract of service or apprenticeship, written or oral, whether the earnings of the employed person are received from the employer or some other person and whether the earnings are calculated by time or by the piece, or partly by time and partly by the piece, or otherwise;
. . .
[6] INSURABLE EARNINGS AND COLLECTION
OF PREMIUMS REGULATIONS
1. (1) The definitions in this subsection apply in these Regulations.
"Act" means the Employment Insurance Act. (Loi)
. . .
"pay period" means the period in respect of which earnings are paid to or enjoyed by an insured person. (période de paie)
. . .
Earnings from Insurable Employment
2. (1) For the purposes of the definition "insurable earnings" in subsection 2(1) of the Act and for the purposes of these Regulations, the total amount of earnings that an insured person has from insurable employment is
(a) the total of all amounts, whether wholly or partly pecuniary, received or enjoyed by the insured person that are paid to the person by the person's employer in respect of that employment, and
. . .
(2) For the purposes of this Part, the total amount of earnings that an insured person has from insurable employment includes the portion of any amount of such earnings that remains unpaid because of the employer's bankruptcy, receivership, impending receivership or non-payment of remuneration for which the person has filed a complaint with the federal or provincial labour authorities, except for any unpaid amount that is in respect of overtime or that would have been paid by reason of termination of the employment.
(3) For the purposes of subsections (1) and (2),
. . .
[7] Employment Insurance Regulations
PART I
UNEMPLOYMENT BENEFITS
Hours of Insurable Employment - Methods of Determination
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. SOR/97-31, s. 3.
9.2 Subject to section 10, where a person's earnings or a portion of a person's earnings for a period of insurable employment remains unpaid for the reasons described in subsection 2(2) of the Insurable Earnings and Collection of Premiums Regulations, the person is deemed to have worked in insurable employment for the number of hours that the person actually worked in the period, whether or not the person was remunerated. SOR/97-310, s. 2.
. . .
10.1 (1) Where an insured person is remunerated by the employer for a period of paid leave, the person is deemed to have worked in insurable employment for the number of hours that the person would normally have worked and for which the person would normally have been remunerated during that period.
(2) Where an insured person is remunerated by the employer for a period of leave in the form of a lump sum payment calculated without regard to the length of the period of leave, the person is deemed to have worked in insurable employment for the lesser of
(a) the number of hours that the person would normally have worked and for which the person would normally have been remunerated during the period, and
(b) the number of hours obtained by dividing the lump sum amount by the normal hourly rate of pay.
(3) Where an insured person is remunerated by the employer for a non-working day and
(a) works on that day, the person is deemed to have worked in insurable employment for the greater of the number of hours that the person actually worked and the number of hours that the person would normally have worked on that day; and
(b) does not work on that day, the person is deemed to have worked in insurable employment for the number of hours that the person would normally have worked on that day. SOR/97-31, s. 5
10.2 For the purposes of sections 9.1, 10, 10.1 and 22,
(a) an hour of work performed in insurable employment is considered to be a single hour of insurable employment, even if the hour is remunerated at an overtime rate of pay; and
(b) if the addition of hours of insurable employment falling between the first day and the last day worked in a given period of employment results in a total number of hours that contains a fraction of an hour, the fraction shall be counted as a whole hour. SOR/97-31, s. 5.
. . .
[8] COLLECTIVE AGREEMENT, INSTITUTIONAL AND COMMERCIAL SECTOR
[TRANSLATION]
SECTION XIX
COMPULSORY ANNUAL VACATION, STATUTORY HOLIDAYS AND PAY RELATED THERETO
19.01 Compulsory annual vacations: Each year, every employee is entitled to four weeks' compulsory annual vacation to be taken as follows:
(1) Summer: All construction job sites must close down during the last two full calendar weeks in July, more specifically between the following dates:
. between 0:01 hours on July 13, 1997 and 24:00 hours on July 26, 1997.
. . .
(3) Winter: All construction job sites must be closed down for two full weeks during the Christmas and New Year's holiday period, more specifically between the following dates:
. between 0:01 hours on December 21, 1997 and 24:00 hours on January 3, 1998.
. . .
Emergency work during compulsory annual vacations:
. . .
Prohibited work, permitted work and repair and maintenance work during compulsory annual vacations:
. . .
Statutory holidays:
. . .
19.05 Pay for compulsory annual vacations and statutory holidays:
(1) Amount of pay: At the end of each week, the employer shall credit to each of its employees, as pay for compulsory annual vacation and for statutory holidays, an amount equal to 11% of wages earned during that week, that is, 6% for compulsory annual vacation and 5% for statutory holidays.
(2) Employer's obligation: The employer shall remit with its monthly report to the Commission the amounts credited to each of its employees.
(3) Reference periods: There are two reference periods:
(a) from January 1 to June 30, and
(b) from July 1 to December 31.
(4) Payment of amount for compulsory annual vacation and statutory holidays:
(a) The Commission shall pay the employee the amount collected for the first reference period by means of a cheque sent by mail to the employee's last known address in the last eight days of November of the current year.
(b) The Commission shall pay the employee the amount collected for the second reference period by means of a cheque sent by mail to the employee's last known address in the last eight days of June of the following year.
(c) No person may claim the pay for compulsory annual vacation and statutory holidays before December 1 or July 1, as the case may be.
(d) Notwithstanding subparagraph (c), upon the death of an employee, that employee's legal heirs may claim his pay for compulsory annual vacation and statutory holidays.
19.06 Interest: Interest on amounts collected in respect of compulsory annual vacation and statutory holidays which are not used for the purposes and within the limits permitted by law shall be paid to the employee in proportion to the amounts that employee receives.
. . .
[9] The appellant worked for the payer as an electrician.
[10] The appellant was remunerated on the basis of the number of hours he worked.
[11] The appellant's working conditions were governed by the sectoral collective agreement for the Quebec construction industry (Exhibit A-1).
[12] The payer was required to remit an amount equal to 11 percent of the wages earned by the appellant each week to the Commission de la Construction du Québec.
[13] This amount represented a percentage of the wages earned, that is, 6 percent for compulsory annual vacation and 5 percent for statutory holidays.
[14] Under the sectoral collective agreement, the workers were on vacation from July 13 to 26, 1997 and from December 21, 1997 to January 3, 1998.
[15] On July 9, 1997, the payer issued a record of employment to the appellant for the period from June 19 to July 1, 1997, indicating 139 insurable hours and insurable earnings of $6,087.17.
[16] The Commission de la Construction du Québec was to pay the appellant the amounts remitted on the dates provided for in the sectoral collective agreement.
[17] There was no employer-employee relationship between the appellant and the payer during the compulsory vacation periods provided for in the sectoral collective agreement.
[18] The appellant received no remuneration from the payer during the compulsory vacation period.
[19] During the compulsory vacation period, the appellant received the amounts described above from the Commission de la construction du Québec.
Appellant's Arguments
[20] Michel Letreiz, counsel for the appellant, submitted his arguments, then filed with the Court a written brief succinctly setting out the appellant's point of view as follows:
[TRANSLATION]
The point at issue in the instant case is whether a worker governed by a collective agreement negotiated under the Act respecting labour relations, vocational training and manpower management in the construction industry may be credited with hours of insurable employment for the remuneration paid to him as pay for annual leave (vacation) and statutory holidays.
This question has arisen since the coming into force of the Employment Insurance Act (S.C. 1996, c. 23) amending the eligibility for benefit regime, which is now based on the number of hours of insurable employment rather than the number of weeks of insurable employment.
Parliament has moreover deemed it necessary to specify, by regulation, certain methods for establishing hours of insurable employment, in particular as regards the remuneration paid for vacation and statutory holidays.
Section 10.1 of the Employment Insurance Regulations (SOR/96-332) provides:
10.1(1) Where an insured person is remunerated by the employer for a period of paid leave, the person is deemed to have worked in insurable employment for the number of hours that the person would normally have worked and for which the person would normally have been remunerated during that period.
(2) Where an insured person is remunerated by the employer for a period of leave in the form of a lump sum payment calculated without regard to the length of the period of leave, the person is deemed to have worked in insurable employment for the lesser of
(a) the number of hours that the person would normally have worked and for which the person would normally have been remunerated during the period, and
(b) the number of hours obtained by dividing the lump sum amount by the normal hourly rate of pay.
(3) Where an insured person is remunerated by the employer for a non-working day and
(a) works on that day, the person is deemed to have worked in insurable employment for the greater of the number of hours that the person actually worked and the number of hours that the person would normally have worked on that day; and
(b) does not work on that day, the person is deemed to have worked in insurable employment for the number of hours that the person would normally have worked on that day.
Thus it may be seen from a simple reading of these provisions that Parliament clearly intended that workers be credited with hours of insurable employment in respect of remuneration paid to them for vacation and statutory holidays.
A question thus arises as to the application of these provisions to the amounts received by construction workers in Quebec under the sectoral collective agreement applicable to them. It should be pointed out briefly that, in recent years, the Construction Decree, which was applicable to all construction workers, has been replaced by four collective agreements, one of which will apply to a worker depending on the sector in which he works (the civil engineering sector, the industrial sector, the institutional and commercial sector or the residential sector).
These amendments to the labour relations regime applicable to construction workers have not, however, changed the method of remunerating the annual leave and statutory holidays provided for in the collective agreements.
It must be noted here, however, that the annual vacation and statutory holiday pay scheme dealt with in this brief does not cover the workers of the residential construction sector, since at the time this brief was written no collective agreement had yet been concluded for that sector between the Association provinciale des constructeurs d'habitation du Québec (A.P.C.H.Q.) and the representative union associations.
Having clarified this point, we think it essential to now recall briefly the history of the implementation of this exceptional regime which has applied to construction industry workers for several decades.
This regime was put in place to correct a number of deficiencies as a result of which a number of workers were often deprived of all vacation pay mainly as a consequence of construction workers' high degree of mobility. Indeed, it has long been acknowledged that a large proportion of workers in the construction industry work for a number of different employers in the course of a single year, depending on the contracts obtained by those employers. As a result of this situation, at annual vacation time, workers had to run from one employer to another to claim their vacation pay, which very often could not be recovered either because the employer was insolvent or had simply disappeared.
The Quebec legislator thus decided a number of years ago to correct the situation by introducing a special regime under which the vacation pay amount would be paid every week and remitted to a third party who would hold it in trust for and on behalf of the workers and would pay them this vacation pay twice a year.
So it is in this context that the collective agreements provide that every employee shall have four weeks of compulsory annual vacation each year (two weeks in summer and two weeks in winter) as well as a certain number of statutory holidays. Thus each week, in addition to paying them their normal wages, the employer is required to pay each worker an amount equal to 11% of wages earned during that week in respect of vacation pay (6%) and statutory holiday pay (5%). The employee is taxed on these payments and pays all the statutory premiums and contributions but does not actually receive the money since the employer must remit it to the Commission de la construction du Québec, which holds it on behalf of the employee and pays it to him on the dates provided for in the collective agreements. The relevant articles of the collective agreements are appended hereto.
The exceptional regime applicable to workers in the construction industry was analyzed by the Federal Court of Appeal for the purpose of ruling on the allocation of the amounts in question under the unemployment insurance scheme (Giroux v. Canada (Employment and Immigration Commission), A-527-87, April 15, 1988).
In that case, Pratte J., writing for the Court, held that the amounts received by a construction worker could not be earnings at the time they were paid by the Commission de la construction du Québec since it merely remitted to the employees their own savings. This reasoning by the Federal Court of Appeal confirmed with respect to Quebec construction industry workers the reasoning adopted by the Supreme Court of Canada in Bryden, [1982] 1 S.C.R. 443, and reaffirmed by the Federal Court of Appeal in Vennari, [1987] 3 F.C. 129.
The point to be taken from these decisions is that the amounts paid by a trustee to an employee as vacation pay cannot be considered to be earnings at the time they are paid. Instead these amounts constitute earnings at the time the employer pays them to the employee since that is when the employee is taxed on those amounts and pays employment insurance premiums.
It is thus in this specific context that one must determine the application of section 10.1 of the Employment Insurance Regulations to the amounts paid to an employee by his employer each week in respect of annual vacation and statutory holidays.
As it is clear that this remuneration paid to an employee every week constitutes a lump sum payment made by an employer for a future vacation period and does not directly reflect the length of the vacation period since it corresponds to a percentage of wages, it is submitted that subsection 10.1(2) of the Employment Insurance Regulations must apply.
More particularly, and in a context of fairness for all construction workers, it is submitted that it would be fair to apply paragraph (b), which provides that the number of hours credited shall be calculated by dividing the lump sum amount by the normal hourly rate of pay.
We believe that such application of the Regulations would be fair and equitable for everyone since the number of hours credited would be based on the number of hours of work per week and on the number of work weeks per year for each construction worker.
It is further submitted that application of the Regulations in accordance with the above comments is consistent with the wording of section 10.1 of the Regulations and with the intent of Parliament. This interpretation furthermore makes it possible to reconcile the wording of the Regulations with the Federal Court of Appeal's decision in Giroux, supra.
In closing, we take the liberty of illustrating by means of the following example the interpretation just set out:
In one week, a construction worker works 40 hours for one employer at $20 an hour. He receives total insurable earnings of $888 (40 hours X $20 = $800 in wages + $800 X 11% = $88 for annual vacation and statutory holiday pay).
The vacation pay of $88 should be divided by the worker's hourly wage of $20 to determine his credit of hours of insurable employment. We thus obtain a credit of 4.4 hours which should be added to his 40 hours of work, for a total of 44.4 hours of insurable employment during the week in question.
It is therefore submitted that this method for determining the hours of insurable employment relating to annual vacation and statutory holiday pay for construction workers should be used by the Minister in the interest of justice and fairness for all and to prevent construction industry workers from being penalized relative to workers in other sectors as a result of the special vacation pay scheme which is applicable to them for the historical reasons which we have described in this brief.
Michel Letreiz
Counsel, F.I.P.O.E.
Respondent's Arguments
[21] Mounes Ayadi, counsel for the respondent, contended that the compulsory annual vacation and statutory holiday pay generates no insurable hours.
[22] The record of employment shows 139 insurable hours. The 11 percent vacation pay amount does not give the appellant additional insurable hours.
[23] Subsections 10.1(1) and (2) of the Employment Insurance Regulations describe a situation in which an employer makes a payment to an employee, regardless of whether it is a lump sum or other amount, for a vacation period.
[24] For it to be said that wages were paid during a vacation period, the person so paid must be employed at the time of that vacation.
[25] Section 10.1 can apply only if there is an employer-employee relationship between the parties at the time of the vacation, in which case the remuneration paid by the employer would correspond to that vacation period.
[26] In the instant case, there is no employer-employee relationship between the appellant and the payer. It was admitted that there was no such relationship between them during the compulsory vacation periods.
[27] Thus, if a person is not employed during a given period, it cannot be said that that person is on vacation. For a person to be on vacation, he must necessarily be employed.
[28] Counsel adds that, when the Commission de la construction pays out the vacation pay amount during the compulsory vacation periods, that payment does not constitute earnings.
[29] Furthermore, when the vacation pay amount is credited each week by the employer, it is during that period that the wages were earned by the appellant.
[30] The decisions in Bryden,[1]Giroux[2] and Vennari[3] confirm that the amount paid is not vacation pay, but rather savings accumulated by the employee while working.
[31] Thus, given that the 11 percent constitutes savings accumulated during the employment period, in concrete terms the appellant worked from June 19 to July 1, 1997 and received his normal hourly wage and also the vacation pay amount.
[32] Counsel for the respondent also asks the following questions. Is there any provision in the Act under which the appellant may be given additional hours during the period when he was employed by the payer? How are insurable hours calculated when the person is employed?
[33] Section 9.1 of the Employment Insurance Regulations provides the answer.
[34] The appellant was paid by the hour and he worked 139 hours. This is the number of hours that he actually worked and for which he was remunerated. In Mr. Ayadi's view, the appellant cannot be credited with additional hours on the basis of the vacation pay amount.
[35] He adds that section 10.2 of the Employment Insurance Regulations confirms his reasoning.
[36] This section sets out the rules that apply for the purposes of sections 9.1, 10, 10.1 and 22. Paragraph 10.2(a) states that an hour of work performed in insurable employment is considered to be a single hour of insurable employment, even if the hour is remunerated at an overtime rate of pay.
[37] In conclusion, since the vacation pay amount is considered as remuneration earned during the weeks of employment, no additional insurable hours may be credited under section 9.1 of the Employment Insurance Regulations for the 11 percent vacation pay amount.
[38] The appellant is deemed to hold insurable employment solely for the hours he actually worked.
Michel Letreiz's Rebuttal
[39] In rebuttal of Mr. Ayadi's two arguments, Mr. Letreiz stated the following, at page 63 ff. of the transcript:
[TRANSLATION]
What we argue is that this is a credit of hours that must be added to his hours each week and, thus, during that week, when the amount was paid, there was an employer-employee relationship between Mr. Massicotte and Transelec. So the employer-employee relationship is important, but it is important precisely with respect to the period for which insurable hours of employment are claimed, not with respect to a subsequent period.
That said . . . well, my colleague referred to two other sections of the Regulations, sections 9.1 and 10.2. A brief comment.
I would say that those two sections are of no use in deciding the matter before you today. Section 9.1 refers to remuneration paid to an employee on an hourly basis, thus, for work performed. Reference is made in 9.1 to a person's earnings:
Where a person's earnings are paid on an hourly basis . . .
The hours of work are thus paid on an hourly basis. It is 9.1 that applies. Returning to the example I gave a moment ago, when I gave you an example, in the case of a person who worked 40 hours at $20 an hour, plus his 11%, as regards his 40 hours at $20 an hour, it is 9.1 that would be applicable for those 40 hours; it is remuneration paid on an hourly basis, within the meaning of 9.1 for those 40 hours, but section 9.1 does not help us in resolving the question of the 11%.
Because what is this 11%? The collective agreements tell us that it is a compulsory annual vacation and statutory holiday pay. So it is not an hourly wage; it is annual vacation pay.
Consequently, section 9.1 is not helpful. Paragraph 10.2(a), as my colleague emphasized, states:
(a) an hour of work performed in insurable employment is considered to be a single hour of insurable employment, even if the hour is remunerated at an overtime rate of pay.
Once again, I do not believe this can be of any help in deciding the case before you today. We are not asking that . . . because, for example, Mr. Massicotte apparently worked during this period, and quite likely did so because I am looking . . . it is after all a brief period; we are looking at a period from June 19 to July 1, and he worked 139 hours. He no doubt worked some overtime, but I am not asking that he be given two hours because he was paid double time. That is not what I am asking.
. . .
That is what is covered by paragraph (a). That does not help us today. What we are telling you is that the only section that can help you today is section 10.1. Section 10.1 is the provision that refers to remuneration for a period of leave; it thus deals with vacation pay, and this is precisely what is before you today. The question is: are hours to be credited for annual leave and statutory holiday pay amounts?
Thus it is most respectfully submitted that the only section that can help you render your decision today is section 10.1, and it is submitted that, in the case before us, since what is involved is the payment of a lump sum amount without regard to the length of the period, it is necessarily subsection 10.1(2) that must apply.
. . .
IV- Analysis
[40] Subsection 2(1) of the Employment Insurance Act provides that insurable earnings means the total amount of the earnings, as determined in accordance with Part IV, that an insured person has from insurable employment.
[41] Paragraph 2(1)(a) of the Insurable Earnings and Collection of Premiums Regulations provides that the total amount of earnings that an insured person has from insurable employment is the total of all amounts, whether wholly or partly pecuniary, received or enjoyed by the insured person that are paid to the person by the person's employer in respect of that employment.
[42] Parliament has set out the methods for determining the number of insurable hours of employment in section 9.1 ff.
[43] Section 9.1 of the Employment Insurance Regulations provides that 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 he actually worked and for which he was remunerated.
[44] Section 9.1 lays down the general principle.
[45] The exceptions follow in section 9.2 dealing with the situation where remuneration has not been paid.
[46] Section 10 is also a provision concerning other situations which involve the determination of insurable hours.
[47] Subsection 10.1(1) concerns the determination of insurable hours for an employee paid by his employer for a period of paid leave.
[48] In such a case, the employee is deemed to have worked in insurable employment for the number of hours that he would normally have worked and for which he would normally have been remunerated during the period of paid leave.
[49] Subsection 10.1(2) provides for the determination of insurable hours for an employee paid by his employer for a period of leave in the form of a lump sum payment calculated without regard to the length of the period of leave.
[50] In such a case, the employee is deemed to have worked in insurable employment for the lesser of the number of hours that he would normally have worked and for which he would normally have been remunerated during the period of leave and the number of hours obtained by dividing the lump sum amount by the normal hourly rate of pay.
[51] Subsection 10.1(3) provides for the determination of insurable hours for an employee paid by his employer for a non-working day.
[52] If he works on that non-working day, that employee is deemed to have worked in insurable employment for the greater of the number of hours that he actually worked and the number of hours that he would normally have worked on that day.
[53] If the employee does not work on that non-working day, he is deemed to have worked in insurable employment for the number of hours that he would normally have worked on that day.
[54] Section 10.2 provides that, for the purposes of sections 9.1, 10, 10.1 and 22, an hour of work performed in insurable employment is considered to be a single hour of insurable employment, even if the hour is remunerated at an overtime rate of pay.
[55] It also provides that a fraction of an hour shall be counted as a whole hour in determining the total number of hours of insurable employment accumulated.
[56] What are the appellant's insurable hours?
[57] The appellant's insurable hours are determined under section 9.1 of the Regulations because his remuneration was paid to him on an hourly basis. That being the case, he is considered to have worked in insurable employment for the number of hours he actually worked and for which he was remunerated prior to the termination of his employment on July 9, 1997.
[58] Does the amount equal to 11 percent of earned wages credited to the appellant by the payer at the end of each week in respect of pay for compulsory annual vacation and statutory holidays give rise to insurable hours?
[59] Counsel for the appellant argues that subsection 10.1(2) of the Employment Insurance Regulations applies as a result of the changes made to the Employment Insurance Act.
[60] The Federal Court of Appeal's decision in Giroux[4]must be applied here.
[61] The pay for compulsory annual vacation received by the appellant from the Commission de la Construction du Québec does not constitute earnings. Whether the insurable period be calculated in weeks or in hours, that in no way changes the reasoning in my view.
[62] The appellant's situation for the period of employment in issue is not that described in subsection 10.1(2) of the Employment Insurance Regulations.
[63] The appellant was not on paid leave for an indeterminate period during his period of employment with the payer. He worked continuously, without interruption, until the termination of his employment on July 9, 1997.
[64] The amount credited to the appellant of 11 percent of earned wages, consisting of 6 percent for compulsory annual vacation and 5 percent for statutory holidays, must be paid to him for specific reference periods within a time period fixed by the collective agreement.
[65] The appellant is also entitled to interest on the unused portion of the amount collected.
[66] Furthermore the 11 percent credited as vacation pay each week is no longer the property of the payer, who hands it over to the Commission for the appellant's benefit.
[67] Thus the payment of the vacation pay amount to the appellant by the Commission is not a lump sum payment calculated without regard to the length of the period of leave. That amount will vary according to the number of hours worked and any interest payable. The length of the appellant's vacation period is determined in advance and he will receive his vacation pay even if he is no longer employed by the payer after his termination on July 9, 1997. Besides, if an employer had called him back to work for an emergency[5] during the compulsory vacation period, he would then have accumulated hours of insurable employment but still have received his vacation pay.
[68] In the appellant's case, he worked 139 hours and was not insured for more hours than those actually worked for his employer's benefit.
[69] In other words, the 11 percent vacation pay amount does not generate additional insurable hours. It is not earnings for the purpose of calculating insurable hours.
[70] The same reasoning could apply to anyone receiving 4 percent vacation pay upon termination of his employment. In my humble opinion, this amount could not generate additional insurable hours of employment, just as it would not have generated additional insurable weeks of employment under the old Unemployment Insurance Act.
[71] The Court cannot accept the appellant's arguments.
V- Decision
[72] Accordingly, the appeal is dismissed and the Minister's decision confirmed.
Signed at Dorval, Quebec, this 20th day of April 2000.
"S. Cuddihy"
D.J.T.C.C.
Translation certified true on this 5th day of April 2001.
Erich Klein, Revisor
[OFFICIAL ENGLISH TRANSLATION]
1999-238(EI)
BETWEEN:
CAMILLE MASSICOTTE,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Appeal heard on March 15, 2000, at Montréal, Quebec, by
the Honourable Judge S. Cuddihy
Appearances
Counsel for the Appellant: Michel Letreiz
Counsel for the Respondent: Mounes Ayadi
JUDGMENT
The appeal is dismissed and the Minister's decision confirmed in accordance with the attached Reasons for Judgment.
Signed at Dorval, Quebec, this 20th day of April 2000.
|
"S. Cuddihy" |
D.J.T.C.C.
Translation certified true
on this 5th day of April 2001.
Erich Klein, Revisor
[OFFICIAL ENGLISH TRANSLATION]