A-199-79
Attorney General of Canada (Applicant)
v.
Gaby Dupuis (Respondent)
Court of Appeal, Pratte and Le Dain JJ. and
Lalande D.J.—Montreal, November 2; Ottawa,
November 27, 1979.
Judicial review — Unemployment insurance — Respondent
received her last pay and retroactive pay increase at the same
time, and then claimed unemployment insurance benefits —
Unemployment insurance benefits based on respondent's last
twenty weeks of employment — In determining respondent's
average weekly earnings, retroactive pay increase allocated to
all the weeks of work for which increase had been paid —
Commission claimed respondent was overpaid $307 and asked
her to refund this amount — Respondent requested Minister
of National Revenue to determine how the retroactive increase
should be taken into account in calculating insurable earnings
— Minister decided the amount increased insurable earnings
only for the pay period in which the amount was received —
Umpire, on appeal, quashed the Minister's decision and
referred the matter back for reconsideration — Application to
review and set aside that decision — Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10, s. 28 — Unemployment
Insurance Act, 1971, S.C. 1970-71-72, c. 48, ss. 24, 33, 35, 75,
84 — Unemployment Insurance (Collection of Premiums)
Regulations, SOR/74-86, s. 3(2).
APPLICATION for judicial review.
COUNSEL:
Roger Roy and Guy Laperrière for applicant.
François Brière for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
François Brière, Montreal, for respondent.
The following is the English version of the
reasons for judgment rendered by
PRATTE J.: Applicant is requesting that a deci
sion made by an Umpire under section 84 of the
Unemployment Insurance Act, 1971, S.C. 1970-
71-72, c. 48, be set aside. By that decision the
Umpire allowed an appeal by respondent from a
decision of the Minister of National Revenue.
Respondent worked for the same employer from
September 15, 1975 to May 17, 1976. She received
her last pay on May 22, 1976 and at the same time
a sum of $428.25 that was owing to her as a
retroactive pay increase. Respondent then claimed
the unemployment insurance benefits to which she
was entitled. In accordance with sections 24, 33
and 35 of the Act, the amount of these benefits
was based on the average insurable weekly earn
ings during respondent's last twenty weeks of
employment. The Commission calculated that
respondent was entitled to weekly benefits of $68.
In making this calculation it had assumed, it
seems, that in order to determine respondent's
average weekly earnings the retroactive pay
increase of $428.25 that she had received after the
termination of her employment should be allocated
to all the weeks of work for which this increase
had been paid. The Commission therefore paid
these weekly benefits of $68.
On February 15, 1977 the Commission wrote to
respondent informing her that a review of her file
had revealed that she had been paid $307 more
than she was entitled to. The Commission asked
her to refund this sum and explained that the
weekly benefits which she was owed should have
been $52 instead of $68.'
Respondent could have appealed this decision of
the Commission to a Board of Referees (see
sections 57 and 94). Moreover, the decision of the
Board could itself have been appealed to the
Umpire. If respondent had exercised this right, the
Board of Referees and, after it, the Umpire would
have had to decide whether the Commission had
erred in calculating as it had done the amount of
weekly benefits to which respondent was entitled.
' Although the record contains nothing on this point, it seems
that the Commission arrived at this new figure of $52 by
calculating respondent's average insurable earnings in light
(a) of the rule contained in section 3(2) of the Unemploy
ment Insurance (Collection of Premiums) Regulations, pur
suant to which the sum of $428.25 received as a retroactive
pay increase was to be fully attributed to respondent's last
week of work; and
(b) of the rule whereby an insured's maximum insurable
earnings for a week may not exceed the amount prescribed
by the Act, which was two hundred dollars at the time, it
appears.
Respondent, however, did not exercise this remedy.
Instead, she asked the Minister of National Reve
nue to determine how the retroactive pay increase
of $428.25 should be taken into account in cal
culating her insurable earnings. The Minister
decided that, as prescribed by section 3(2) of the
Unemployment Insurance (Collection of Premi
ums) Regulations, SOR/74-86, this sum of
$428.25 increased respondent's insurable earnings
only for the pay period in which the amount was
paid. Not satisfied with this reply respondent
appealed to the Umpire, who quashed the Minis
ter's decision and referred the matter back to him
for reconsideration. It is this decision of the
Umpire which applicant is contesting today.
The appeal must be allowed, in my opinion.
To my knowledge, the only decisions of the
Minister of National Revenue that can be
appealed to the umpire are those made under
section 75 of the Act. The only provision of the
Act which allows an umpire to hear an appeal
from a decision of the Minister is section 84(1),
which reads as follows:
84. (1) The Commission or a person affected by a determi
nation by, or a decision on an appeal to, the Minister under
section 75 may, within ninety days after the determination or
decision is communicated to him, or within such longer time as
the umpire upon application made to him within those ninety
days may allow, appeal from the determination or decision to
the umpire in the manner prescribed.
Section 75 sets out as follows the matters on
which the Minister may make decisions, which can
be appealed to the umpire.
75. (1) Where any question arises under this Act as to
whether a person is required to make a payment of an
employee's premium, or an employer's premium, or as to the
amount of any such premium, in a year,
(a) the person concerned may, on or before the thirtieth day
of April in the immediately following year, apply to the
Minister to determine the question; or
(b) the Minister on his own initiative may at any time
determine the question.
(2) Where the Minister has assessed an employer for an
amount payable by him under this Act, the employer may
appeal to the Minister for a reconsideration of the assessment,
either as to whether any amount should be assessed as payable
or as to the amount so assessed, within ninety days of the day of
mailing of the notice of assessment.
(3) Where any question arises in relation to a claim for
benefit under this Act whether
(a) any person is or was employed in insurable employment,
or
(b) a person is the employer of any insured person,
the Commission may at any time, and such person or the
employer or purported employer of such person may within
ninety days after the decision of the Commission is notified to
him, apply to the Minister for determination of the question.
What then, was the question which respondent
submitted to the Minister and to which the latter
gave a reply which respondent appealed to the
Umpire? This question, in my view, was how
respondent's insurable earnings were to be cal
culated for purposes of sections 24, 33 and 35 of
the Act (that is, in order to determine the amount
of the benefits to which respondent was entitled).
This is a question which the Minister was not
authorized to decide under section 75 and which
could therefore not be submitted to the Umpire
under section 84. The Umpire should therefore
have dismissed the appeal for lack of jurisdiction.
Even if my interpretation of the question sub
mitted to the Minister were not the correct one
and if this question concerned the calculation of
the amount of the premiums due, this would not
help respondent. In such a case the Minister's
decision would be correct and the decision of the
Umpire would have to be quashed because it is
obvious, as counsel for the respondent recognized,
that the amount of the premiums must be calculat
ed in accordance with the Unemployment Insur
ance (Collection of Premiums) Regulations and
that in the present case the Minister should have
made this calculation by applying section 3(2) of
these Regulations.
For these reasons I would grant the application,
quash the decision a quo and refer the matter back
to the Umpire so that he can decide it on the basis
that:
1. the Umpire does not have jurisdiction to hear
an appeal from a decision of the Minister of
National Revenue specifying how the insurable
earnings of an insured must be calculated for
purposes of sections 24, 33 and 35; and
2. in calculating the amount of the premiums due
under the Unemployment Insurance Act, 1971, the
Minister of National Revenue must take into
account the insurable earnings calculated in light
of the Unemployment Insurance (Collection of
Premiums) Regulations and without regard to sec
tions 172 and 173 of the Unemployment Insurance
Regulations, SOR/71-324.
* * *
LE DAIN J.: I concur.
* * *
The following is the English version of the
reasons for judgment rendered by
LALANDE D.J.: I concur in the judgment of
Pratte J. and like him I am of the view that the
Minister was not authorized to determine the
amount of the benefits to which respondent was
entitled.
In my view the Commission erred in calculating
the average insurable earnings in light of the rule
in section 3(2) of the Regulations governing the
collection of premiums. It is the rule in section
173(3) of the Unemployment Insurance Regula
tions that would apply in the present case, where
the pay received when the employment terminated,
at the same time as the last regular pay, must be
allocated so that the amount of benefits can be
determined. This rule reads as follows:
173. ...
(3) Wages or salary payable to a claimant in respect of the
performance of services shall be allocated to the period in
which the services were performed.
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.