Federal Court Decision #A-156-95 - MARC, POITRAS v. COMMISSION, THE ATTORNEY GENERAL OF CANADA

respondents.

REASONS FOR JUDGMENT OF THE COURT
(Delivered from the bench at Montréal, Quebec
on Friday, September 20, 1996)

MARCEAU, J.A.:

This application for judicial review is directed against an umpire's decision under the Unemployment Insurance Act. The applicant, Marc Poitras, submits that the umpire erred by affirming, in spite of the Board of Referees' opinion, the Commission's finding that the disability benefits he received from December 20, 1990 to February 2, 1991, while he was unemployed, constituted earnings and had to be allocated in accordance with the provisions of sections 57 and 58 of the Unemployment Insurance Regulations. His counsel argued in substance that the benefits were paid to him under the disability pension plan provided for by the Montréal firefighters' retirement plan. As its name indicates, it was thus a disability pension and, according to paragraph 57(3)(a) of the Regulations, such a pension does not constitute earnings. By deciding otherwise, he submitted, the Commission distorted the nature of the plan, which is meant to be a unique plan that does not make any distinctions based on whether or not the disability is permanent, a plan that can be interpreted only as a whole and on its own terms, not in light of the specific cases to which it may apply. Even more questionable, in his submission, is the fact that the Commission's decision, by requiring that the disability pension be permanent for the exemption under paragraph 57(3)(a) to apply, added a condition to the Act that its wording does not, on its face, impose.

Despite the quality of his submissions, counsel for the claimant has not managed to convince us that his arguments are correct. We will examine them in order.

1. Counsel focused first on the title and terms of the Montréal firefighters' retirement plan pursuant to which the payments were made (I will now refer simply to "the plan"). However, there can be no doubt that the legal nature of an agreement or contractual clause must be determined on the basis of its scheme, characteristics and actual effects, over and above the definition or title given to it by the parties, who may or may not be well versed in legal subtleties.

2. Counsel then referred to the "uniqueness" of the plan, the terms of which provide for a unique type of payment to all recipients. It is true that the periodic payments under the plan are made without distinction to all those who have been disabled for more than 16 weeks and whose disability has been characterized as long-term by a doctor's certificate. However, an analysis of the plan's provisions (articles 24 and 25) makes it immediately clear that the plan provides for not one but two types of payments: one for employees who will not be able to return to work, which is paid over the recipient's lifetime; and another for employees who will return to work, which ends when the disability ends.

3. Finally, counsel noted that paragraph 57(3)(a) of the Regulations does not include the word "permanent". In André Pleau v. Attorney General of Canada, a judgment of June 28, 1996 in file No. A-721-95, this Court recently had an opportunity to make a definite ruling on the basic characteristics that must be attributed to the concept of "pension" referred to in sections 57 and 58 of the Regulations, as it is used in those sections. The Court found that a pension must involve periodic payments designed to guarantee recipients, for life, a means of livelihood that their salaries would provide them with if their condition did not permanently prevent them from working to earn that livelihood. Pension recipients are not necessarily off the labour market, but their pensions are intended to compensate for the fact that certain sectors of the labour market will never again be open to them. Parliament did not have to stress the idea of permanence in the exemption provision in paragraph 57(3)(a) of the Regulations; it was already implied by the use of the word "pension".

Accordingly, we are of the view that the umpire, like the Commission, was correct in thinking that payments made under the Montréal firefighters retirement plan to a recipient whose disability is not considered permanent from a medical point of view--payments that will therefore end when the recipient goes back to work--are not pension payments. Their nature is that of an indemnity to compensate for a temporary loss of wages. They are therefore not covered by the exemption in paragraph 57(3)(a) of the Regulations. They are earnings and are subject to allocation. Only payments to a recipient whose disability has been found to be permanent are covered by paragraph 57(3)(a).

Since it is certain that the payments made to the claimant, Marc Poitras, were of the first type because his disability was never considered anything other than temporary from a medical point of view, the umpire was correct to set aside the Board of Referees' decision and affirm the Commission's determination.

The application will therefore be dismissed.

"Louis Marceau"

J.A.