TRANSLATION
IN THE MATTER OF THE UNEMPLOYMENT INSURANCE ACT
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IN THE MATTER of a claim for benefits by
Yvon Lauzon
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IN THE MATTER of an appeal to an Umpire by the
Commission from a decision by the Board of Referees given
on March 24, 1998 in Ste-Thérèse, Quebec
CORRESPONDING FEDERAL COURT DECISION: A-85-99
DECISION
WALSH, UMPIRE
In this case, at issue was whether the claimant's retirement pension must be considered earnings as per sections 57 and 58 of the Regulations.
The claimant, who had worked as a fireman for the City of Montreal for 24 years, had to leave his employment on February 12, 1992 due to illness. He received 16 weeks of benefits and was paid a long-term disability pension of $647 a week effective June 13, 1992. When he filed his claim for benefits on June 15, 1992, he had not been declared "permanently disabled" by either the city or the doctors.
The Commission determined that the amounts he received were earnings as per section 57(2)(a) and reallocated them in compliance with section 58(11)(a). His appeal to the Board of Referees was denied, but his appeal to Umpire Marin, A-368-73A, was sent back to another Board for a ruling on whether section 57(3)(a) had to be applied in view of the recent jurisprudence.
The following is an excerpt from Umpire Marin's decision:
By virtue of a change in the interpretation of section 57(3) of the Act and as a result of Federal Court of Appeal rulings in Poitras (A-156-95) and in Forget (A-160-95), it is now recognized that the criterion to be applied is the permanence of the disability, not the retirement date. [TRANSLATION]
He quoted the following from Justice Marceau's decision in Poitras, A-156-95:
Only payments made to a recipient whose disability has been ruled permanent is covered by section 57(3).[TRANSLATION]
Umpire Marin considered but later rejected the Commission's argument to the effect that since the Poitras and Forget decisions had not yet been handed down when the case was before the Board of Referees, the Umpire could not take these decisions into consideration.
At the time, section 57(3) read as follows:
57(3) That portion of the income of a claimant that is derived from any of the following sources is not earnings for the purposes mentioned in subsection (2):
(a) disability pension or permanent settlement workers' compensation payments;
Of course, the date when the disability was considered permanent is critical. The employer, the City of Montreal, indicated that he had been declared permanently disabled on October 14, 1993 (exhibit 15), but the only medical certificate on file is one from Dr. Michel Benoit who declared that the claimant was permanently disabled back on April 9, 1992.
In Poitras, CUB 26961, which was upheld on appeal, Umpire Dubé made the following observation:
This allowance of the long-term health insurance type could be regarded as a disability pension within the meaning of paragraph 57(3)(a) of the Regulations if the employee is in fact retired by the city, and only as of the date of that retirement. The retirement occurs when the city's physicians determine that the employee is permanently disabled, or in other words will never be able to work as a fireman again. The employee then receives the status of permanently disabled person, and the city makes the necessary arrangements to fill his position.
In this case, there was no medical certificate from the city's doctors, but the city did indicate that the claimant had retired for health reasons and he was not declared permanently disabled until October 14.
The Board of Referees said that the proof of permanent disability must be based on medical evidence, not on what the employer has to say.
In its appeal, the Commission cited the following excerpt from Forget, A-169-95:
The nature of the payments must be defined, and the grounds for making them and the purpose they are serving at the time they are made which must be considered. [TRANSLATION]
It seems as if the city did not consider the disability permanent, even though Dr. Benoit's medical certificate indicates this was the case.
Umpire Dubé, who was quoted earlier, indicated that section 57(3)(a) takes effect "if the employee is in fact retired by the city, and only as of the date of that retirement." (It must be noted in that case that the claimant eventually went back to work).
It is perhaps unfortunate that the city did not act in 1992 after Dr. Benoit's medical report (if it has been sent to the city) to recognize the disability as being permanent. However, the date the employer, who is making the payments, acknowledges that the employee will no longer hold this position again must take precedence here, not the date of the disability.
A medical certificate is certainly more important than a mere statement by an employer to determine the date the disability began, but to meet the conditions of the exception in section 57(3)(a) of the Regulations, two criteria must be met: (1) permanent disability; and (2) the disability must be reported.
The onus is on the claimant to produce the evidence needed for the exception to apply.
In view of the foregoing, I believe the Board's decision contains an error in law and I uphold the Commission's appeal.
J.WALSH
UMPIRE
OTTAWA, Ontario
October 1, 1998