CUB N/A
JUDGMENT OF THE FEDERAL COURT OF APPEAL
Date:
July 4, 1986
Docket:
A-178-86
Umpire's Decision:
CUB N/A
"TRANSLATION"
CORAM :
THE HONOURABLE PRATTE
THE HONOURABLE MARCEAU
THE HONOURABLE LACOMBE
BETWEEN :
ROGER COTE,
applicant,
-and-
CANADA EMPLOYMENT AND IMMIGRATION COMMISSION,
respondent.
-and-
CAMILLE GIBEAULT,
Chairman of the Board of Referees,
-and-
FRANCOISE GAGNON,
a member of the Board of Referees,
YVES GAUTHIER,
a member of the Board of Referees,
mise-en-cause in their capacity as members of the Board of Referees
pursuant to the Unemployment Insurance Act,
-and-
DEPUTY ATTORNEY GENERAL OF CANADA,
-and-
ATTORNEY GENERAL OF CANADA
mis-en-cause.
Application for leave to appeal dismissed by the Supreme Court of Canada:
Côté v. Canada (AG), [1986] S.C.C., No. 570, File no. 20004
REASONS FOR JUDGMENT
(Judgement rendered at Ottawa,
on Friday, July 4, 1986)
THE HONOURABLE MR. PRATTE:
This appeal, brought pursuant to s. 28 of the Federal Court Act, is against a decision of a Board of Referees created in accordance with the Unemployment Insurance Act, 1971. That decision found that the amount of unemployment insurance benefits payable to the applicant should be reduced because he was receiving a pension from his former employer.
The applicant was working for the Canada Post Corporation when, on November 29, 1985, he had to leave his employment because the position held by him had been abolished. A handwritten notation on one of the exhibits in the record indicated that he then took early retirement. On December 2, 1985 the applicant filed a claim for benefits. The Commission established a benefit period for him (beginning on December 1, 1985) and set his benefit rate at $276 a week. It may be assumed that in the weeks that followed the applicant received this amount from the Commission. This went on until February 7, 1986. On that day the Commission informed the applicant that, commencing January 5, 1986, the amount of his weekly benefits would be reduced as a result of the facts that he was receiving a pension of $307.96 a week from his former employer. This decision by the Commission was made pursuant to s. 26(2) of the Unemployment Insurance Act, 1971 and s. 57 of the Unemployment Insurance Regulations as amended on January 5, 1986.
Under s. 26(2) of the Act:
"If a claimant has earnings in respect of any time that falls in a week of unemployment, that is not in his waiting period, the amount of such earnings that is in excess of an amount equal to twenty,-five per cent of the claimant's weekly benefit rate shall be deducted from the benefit payable to the claimant in that week."
Section 57 of the Regulations was enacted pursuant to s. 58(q) of the Act, which confers on the Commission the power, with the approval of the Governor in Council, to make regulations:
"defining and determining earnings for benefit purposes, determining the amount of such earnings, providing for the allocation of such earnings to weeks and determining the average weekly insurable earnings In the qualifying weeks of claimants."
Section 57 of the Regulations defines, inter alia, what constitutes earnings to be taken into account for the purpose of determining . . . the amount to be deducted from benefits payable under Section 26 . . .". Up to January 5, 1986, this section was worded so that these earnings did not include retirement pensions which the claimant might be receiving. On January 5, 1986, however, this section of the Regulations was amended, first, to indicate that such earnings included "the moneys paid or payable to a claimant on or after January 5, 1986, on a periodic basis or in a lump sum on account of or in lieu of a pension" and second, to specify that the word pension , in this provision, meant
"... any retirement pension
(a) arising out of employment, service in the Canadian Forces or in any police force,
(b) under the Canada Pension Plan, or
(c) under a provincial pension plan."
The Commission used this amendment to fit-s. 57 of the Regulations as the basis for its decision to reduce the amount of the benefits payable to the claimant as a result of the fact that he was receiving a retirement pension arising out of employment. The applicant appealed this decision to a Board of Referees. He is now challenging the decision of the Board which dismissed his appeal.
Of the many arguments submitted to the Court at the hearing in support of the application, there are only two which we regard as significant and on which we felt that counsel for the respondent should be heart. I will confine myself to discussing these two arguments, which may be summarized as follows:
1. the amendment to s. 57 of the Regulations could not justify a reduction in the benefits payable to the claimant during the benefit period established for him in early December 1985, because the claimant had a vested right to those benefits, and
2. the amendment to s. 57 of the Regulations is ultra vires because s. 58 of the Act did not authorize the Commission to enact it.
The applicant based his first argument on the Supreme Court judgment in Dallialian 1 and on s 35(c) of the Interpretation Act. 2 He said that the new regulations affected his vested rights and, because of that, were invalid, because an administrative authority has no power to enact regulations having such an effect unless expressly authorized to do so by law. 3 I see no merit in this argument. What are the vested rights relied on by the applicant? He said that they were those resulting from the establishment of a benefit period for him: but the establishment of that period did not create a right for the applicant to receive benefits. A period had to be established if the applicant was subsequently to claim benefits, but did not of itself him to receive those benefits. To be entitled to the benefits during his benefit period, the applicant had to claim them and establish that he then met all the conditions for obtaining them. What the applicant is actually saying is that the establishment of his benefit period crested a vested right for him to rely on the Unemployment Insurance Act and Regulations existing at that time, regardless of the amendments which might subsequently be made to them. This argument is without basis. "The mere right . . . to take advantage of the . . . statute is not a right accrued." 4 the . . . statute is not a right accrued.
The applicant's second argument is a more compelling one. By amending s. 57 as it did, he said, the Commission exceeded the power conferred on it by s. 58(q) of the Act to enact regulations defining and determining earnings for benefit purposes'.
First, it should be pointed out that the power conferred on the Commission by s. 58(q) is not to define the word "rémunération" (earnings) as used in the Act. The Act predates the Regulations; it uses the word "earnings" in the sense which the legislator intended it to have. Otherwise the Act would have no meaning as such. The power to define "earnings is therefore only a power to specify what constitutes earnings. Naturally, this power must be exercised in accordance with the meaning which the word "earnings" has in the Act.
In what sense did the legislator use the word "rémunération in the Act? In its ordinary meaning, the word signifies "l'argent reçu pour prix d'un service, d'un travail. 5 The English version of the Act uses the word "earnings", which according to the Shorter Oxford English Dictionary means "that which is earned by labour, or invested capital". This meaning cannot be given to the French word "rémunération", which is not ordinarily used to refer to investment income. Accordingly, while it is true that use of the word "earnings" in the English version of the Act may suggest giving the French word "rémunération" as a wide meaning which would, for example, cover tips, 6 it seems to me that use of the word "rémunération" in French actually limits the meaning of the English word earnings, so that it refers only to what is earned by labour. In my opinion, it is this meaning that must be given to the word "rémunération" in the Unemployment Insurance Act, 1971; and the Commission should take this into account in exercising the regulatory power conferred on it by s. 58(q).
However, this does not mean that the Commission's power under this paragraph is only that of a judge to decide whether earnings by a claimant are "earnings" under the Act. A regulatory power is vested in the Commission, not just a decision-making power. It therefore does not have only a power to specify and to clarify what constitutes "earnings" under the Act, it also has a power to include within "earnings" income which really is not in that category but which in some ways resembles it. It would thus appear that the Commission could not provide that the family allowances received by a claimant constitute "earnings" because there is no connection between such allowance and the work done by the claimant. However, it would appear that the Commission has the power to enact, as it did by s. 57(2)(c) of the Regulations, that sickness or disability payments receiver by a claimant from a group wage lose indemnity plan constitute earnings. There is a connection between these indemnity payments and, first, the work done by the claimant (without he would not be entitled to such insurance) and, second, the wage which such indemnity payments replace.
The regulation which the applicant is challenging in the case at bar includes in earnings monies paid or payable to a claimant on account of a pension arising out of employment. It is well known that at the present day pensions received by employees are paid to them from "pension plans. which provide for the creation of a pension fund supported by compulsory contributions from employer and employees and usually administered by an insurance or trust company. In such circumstances, the applicant said, it is clear that the pensions received by employees on retirement are not compensations for their labour, since they are paid to them not in consideration of the work which they did but in consideration of the contributions made to the pension fund.
This analysis is legally correct, but it can only be a basis for invalidating the impugned regulation if the Commission's sole power under s. 58(q) of the Act is to specify what the Act means. As I have already said, in my opinion the regulatory power conferred on the Commission by that provision goes further. It enables the Commission to include in earnings money which though not earnings resembles them in some respects. In my opinion, there is a sufficient connection between the work done by an employee in employment and the pension arising out of that employment for the pension to be treated as earnings. The employee receives his pension because he has worked, and it seams to me that in a broad sense the pension is paid to him in consideration of the work done by him. I therefore conclude that the respondent Commission had the power to amend s. 57 of the Regulations as it did.
I would dismiss the application.
"Louis Pratte"
J.F.C.C.
"I concur.
Bertrand Lacombe, J."
1 Employment and Immigration Commission v. Dallialian, (1980) 2 S.C.R. 582.
35. Where an enactment is repeated in whole or in part, the repeal does not
...
(c) effect any right, privilege, obligation or liability acquired, accrued, accruing or incurred under the enactment so repeated.
3 Parklane Private Hospital Ltd. v. City of Vancouver, (1975) 2 S.C.R. 47.
It may be noted that the Order in Council at issue in that judgment did not affect vested rights only, it actually had retroactive effect.
4 Gustavson Drilling (1964) Limited v. Minister of National Revenue, (1977) 1 S.C.R. 271, at 283, per Dickson, J.
5 Le petit Robert, vbo "rémunération".
6 See Canadian Pacific Limited v. Attorney General of Canada, un-reported judgment of Supreme Court of Canada, rendered on May 22, 1986.
THE HONOURABLE MR. MARCEAU
I am finally persuaded also that this application pursuant to s. 28 of the Federal Court Act cannot be allowed. I should say that I was for the moment swayed by certain arguments of counsel for the applicant and the interveners, ably developed and based on the notion of respect for vested rights and the need to place on the regulatory power conferred by s. 58(q) of the Unemployment Insurance Act, 1971 the limits imposed by use of the word "earnings"; but on reflection I have come to the conclusion that these arguments have no weight in legal terms. My opinion is the same as that of Pratte, J.
In brief, I do not think that the establishment of a benefit period can have the effect of creating for a claimant a vested right that, through- out the period in question, the rules under which the benefits are payable to him will remain fixed and immutable. What is definitely established is the length of the period, and possibly the rate applicable because it is strictly dependent on past events; the right to receive benefits only arises periodically, with each weekly claim, and must be defined on each occasion in accordance with the rules existing at the time of each claim.
I also do not think it is possible to limit the application of the word "earnings" is s. 58(q). It has to be admitted that the use of such a word by Parliament implies an intent to keep the Commission's regulatory power within certain limits, which were in any case already imposed by the meaning and spirit of the law. However, the word cannot be given a strict and limiting sense without rendering the power of "definition", expressly conferred by the provision, completely illusory and meaningless and thereby counteracting the real intent of Parliament. "Earnings. in the broad sense are everything the worker derives in the form of pecuniary benefits from his work present or past, and in this sense a pension is still undoubtedly earnings, whatever means is used during the period of the employment to ensure that the agreed periodic payments will be made when the time of retirement comes.
It is not hard to understand the reaction of those who, like the applicant, have had their expectations disappointed and their hopes dashed: there may be a question as to the advisability or wisdom of this decision by the authorities to apply the idea from now on that someone receiving a retirement pension does not need unemployment insurance benefits; it may be desirable to make adjustments, for example to ensure that a person with a vested right to a pension does not go on contributing to the plan when it is clear he can no longer benefit from it; but all of this is no reason in strict legal terms for upholding the argument of the applicant.
Like Pratte, J., I think this application should be dismissed.
"Louis Marceau"
J.F.C.C.