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  • CUB 25472



    - and -

    IN THE MATTER of a claim by

    - and -

    IN THE MATTER of an appeal to an Umpire by the Commission
    from a decision by the Board of Referees given on
    July 31, 1991 at Timmins, Ontario.



    The Honourable R.J. Marin, Umpire

    This appeal by the Commission was heard at Timmins on August 16th, 1994.

    Another appeal, Jean-Guy Filion, was slated for hearing at the same time; it was agreed by the claimant and counsel for the Commission that I would render one decision which would apply mutatis mutandis to both.

    The claimant was an employee of Cliffs of Canada Limited, the operator of Sherman and Adams Mine which ceased operation in Kirkland Lake and Temagami. It paid certain benefits to employees. The decision to close the mine affected a number of employees; those affected were recipients of a package considered "severance". While the entire package has not been attacked by the Commission, it proceeded to allocate, pursuant to the provisions of s. 57 of the Act, what was labelled a Housing and Rental Subsidy. It is to be noted that, in the case of the present claimant, the subsidy amounted to approximately $1,200.00.

    Before setting the subsidy, a notice was sent to employees to determine eligibility and quantum. The notice on file, as Exhibit 7, suggests that the subsidy was subject to a number of factors. The following criteria are enumerated:

    1. The employee must have been both employed by the mines and the registered owner or renter of the principle [sic] residence on March 6, 1989.

    2. The employee must be employed at either of the mines on March 31, 1990.

    3. Only that portion of a commercial operation, multiple dwelling unit or farm that is utilized by the employee as a principle [sic] residence is eligible for the subsidy.

    4. Only one subsidy will be available per family unit.

    5. To participate, each employee is required to complete the Preliminary Housing and Rental Subsidy Information Form and return it to the Personnel Department.

    The claimant and others completed the required documentation and were included amongst those receiving an amount identified within the severance package as a "housing subsidy". These facts are not in dispute, while the allocation of the subsidy pursuant to ss. 57(2) and 57(3)(c) is the subject of a dispute between the claimant and the Commission.

    The Board, in its decision, concluded as follows:

    The housing subsidy included in a mine closure agreement being a new and novel approach to severance packages, perhaps should be classified as a relief granted to exempt that income from earnings as allowed in section 57(3)(c) for purposes mentioned in subsection 57(2). There were many valid considerations that affected the Board's decision, including CUB's presented with the appeal dockets and those presented by the appellant at the hearing that are now entered as exhibits.

    However, suffice to say that the housing subsidy had no relation to conditions of employment in that the criteria of eligibility was not based on seniority, job classification, wages or age of the employee. The subsidy was not given across the board, but rather by the established standard of eligibility and the amounts varied from zero, and in some cases, to more than what the appellants received in other cases. An employee of one year could have received $2,000, while an employee of 20 years qualified for nothing.

    There is no prior history of housing subsidy on termination while the mine was operating.

    The Board allowed the appeal of the claimant.

    I can find no error in the factual findings of the Board. On the contrary, I have praise for its accurate portrayal of the situation.

    Did the Board err in law? I am of the view that it did not.

    While there is an absence of jurisprudence on the matter, I am of the view that the amount which represents the housing subsidy is not subject to allocation under Regulation 57. It is not subject for a number of reasons. I have to conclude in that, while it is incident to a mine closing and termination of employment, the scheme under which it was offered protects it from allocation or, alternatively, it is considered under s. 57(3)(c) of the Regulation as "relief grants in cash or in kind".

    I was invited to consider the decision of Reed J. in CUB 10067 where the learned Umpire examined whether a certain insurance payment from a fund was a benefit; she concluded they were.

    I was also invited to consider the decision in Côté v. Attorney General of Canada (A-178-86) where Pratte J. stated at page 9:

    There is a connection between these indemnity payments and, first, the work done by the claimant (without which he would not be entitled to such insurance) and second, the wage which such indemnity payments replace.

    The present appeal has no factual relationship to the issues discussed by the Federal Court of Appeal in Côté.

    Finally, I was invited to consider the decision of Muldoon J. in CUB 11083 where he considered whether northern benefits could be allocated and concluded that these benefits ought to be allocated. Again, I am of the view that the circumstances in that appeal bear no resemblance to the present matter.

    I must conclude that the allocation made by the Entitlement Determination Officer was incorrect and the Board was justified in fact and in law in allowing the appeal.

    Finally, I am of the view that the circumstances which accompanied the payment of the subsidy, the closure of the mine and the depreciation of the claimant's residence, were in the alternative "relief grants" within the provisions of regulation 57(3)(c).

    The Commission's appeal is dismissed.

    R. J. MARIN


    OTTAWA, Ontario
    September 18, 1994