A-256-79
Attorney General of Canada (Applicant)
v.
Amy S. Yu (Respondent)
Court of Appeal, Pratte and Heald JJ. and Smith
D.J.—Vancouver, September 11; Ottawa, October
9, 1979.
Judicial review — Unemployment insurance — Respondent
received unemployment insurance benefits for fifteen weeks by
reason of pregnancy — Two months after her return to work
respondent received a lump sum "maternity reimbursement"
paid pursuant to collective agreement and conditional upon
her return to work — Whether the "maternity reimbursement"
was payable under a contract of employment without the
performance of services for the maternity leave period or
whether it was for the period after her return to work as the
Umpire had decided — Application dismissed, Pratte J. dis
senting — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10,
s. 28 — Unemployment Insurance Regulations, SOR/55-392
as amended by SOR/71-324, ss. 172, 173.
APPLICATION for judicial review.
COUNSEL:
Ingeborg Lloyd for applicant.
Allan H. MacLean for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Vancouver Community Legal Assistance
Society, Vancouver, for respondent.
The following are the reasons for judgment
rendered in English by
HEALD J.: This is a section 28 application to
review and set aside the decision of an Umpire
under the Unemployment Insurance Act, 1971,
S.C. 1970-71-72, c. 48.
The respondent, an employee of Simon Fraser
University, applied for unemployment insurance
benefits on March 1, 1976 by reason of pregnancy
and received such benefits for fifteen weeks com
mencing with the week of March 14, 1976, after
which period, she returned to her employment with
that University.
On September 26, 1976 and October 24, 1976,
the respondent received monies in the amount of
$1,024.80 and $271.71 respectively from her
employer, pursuant to section 35.06 of the relevant
collective bargaining agreement.
On August 22, 1977, the respondent was noti
fied that these monies so received had been deter
mined to be earnings and allocated by the Canada
Employment and Immigration Commission to be
the period during which unemployment insurance
benefits had been received by the respondent pur
suant to the provisions of the Unemployment In
surance Regulations, SOR/55-392 as amended by
SOR/71-324, sections 172 and 173.
Based on an agreed statement of facts filed
before him, the Umpire found that the payments
in question (which were, admittedly, earnings for
the purposes of the Unemployment Insurance Act,
1971), were paid without rendering service during
the period after the claimant had returned and
remained at work. He also found that these earn
ings were not for services performed but were,
rather, incentive payments to return and remain at
work for two months.
The applicable section of the collective bargain
ing agreement is section 35.06 which reads as
follows:
35.06 Reinstatement Following Return to Work. Two (2)
months after the employee's return to work the University shall
reimburse in a lump sum:
(a) the University's portion of benefit premiums, and,
(b) the difference between the U.I.C. Maternity benefits
received and the employee's normal salary for the duration of
the U.I.C. Maternity benefit period.
It is the submission of the applicant that the
Umpire erred in law in deciding that the lump sum
payments received by the respondent from her
employer, and referred to supra, should, pursuant
to section 173(4) of the Unemployment Insurance
Regulations be allocated to the period after the
respondent returned to work.
Regulation 173(4) reads as follows:
173....
(4) Wages or salary payable to a claimant under a contract
of employment without the performance of services and monies
payable in consideration of a claimant returning to or com
mencing work with an employer shall be allocated to the period
for which such wages, salary or monies, as the case may be, are
payable.
It is the submission of the applicant that the
"maternity reimbursement" received by the
respondent two months after her return to work
was salary payable to her under a contract of
employment without the performance of services
for the maternity leave period and not for the
period after her return to work. I do not agree with
this submission. The agreed statement of facts
(case page 76) states that section 35.06 is designed
to encourage skilled employees to return to work
after completion of maternity leave. It seems clear
also, from the wording of the section that the
object of the section was to encourage a return to
work. I say this because of the requirement that
the employee return to work for a minimum of two
months before becoming entitled to the lump sum
reimbursement. If the applicant is correct in his
submission that the payment was for the maternity
leave period, then, it seems to me that, in such a
case, the respondent would become entitled to the
payment at the expiration of the maternity leave
period and without in fact having to return to work
at all. Because of the requirement for return to
work as a condition precedent to payment and
because at least one of the objects of the section
was to encourage return to work, I am satisfied
that the Umpire was correct in concluding that the
payments in question should be allocated to the
periods after the claimant returned to work.
I would, therefore, dismiss the section 28
application.
* * *
SMITH D.J.: I concur in the foregoing reasons
for judgment.
* * *
The following are the reasons for judgment
rendered in English by
PRATTE J. (dissenting): The facts which gave
rise to this section 28 application are fully stated
by my brother Heald in his reasons. I do not need
to repeat what he has already said.
While acknowledging the force of my brother's
reasoning, I cannot share his view that the sum
here in question must be allocated, under subsec
tion 173(4) of the Unemployment Insurance
Regulations, to the period after the respondent
had returned to work.
In order to be entitled to that sum, the respond
ent had, at the end of her maternity leave of
absence, to return to work for a period of at least
two months. This was a mere condition to which
was subordinated her right to be compensated for
the lois she had suffered during her maternity
leave of absence. In my view, the existence of that
condition does not alter the fact that the payment
here in question was made for the period of her
maternity leave.
For these reasons, I would allow the application.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.