EMPLOYMENT INSURANCE |
Canada (Attorney General) v. Hawryluk
A-466-98
Sexton J.A.
28/6/00
6 pp.
Application for judicial review of Umpire's decision lacked jurisdiction to hear appeal from Board of Referees' decision reversing Commission's decision respondents had insufficient hours of insurable employment to qualify for benefits--Issue whether Board of Referees and correlatively, Umpire, have jurisdiction to determine number of hours of insurable employment insurance benefits claimant has earned, or whether such jurisdiction belonging exclusively to Department of National Revenue by reason of Employment Insurance Act, ss. 90(1)(d) and 122--Issue arising out of dispute as to interpretation to be placed upon Employment Insurance Regulations, s. 94.1 transitional provision--Under Unemployment Insurance Act, eligibility for benefits determined according to number of weeks worked--Under new legislation, actual number of hours worked relevant--Regulations, s. 94.1 providing that for benefit periods established on or after January 1997 with respect to weeks of insurable employment prior to January 1, 1997, week of insurable employment "shall be considered" to represent 35 hours of insurable employment--Respondents herein had actually worked more than 35 hours in weeks prior to January 1, 1997, and if claims assessed according to actual number of hours worked, respondents qualify for benefits; if s. 94.1 deeming provision applied, respondents do not qualify--Legal question whether "shall" should be read in "mandatory" as opposed to merely "directory" manner--Applications dismissed--Clear from case law and Employment Insurance Act, s. 122 (questions as to hours of insurable employment shall be determined by Department of National Revenue) neither Board of Referees nor Umpire had jurisdiction to determine whether respondent had sufficient number of hours of insurable employment to qualify for benefits--Insurability issues take one route, i.e. Revenue Canada and Tax Court, and entitlement to benefits take another, i.e. Commission, Board of Referees and Umpire: Valentine v. Canada (Attorney General), [2000] F.C.J. No. 619 (C.A.) (QL)--In Canada (Attorney General) v. Hoek, [2000] F.C.J. No. 622 (C.A.) (QL) Court held s. 94.1 35-hour conversion factor "clearly mandatory"--Employment Insurance Act, S.C. 1996, c. 23, ss. 90(1)(d) (as am. by S.C. 1999, c. 17, s. 135; c. 31, s. 80), 122 (as am. by S.C. 1999, c. 17, s. 135)--Employment Insurance Regulations, SOR/96-332, s. 94.1 (as enacted by SOR/97-31, s. 24)--Unemployment Insurance Act, R.S.C., 1985, c. U-1 (repealed by S.C. 1996, c. 23, s. 155).