IN THE MATTER of the Employment Insurance Act
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IN THE MATTER of a claim for benefits by
CORINA OBIDOWSKI
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IN THE MATTER of an appeal by the Claimant to an Umpire
from a decision by the Board of Referees given
at Calgary, Alberta, on October 27, 1998.
DECISION
Heard at Calgary, Alberta, on June 9th, 1999.
THE HONOURABLE W.J. HADDAD, Q.C., UMPIRE:
This appeal was filed by the claimant. The issue involves the allocation of vacation pay which claimant did not disclose as earnings.
The claimant was represented by her husband Ray who made a commendable presentation on her behalf.
The claimant applied for benefits on September 27, 1996 and a benefit period was established effective September 15, 1996. After it was disclosed that claimant had earnings from employment she accepted with the University of Calgary, while on claim, the Employment Insurance Commission sought information and clarification of the amount reported by the employer as earnings and the earnings disclosed by claimant on her report cards. The claimant reported the sum of $6,082.00 for the period under review - whereas she actually earned a total of $6,333.60 - a difference of approximately $2,502.00 which represented vacation pay.
The claimant's grounds of appeal are that (a) the Board of Referees failed to observe a principle of natural justice and (b) the Board erred in law. There is no evidence to substantiate the first ground. The claimant's contention is that she submitted evidence to show that the Commission provided misleading information to the claimant and that it is bound by that advice. It is well established, however, the Commission is not bound by misleading information imparted by members of its staff for the simple reason that misleading information cannot override the provisions of the Employment Insurance Act and will not preclude application of the Act.
Moreover, it is also well established that the Doctrine of Estoppel is not applicable to the Commission.
With respect to the second ground of appeal claimant argues that vacation pay does not fall within the definition of earnings. The Commission allocated the vacation pay pursuant to the provisions of regulation 35(2) and the Board of Referees determined that as vacation pay fell within the definition of income the allocation was a proper allocation which resulted in an overpayment of benefits. The claimant's submission is firstly, that there is an ambiguity between regulation 15(2) and regulation 35(2). Regulation 15(2) provides:
15.(2) Subject to subsection (2.1), the earnings that are to be taken into account for the purposes of subsection 19(3) of the Act are wages, salary and commissions from any employment and payments for the performance of services or for the sale or provisions of a product of service in the course of employment, and shall not include any lump sum payments not directly attributable to the period of employment referred to in subsection (4) or any payments made by reason of layoff or separation from employment.
Regulation 19(3) determines how deductions shall be made from benefits whenever a claimant has failed to declare some earnings for a period for which benefits were claimed.
Regulation 35(2) provides:
35.(2) Subject to the other provisions of 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 section 19 or subsection 21(3), 22(5) or 23(3) of the Act, and for the purposes of sections 45 and 46 of the Act, are the entire income of a claimant arising out of any employment.
Claimant argues that regulation 15(2) specifically refers to wages, salary and commissions from any employment as earnings to the exclusion of vacation pay. Regulation 35(2) gives a broad interpretation of earnings by saying, inter alia, that the amount to be deducted as earnings from benefits payable under regulation 19 "are the entire income of claimant arising out of employment". Vacation pay, as pointed out by the claimant, is calculated on the basis of a percentage of wages or salary. Vacation pay therefore, is tied and related to wages or salary and forms part of a claimant's compensation arising out of employment. In my view there is no conflict or ambiguity between those two regulations.
In any event, in interpreting statutes, it is a legal principle that a later provision will take precedence over an earlier provision and that in the case of conflict or ambiguity the language of the later provision will prevail. Moreover, it has been firmly established in many recorded decisions that vacation pay represents earnings.
The Board of Referees did not fail to observe a principle of natural justice nor did it err in law. Claimant's vacation pay as earnings falls within the classification of income having arisen out of her employment. It was money she earned and to which she became entitled because she was employed.
The appeal is dismissed.
W.J. Haddad, Q.C.
Umpire
Dated at Edmonton, Alberta,
June 29th, 1999.