BETWEEN:
and
THE MINISTER OF NATIONAL REVENUE,
____________________________________________________________________
Appeal heard on May 19, 2005, at Kitchener, Ontario
Before: The Honourable T. E. Margeson
Appearances:
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____________________________________________________________________
JUDGMENT
The appeal pursuant to subsection 103(1) of the Employment Insurance Act is dismissed and the decision of the Minister, on the appeal made to him under section 91 of that Act, is confirmed.
Signed at New Glasgow, Nova Scotia this 18th day of August 2005.
BETWEEN:
MEICHLAND BLACKBURN,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
REASONS FOR JUDGMENT
[1] The Appellant appealed a decision of the Minister of National Revenue forwarded to him by letter dated June 8, 2004, which determined that he had been engaged in insurable employment with the Government of Canada, Correctional Services (the "employer"), during the period in question, under a contract of service and that he had insurable earnings of $4,990.20 and 195 hours of insurable employment. This decision was referable to the period in question, June 1, 1998 to December 22, 2003.
Facts
[2] The facts are reasonably straightforward and set out in the Reply to the Notice of Appeal and, in essence, were concurred with by the Appellant at the time of the appeal with the exception of the fact that he referred to the period in issue as being from June 1, 1998 to February 11, 2002.
[3] The facts can be stated as follows:
In May of 1997 the Appellant took a one year authorized leave of absence from his employment with the employer to pursue reinstatement with the Niagara Regional Police Service, and the said leave was to expire on May 31, 1998. On June 1, 1998 the employer suspended the Appellant, without pay, pending the resolution of criminal charges against him in the City of Hamilton. On February 8, 2001 the Appellant was acquitted of the criminal charges in the City of Hamilton, but he did not return to his employment with the employer. On January 21, 2002 the employer requested the Appellant to return to work on February 11, 2002. On February 11, 2002 the Appellant returned to work for the employer, and the Appellant filed a Leave of Absence Report requesting indefinite sick leave without pay and left the employer.
[4] On February 21, 2002 the employer informed the Appellant that his employment was terminated effective February 11, 2002. As a result of this termination by the employer, the Appellant filed a grievance. On June 20, 2003 the Public Service Staff Relations Board ("PSSRB") determined that the Appellant was terminated without cause and ordered the Appellant to be reinstated with full benefits and rights under the Collective Agreement.
[5] From June 1, 1998 to February 11, 2002 the Appellant was employed and received salary and benefits from the Niagara Regional Police Service. The employer issued a Record of Employment to the Appellant, for the period November 17, 2003 to December 22, 2003 indicating that he had insurable earnings of $4,990.20 and 195 hours of insurable employment with the employer, which represented a period of paid annual leave from the employer. At all material times, the Appellant did not perform any services for the employer.
Issue
[6] The issue is whether or not the Appellant's employment with the employer was insurable for the period referred to herein and further to determine the insurable earnings and hours of insurable employment.
Position of the Appellant
[7] In his summation, the Appellant took issue with the ruling of Human Resources and Development Canada ("HRDC"), dated December 23, 2003 that he was engaged in insurable employment for the period June 1, 1998 to December 8, 2003, which the Appellant says should be February 11, 2002, and that he had zero insurable hours and zero insurable earnings during that period. By letter, Exhibit A-5, the Appellant was advised that pursuant to section 9.1 of the Employment Insurance Regulations 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. It also indicated how the Minister calculated the insurable earnings under the Insurable Earnings and Collection of Premiums Regulations.
[8] The Appellant also took exception to the fact that the employer issued another Record of Employment, Exhibit A-8, only after having it requested of them by HRDC. This Record of Employment indicates that during the period in issue the insurable earnings were $4,990.20 and the total insurable hours were 195.
[9] There were no other Records of Employment introduced which were relevant to these proceedings. However, the Appellant took the position that the Record of Employment was incorrect.
[10]He referred to Exhibit A-7, which was a Record of Employment for the Appellant with Correctional Services Canada for the period November 30, 1992 to May 26, 1997. The Appellant attempted to use this Record of Employment to indicate how much he earns in terms of a yearly basis and what it comes out to in terms of insurable earnings based upon the yearly basis as set out in Exhibit A-7. His position was that, as a result of the decision, he was given back 16 months of insurable employment which would amount to approximately another 400 hours. At the end of the day he would have approximately 2,000 insurable hours.
[11]However, he was not demanding that number of hours but only 639 hours of sick and vacation leave as insurable hours that would qualify him for parental benefits which needed only 600 hours.
[12]The Appellant took the position that Exhibit A-8 did not reflect what he referred to as "the hours given back to Officer Blackburn" as a result of the decision obtained in Exhibit A-1.
[13]He said that the employer chose to have him resubmit a Leave Application with the dates shown on the Record of Employment, Exhibit A-8, for the purpose of record keeping in order for him to be paid vacation pay. His position was that his employer told him that he had to submit the Leave Application with these dates and he objected to doing it. They were going to pay him some money and so he agreed. He said that he could not stop them. He admitted that he received a payment for 195 insurable hours. His position was that he only received credit for 195 insurable hours but he should have received credit for at least 639.
[14]He referred to the Employment Insurance Regulations, Part I, section 9.1 but said that did not apply to him because he did not actually work the hours in question. He then referred to section 10.1. He said that applies to him because he has been given sick leave credits back for a period of leave. Consequently he is deemed to have worked in insurable employment for the numbers of hours that he would have normally worked and for which he normally would have been paid or remunerated during that period.
[15]The Court takes him to have concluded that because he received partial remuneration then he has deemed to have been engaged in insurable employment for the period of time that he would have normally have been employed. He takes the position that when you apply the provisions of section 2 of Part I of the Insurable Earnings and Collection of Premiums Regulations together with the provisions of 10.1, unemployment benefits, hours of insurable employment, he should be given a credit for all of those hours as being insurable hours.
[16]He said that the employer and HRDC did not do this, deciding that he had zero insurable hours because he did not physically work and he was not remunerated. This matter is still pending before the Court.
[17]It was his position that there was no distinction between leave and vacation pay for the purpose of calculating insurable hours. He referred to it as "leave credits" and he said that they amounted to 639. He said that they were trying to draw a distinction between insurable hours and leave credits and they could not do this.
[18]At the end of the day the Appellant calculated that he would have had 2,844 insurable hours between June 1, 1998 and December 22, 2003 as well as additional hours which he was unable to calculate. He calculated that up to February 11, 2002 he had 2,844 insurable hours that he had not been credited with by his employer.
Argument on Behalf of the Respondent
[19]In argument, counsel for the Respondent referred to the definition of insurable earnings contained in section 2 of Part I of the Insurable Earnings Collection of Premiums Regulations and section 2(3) of the same provision with respect to the definition of "earnings". Section 2 says as follows:
(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
(b) the amount of any gratuities that the insured person is required to declare to the person's employer under provincial legislation.
...
(3) For the purposes of subsections (1) and (2),
"earnings" does not include
(a) any non-cash benefit, other than the value of either or both of any board or lodging enjoyed by a person in a pay period in respect of their employment if cash remuneration is paid to the person by their employer in respect of the pay period;
[20] According to counsel for the Respondent, these are the important sections and are fatal to the position of the Appellant.
[21] He took the position that there were many facts disclosed during the hearing which did not go to the heart of the matter and are not relevant. As far as he was concerned the issue was simply whether or not the Appellant's employment with the employer was insurable for the period referred to in the decision and what were the insurable earnings and hours of insurable employment during that period.
[22] With respect to the first argument, there can be no doubt that Canada Customs and Revenue Agency has decided that it was insurable employment. That is not in issue. However, they determined that he only had 195 insurable hours and that was set out in the Record of Employment.
[23] The decision from Treasury Board did not give him anything more than that. The Appellant was asked during the cross-examination to point out in the decision where he was given anything more than the insurable hours that he has been awarded and he was unable to do so. Counsel was unable to determine what the Appellant was relying on from this decision to support his position.
[24] There is an onus upon the Appellant to prove his case and to bring reliable evidence to support his argument on the balance of probabilities; in essence, to dispute the correctness of the Record of Employment. The Appellant was probably relying on the provisions of paragraph 298 of the Judgment of the Treasury Board which stated that Mr. Blackburn was on leave without pay when he was suspended. His leave was ending May 31, 1998 and that this was a status he should revert to for that period. In essence, he was arguing that for the period May 25, 1998 to February 11, 2002 he reverted to the status of leave without pay.
[25] However, the real essence of this decision is "what did he get out of it that entitled him to insurable hours?" It is obvious that cash was paid to him as set out in the definition according to the Record of Employment before the Court. He received, as a result of the decision, vacation pay of 195 hours. This goes to the ultimate question before the Court today.
[26] The only thing that counsel could deduce from his argument was that the Appellant was relying upon the vacation pay that he received including $285 of vacation credit and 354 hours of sick leave. There was nothing to substantiate that. That is refuted by the Record of Employment.
[27] At the end of the day what he received in cash was a payment for the vacation pay for the insurable hours that his employer calculated and that is what they paid him for. Even if there are other issues which have not yet been decided in other forums and, in the event, that the Appellant receives credit for future sick leave and vacation pay which he has not yet received, he would still not have insurable hours more than those assigned to him in the Record of Employment because of the legislation referred to. Credits would not be insurable hours.
[28] The Appellant could have appeared in Court and presented pay stubs, cheque stubs or some information from Corrections Canada or witnesses from Corrections Canada to testify as to what benefits he received and what monies he received as a result of the decision. Those receipts could then be tied into the Act and one could determine how it qualified him for more insurable hours. All that he did was testify that he received "x" amount of hours and "y" amount of hours but that does not meet the onus that is upon him.
[29] When one reasonably applies the decision of the Treasury Board, the Appellant received nothing more in cash from the Treasury Board decision other than that which has been referred to for the vacation pay and nothing else in the decision provides him with any more insurable hours.
Analysis and Decision
[30] The Court is satisfied that the issue in this case is relatively straightforward and simple. That issue is whether or not the Appellant was engaged in insurable employment during the period in question, what were the number of insurable hours that he had accumulated and what were the insurable earnings.
[31] The best evidence with respect to all three matters is the Record of Employment which was presented before the Court as Exhibit A-7. That Exhibit clearly indicates that during the period in question the Appellant had a total of 195 insurable hours with total insurable earnings of $4,990.20. The Court can find nothing in the decision of the Treasury Board, Exhibit A-1, which indicates anything to the contrary.
[32] Statements made in paragraphs 298 and 299 and other paragraphs of the decision do not refute the Record of Employment and they were not intended to do so. Nothing that the Appellant said in Court was sufficient to refute the Record of Employment and indeed the Appellant did not bring forward any witnesses to testify that the Record of Employment was incorrect. It is obvious that the Appellant has read into the decision of Treasury Board something that was not there.
[33] The information contained in the Record of Employment was corroborated by the witness, Sasa Danicic, who was in charge of reviewing this appeal for HRDC. He said that he reviewed this file and the history of the employment insurance claims of the Appellant. He said that HRDC received the Record of Employment from the employer and it correctly set out the insurable hours and insurable earnings. They relied upon the Record of Employment provided by the employer.
[34] There was no Record of Employment in the qualifying period to substantiate the Appellant's claim. He saw nothing in the evidence which was presented by the Appellant in Court which would change his opinion with respect to the number of insurable hours or the amount of insurable earnings.
[35] He did concede that the Record of Employment, Exhibit A-8, was received as a result of the Minister's request. It was his position that the Record of Employment indicated the vacation leave credits that the Appellant had been given and he was unaware of any others that he was entitled to.
[36] The Court is satisfied that the Appellant has misconstrued the thrust of the Treasury Board decision and there is nothing in that decision that could be interpreted as allotting to the Appellant any more insurable hours as he claimed.
[37] In any event, even if it did so the Appellant would be prohibited from claiming any more insurable hours based upon the statute. It is clear from the provisions of section 2 of the Insurable Earnings and Collection of Premiums Regulations, Part 1, that in order for an amount to be considered to be earnings for insurable employment the amounts have to be paid to the person by the person's employer in respect of that employment. It is obvious that the Appellant only received remuneration for 195 hours and that remuneration is in the amount of $4,990.20 and that is the amount for which he has been given credit.
[38] The Court is satisfied that the Appellant has misconstrued the significance of the term "partially pecuniary" and the fact that he did receive some of the payment as indicated in the Record of Employment, does not mean that he is deemed to have received the whole amount that he would normally have received if he were working or receiving vacation pay.
[39] It is obvious that the section means the total amount that he received that was paid by his employer in respect of the employment. The amount was clearly $4,990.20.
[40] Further, the Court is satisfied that the Appellant has misconstrued the effect of combining section 2 of Part I of the Insurable Earnings and Collection of Premiums Regulations and section 10.1 of Part I of the Employment Benefits Provisions. Section 10.1 does not act to deem the Appellant to have received any more than he actually received from his employer as set out in the Record of Employment, and this was confirmed by the evidence. That section can only mean, that where he receives from his employer remuneration for a period of paid leave, he 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 based on the amount of remuneration that he has actually received.
[41] He is not deemed to have received any greater amount than he actually did receive. To interpret this section otherwise would be to completely destroy the provisions of section 2 where it indicates that in order for any amount to be earnings from insurable employment under the definition of "insurable earnings" in subsection 2(1) of the Act for the purposes of the Regulations, the amounts have to be paid to the person by the employer in respect of the employment.
[42] The Court is satisfied that the Appellant has not, on the balance of probabilities, proved that the Minister's assessment was incorrect and has not shown that the Record of Employment as presented into evidence was incorrect. The Appellant has not satisfied the burden of proof upon him on the balance of probabilities.
[43] The appeal is dismissed and the Minister's decision is confirmed.
Signed at New Glasgow, Nova Scotia this 18th day of August 2005.
"T. E. Margeson"
Margeson J.
STYLE OF CAUSE: MEICHLAND BLACKBURN AND M.N.R.
PLACE OF HEARING: Kitchener, Ontario
REASONS FOR JUDGEMENT BY: The Honourable Justice T. E. Margeson
DATE OF JUDGMENT: August 18, 2005
APPEARANCES:
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For the Appellant: |
The Appellant himself
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Counsel for the Respondent: |
Ronald MacPhee |
COUNSEL OF RECORD:
Firm:
For the Respondent: John H. Sims, Q.C.
Deputy Attorney General of Canada
Ottawa, Ontario