IN THE MATTER of the Unemployment Insurance Act
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IN THE MATTER of a claim for benefit by
HENRY PETERS
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IN THE MATTER of an appeal by the Commission to
an Umpire from a decision of the Board of Referees given
at Vancouver, British Columbia, on May 16, 1991.
DECISION
J. C. McNair, Q.C., Umpire:
The Commission appeals the unanimous decision of the Board of Referees that moneys the claimant received from Alltrans Express should be allocated from October 3, 1989 rather than February 25, 1990, pursuant to sections 57 and 58 of the Unemployment Insurance Regulations. The grounds of appeal relied on by the Commission are violation of a principle of natural justice and jurisdictional error, error of law and erroneous finding of fact within the meaning of sections 80(a), 80(b) and 80(c) of the Unemployment Insurance Act, R.S.C. 1985, c. U-1.
The claimant was a truck driver with Alltrans Express Ltd. His last day worked was October 3, 1989. On October 4, 1989 a strike occurred at the work premises of the employer. The strike ended on November 6, 1989. The claimant filed an application for benefits and a claim was established effective November 27, 1989 whereby he was paid regular benefits. In April, 1990 the claimant informed the Commission that his employer, Alltrans Express, had sent him a cheque in the sum of $1,736.02 for vacation pay, vacation pay in lieu of sick leave and banked overtime. Further investigation by the Commission revealed that Alltrans Express had advised the Minister of Labour by letter dated November 6, 1989 that it would be ceasing operations and terminating the employment of all its employees, effective February 26, 1990 (Exhibit 8). Consequently, the Commission allocated the vacation pay and vacation pay in lieu of sick leave based on the claimant's normal weekly earnings from February 25, 1990 to March 24, 1990. This resulted in an overpayment of $890. The claimant appealed to the Board of Referees, contending that the moneys received from the employer should have been allocated from the date of his lay-off on October 2, 1989.
The Board of Referees rendered a relatively lengthy decision in which it summarized the relevant facts, considered the contentions of the parties and concluded as follows:
Based on the evidence at hand the Board concurs that Mr. Peters' last day of work was October 2nd and vacation pay and banked overtime should have been allocated from that date. Further the wording on the ROE is clear - block 17 - "payments or benefits (other than regular pay) paid in the final pay period of payable at a later date" (Exhibit 3).
It has been established that Mr. Peters was laid off prior to the commencement of the strike and hence monies due to him should be allocated from October 3, 1989 and should have been recorded in Section 17 of the ROE at the time of issuance. The Board also refers to CUB 15419 wherein it states that monies must be allocated to the period beginning with the lay-off (exhibit 14.2).
The appeal is allowed.
Counsel for the Commission, Ms. Sandra Hancock, submitted that the Board of Referees erred when they determined that the claimant was laid off as of October 3, 1989 whereby the moneys received should have been allocated from that date. She further submitted that the event which triggered the payment of the sum of $1,736.02 received from the employer was the latter's cessation of operations on February 26, 1990 and that was the date from which the moneys should have been allocated, rather than from the fictional date of lay-off on October 3, 1989. She placed much reliance on the decision in CUB 14989, Rhodenizer, where Collier J. held that a severance and vacation pay cheque received from the employer must be allocated from the date of the actual severance on May 1, 1986, and not the date of the seasonal lay-off on March 23, 1986, as the Commission and the Board of Referees had erroneously determined. Commission counsel pointed to the similarity to the present case, where the cheque remitted by the employer was sent out and received by the claimant after the decision had been taken to cease operations.
Counsel emphasized the fact that the Commission relied strongly on the record of employment filled out by the employer, Alltrans Express, which confirmed that the claimant's last day worked was in fact October 3, 1989. In her submission, the Board of Referees erred both in law and in fact when they allocated the moneys received by the claimant from the employer back to October 3, 1989, rather than as of the date of the cessation of operations on February 26, 1990. Essentially, the Commission's bottom line submission is simply that the $1,736.02 was not paid pursuant to any lay-off or separation from employment that occurred prior to February 26, 1990, but rather was paid only after the decision was made to cease operation on that date.
The claimant's representative, Mr. Allan Zdunich, who represented him before the Board of Referees, argued that the triggering event for his client's lay-off and consequent entitlement to the vacation pay package was his lay-off on October 2, 1989, just before the strike. In his submission, the Board of Referees made the only proper decision according to the evidence before them. Mr. Zdunich distinguished CUB 14989, Rhodenizer on the basis that the decision not to antedate was predicated on the concept of pure lay-off or severance as opposed to seasonal lay-off.
The relevant statutory provisions are sections 57(2)(a) and 58(9) of the Unemployment Insurance Regulations, which read at the material time as follows:
57(2) Subject to this section, the earnings to be taken into account for the purpose of determining whether an interruption of earnings has occurred and the amount to be deducted from benefits payable under subsection 26(1) or (2), 29(4), 30(5), 32(3), 32.1(4) of the Act and for the purposes of sections 51 and 52 of the Act are:
a) The entire income of a claimant arising out of any employment; ...
58.(9) Subject to subsections 9.(1) and (10), all earnings paid or payable to a claimant by reason of a lay-off or separation from an employment shall, regardless of the nature of the earnings or the period in respect of which the earnings are purported to be paid or payable, be allocated to a number of weeks that begins with the week of the lay-off or separation of employment in such a manner that the total earnings of the claimant from that employment are, in each consecutive week except the last, equal to the claimant's normal weekly earnings from the employment period.
The Board of Referees made reference earlier in its decision to Exhibit 8. This was the written notice required to be given by the employer to the Minister of Labour of the intention to terminate the employment of a group of fifty or more employees within the employer's industrial establishments at least sixteen weeks prior to the date of termination of employment of groups of employees at various business locations of the employer, pursuant to section 212 of the Canada Labour Code, R.S.C. 1985, C. L-2. The date of termination so specified was February 26, 1990. Subsection 212 (4) provides as follows:
212.(4) Except where otherwise prescribed by regulation, an employer shall, for the purposes of this Division, be deemed to have terminated the employment of an employee where the employer lays off that employee.
Exhibit 3, which is the record of employment on which the Commission places so much reliance, indicates that the claimant's employment was terminated on October 3, 1989. There is no evidence that the plaintiff was ever recalled or subject to recall after October 3, 1989. In its decision, the Board of Referees seemed to vacillate between that date and October 2, 1989 as the last day worked. It seems to me that a great deal of time was frittered away in arguing whether the claimant's last day worked was October 2 or October 3, 1989. I fail to see what possible relevance the difference of one day had. Small wonder that the Board of Referees was confused by it all.
The long and the short of it was that the Board of Referees made the factual finding that the claimant was laid off prior to the commencement of the strike and that the moneys due him in consequence thereof "should be allocated from October 3, 1989". Essentially, the central finding of fact was that the lay-off occurred on that date and not on February 26, 1990, as the Commission contends.
The Board of Referees had referred to CUB 15419 cited in the Observations of the Commission (Exhibit 14) to support its conclusion that the "monies must be allocated to the period beginning with the lay-off" pursuant to section 58(13) of the Regulations. This regulatory provision was repealed on November 23, 1989 and replaced by the present section 9 1 one day before the date of the claimant's application on November 24, 1989. Consequently, section 9 of the Unemployment Insurance Regulations is the regulatory provision applicable to the claimant's case, and not the former section 58(13). The new section of the Regulations speaks of earnings paid or payable by reason of a lay-off or separation from an employment and their allocation to a number of weeks beginning with the week of the lay-off or separationfrom employment. In my view, the repeal of the former section 58(13) and its replacement by section 9 in its present form does not affect the actual result. However, if there is any element of technical doubt arising from the Board's inadvertent resort to a repealed regulation, then I consider that such doubt should be resolved in favour of the claimant: see Hills v. Canada (1988), 84 N.R. 48 D.L.R. (4th) 193 (S.C.C.).
I agree with the claimant's representative that CUB 14989, Rhodenizer is distinguishable on its facts from the present case. In my opinion, there was ample evidence by which the Board of Referees could have reasonably concluded that the claimant was laid off prior to the commencement of the strike whereby the moneys received by him should have been allocated from October 3, 1989. I am also of the opinion that the Board did not err in law in making its decision.
In the result, I find that the decision of the Board of Referees reflects no palpable error of law nor reviewable factual error such as to justify any interference on my part. Furthermore, there is no suggestion of any violation of a principle of natural justice nor jurisdictional error on the part of the Board.
For the foregoing reasons, the Commission's appeal is dismissed.
J. C. McNair
UMPIRE
OTTAWA, Ontario
June 16, 1993