JUDGMENT OF THE FEDERAL COURT OF APPEAL
Date:
June 29, 1990
Docket:
A-106-89 / A-105-89 / A-104-89 / A-100-89/ A-103-89 / A-101-89 / A-102-89 / A-287-89 / A-286-89 / A-268-89
Umpire's Decision:
CUB 16029 / 16030 / 16032 / 16027 / 16028 / 16031 / 16033 / 16034 / 14387A / 16035
CORAM:
STONE J.A.
MacGUIGAN J.A.
DESJARDINS J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA,
applicant,
- and -
KEVIN KELLY, ROBERT DAMICO, ARCHIE EDEN, NEIL OLSON,
respondents.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA,
applicant,
- and -
CRAIG WILLIAMS, ROSS ARMSTRONG, MICHAEL AUSTIN, WERNER DRANGER, ALAIN GINDROZ, JOHN MCINTOSH, CHARLES MORRISON and CHARLES WHEELER,
respondents.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA,
applicant,
- and -
GEORGE MITCHELL,
respondent.
A-100-89 (CUB 16027)
BETWEEN:
THE ATTORNEY GENERAL OF CANADA,
applicant,
- and -
GEORGE KEAGAN, BLAINE BANNAR, JAMES ECKHARDT, SHELLEY MORRISH, KEVIN REID, KEVIN SCOTT, ROBERT STAVENOW, GERRY WARD, RAYMOND WHELLER, BRIAN PRICE, NIKKI CALDWELL, SCOTT BELYEA, LIL McKIM, and GARY MOLLINS,
respondents.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA,
applicant,
- and -
ROBERT GREEN, PHILLIP CHURCHILL, SHARON CUSOVICH, NICHOLAS CUSOVICH, JOSEPH DAVID, DANTE GARDENAL, WILLARD GARRAWAY, GERARD GUITAR, CHARLES HANSFORD, SHIRLEY HEISLER, ARCHIBALD HOPKINS, JAMES McDOUGALL, DENISE MILLER, JOCELYNE NADEAU, FRED TAYLOR, GERLIND NEFF, MICHAEL NICHOLLS, WM. NICHOLSON, CHARLES PIFER, JOHN SMITH, BRYAN TODERICK, EIN YOUNG, DAVID SNELL, DANNY BROWN, STEVEN HILL, FREDERICK SKUTA, THOS. TAYLOR, MALCOLM WHITE, JAMES WINGER, EDWARD HOPKINS, TIMOTHY GONYOU, ELIZABETH BOSAK, ANGUS CAMERON, KAREN TURNER and MICHAEL McNEVIN,
respondents.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA,
applicant,
- and -
ROBERT KNOX, HAROLD ANDERSON, JAMES W. BROCK, SCOTT CUFF, FRED CORBIER, NICHOLAS CUSOVICH, NIKKI CALDWELL, STIRLING CLARK, MICHAEL DUNPHY, PHILIPPE DESROCHES, MARIE DIONNE, DOUGLAS DONNELLY, PHILIP DODD, JOHN FITZGERALD, JAMES FIELD, DARRELL P. GIBBONS, EDWARD HOPKINS, JOHN HARDY, STEVEN HILL, EDITH HEMMINGSEN, ARCHIBALD HOPKINS, STEPHEN LAWRENCE, MYLES M. MORRISH, LILLIAN McKIM, LARRY MARKARIAN, JOSEPH MONTAGUE, ALVIN MILLER, DALE MACDONALD, DENNIS MOREAU, MICHAEL NICHOLLS, JOCELYN NADEAU, KEVIN OSSINGER, THOMAS PEAKE, MYLES PAGE, ERNEST ROSE, JOSEPH E. RICHARDS, GUY ROCHON, THOMAS STEVENSON, RUSSELL SACKS, ROBERT STAVENOW, KEVIN SCOTT, EDWIN SEWARD, KAREN TURNER, GARRY ROBERT WARD, PATRICIA WALKER, PAUL FRASER and RAYMOND SCHREMPF,
respondents.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA,
applicant,
- and -
BRIAN FARAGO,
respondent.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA,
applicant,
- and -
ROBERT GARY KOWALSKY,
respondent.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA,
applicant,
- and -
WILLIAM A. CHEESE,
respondent.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA,
applicant,
- and -
PATRICK FORD,
respondent.
REASONS FOR JUDGMENT
DESJARDINS J.A.:
These section 28 applications relate to a decision rendered on December 12, 1988 by an umpire acting under sections 95 and 96 of the Unemployment Insurance Act (the "Act"). 1 Unemployment Insurance Act (the The issue concerns the entitlement to receive unemployment insurance benefits where an insured person regularly worked a greater number of hours or days or shifts that are normally worked in a week by persons employed in full-time employment. At stake is whether concepts regarding leave pay and leave day, found in collective agreements, are interchangeable when subsections 37(3) and 42(4) of the Unemployment Insurance Regulations 2 are applicable.
All ten applications were board together. The respondents were all represented except Kowalsky, Cheese and Ford who were neither represented nor present at the hearing before us. The umpire dealt with these applications by rendering one decision. The applications were grouped together on account of the collective agreement to be interpreted. The applicant is seeking the same conclusion with regard to each application.
I shall deal with them in the order followed by the umpire.
KELLY, WILLIAMS, MITCHELL
Kevin Kelly and the persons mentioned in his application ("Kelly"), Craig Williams and the persons mentioned in his application ("Williams"), and George Mitchell and the persons mentioned in his application ("Mitchell") are all members of the Canadian Merchant Guild ("C.M.S.G.") which is a party to a collective agreement with the Canadian Life Carrier Association ("C.L.C.A.") which represents various shipping companies.
The Collective Agreement
The collective agreement for this group comprises one which expired on May 31, 1987 (the "collective agreement") and another which became effective June 1, 1987 (the "amended collective agreement").
Section 13, the key provision of the collective agreement expiring on May 31, 1987, reads thus:
13. Accumulated leave and leave pay
13.1 Leave pay shall be earned and payable for each working hour in the working week for which leave entitlement is credited. In the case of employees engaged in continuous annual employment, payment may be deferred to the end of the month following their service anniversary dates with that Company. Subject to the conditions and exceptions stated in the section, each Deck Officer shall be entitled to take leave from the vessel on which he works, the leave to be calculated as equivalent to two (2) days leave for each six (6) days worked of eight (8) hours per day (.334 factor).
13.2 Each eligible Deck Officer shall be credit with leave pay as follows:
Each eligible Deck Officer shall be entitled to .334 basic hourly rate for each hour worked.
13.3 Accumulated leave will not be granted for periods of less than fourteen (14) days without mutual consent.
13.4 When a Deck Officer has accumulated fourteen (14) days or more of leave and, provided he has made his request in writing fifteen (15) days in advance, he shall be granted a minimum of fourteen (14) days leave. However, all such leave shall be completed before the first day of December. On vessels operating twelve (12) months of the year, leave shall not be taken between December and the following January 15th, unless suitable arrangements can be made.
13.5 A Deck Officer shall not be completed to take leave from his ship or be prevented from doing so.
13.6 Only one (1) Deck Officer per vessel will be permitted to take leave at one time and leave shall be granted on the basis of rank for the vessel on which the Deck Officer is employed, unless otherwise mutually agreed upon amongst the Deck Officers involved.
13.7 Leave pay shall be paid at the end of every month, but leave will continue to accrue.
13.8 As Officer, prior to proceeding on leave, will notify the Master, in writing, of his intended date of return to the vessel. If he is recalled to work prior to the expiration of such leave, he shall be paid at overtime rate of pay for all work performed between the time of recall and the time his leave would normally have expired as per notification.
13.9 Effective June 1st, 1985, an Officer who has completed at least one (1) year of service with the Company shall be paid an allowance to defray reasonable travel expenses between the port of disembarkation and his home in Canada, once per season, one way, when taking leave in an amount not to exceed $180.00. Effective June 1st, 1986, an Officer who has completed at least one (1) year of service with the Company shall be paid an allowance to defray reasonable travel expenses between his vessel and his home in Canada once per season two ways, when taking leave in an amount not to exceed $360.00. These costs are to include first class surface passage plus meals and berth or economy air fare or car allowances. Effective June 1st, 1985, the car allowance will be twenty-three cents (0.23¢) per kilometre and effective June 1st, 1986, the car allowance will be twenty-four cents, (0.24¢) per kilometre where no public transportation is available. All claims for leave credit transportation allowances shall be supported by original receipts for the actual funds expended. 3
These provisions can be summarized in the following way:
a) Under article 13.1, each deck officer is entitled to take leave day from the vessel on which he works, subject to the conditions and exceptions stated in this article. The entitlement to leave day is calculated as equivalent to two days leave for each six days worked of eight hours per day (a .334 factor).
b) Under article 13.3, leave will not be granted for periods of less than fourteen days without the consent of the employer.
c) Under article 13.4, all such leave shall be completed before the first day of December.
d) Under article 13.1, each employee also earns leave pay which is payable for each working hours in the working week for which leave entitlement is credited.
e) Under article 13.2, each deck officer is credited with leave pay calculated at .334 of the basic hourly rate for each hour worked.
f) Under article 13.7, leave pay is normally paid at the end of every month, but leave continues to accrue. Under article 13.1, however, payment of leave pay may be deferred to the end of the month following the service anniversary dates in the case of employees engaged in continuous annual employment.
g) Under article 13.8, where a deck officer is recalled to work before the end of his leave period, he is paid at an overtime rate of pay until the time his leave would normally have expired.
Effective June 1, 1987, under article 13.2 of the amended collective agreement, each deck officer is granted scheduled time off without pay based on the .334 factor for each hour worked. 4
Effective June 1, 1987, article 13.7 of the collective agreement dealing with the monthly payment of leave pay was revoked. 5 Under article 14 of the amended collective agreement, the total hourly rate of pay includes the leave pay previously found in the agreement under the heading of "Leave pay per hour" (article 14). The respondent’s entitlement to time off is still calculated for each hour worked in accordance with the previous collective agreement.
The Facts
Kelly refiled an application for unemployment insurance benefits with the Unemployment Insurance Commission (the "Commission") on January 31, 1987. His new claim was made effective January 18, 1987. His last day of work was December 31, 1986. As of December 31, 1986, the Commission calculated that he was entitled to 49.49 days of unused accrued leave days. He was later advised by the Commission that his benefits were suspended from January 18 to February 6, 1987 inclusive, under section8 of the Act and subsection 42(4) of the Regulations, based on the allocation of 49.49 unused leave days. 6
Williams filed an application for unemployment insurance benefits with the Commission on December 31, 1986. His last day of work was December 29, 1986. He was entitled to 91.97 days of unused but accrued leave days as of December 29, 1986. The Commission advised Williams that he was not eligible for benefits from December 30, 1986 to April 4, 1987 because of those 91.97 days of unused but accrued leave time. 7
Mitchell filed an application for unemployment insurance benefits with the Commission on November 16, 1987. His last day of work was November 13, 1987. He was entitled to 74.50 days of unused leave and received some vacation pay. Mitchell was advised by the Commission that he would receive benefit payments effective from January 31, 1988. Under section 6 of the Act and subsection 37(3) of the Regulations, 71 lay days were being allocated by the Commission to the period of time from November 13, 1987 to January 23, 1988. The remaining 3.50 lay days was converted into monies earned and included in the allocation of vacation pay for the week commencing January 24, 1988. 8
Kelly, Williams and Mitchell appealed their disentitlement by the Commission. A majority of the board of referees which heard the appeals of Kelly and Williams denied the appeals and upheld the Commission’s allocation of leave days. The board of referees, which allowed Mitchell’s appeal. allowed the appeal on the issue of the allocation of leave days following his last day of employment but upheld the Commission’s allocation of vacation pay to the week following the last period of employment.
Both Williams and Kelly appealed the majority decision of the board of referees to the umpire. The Commission appealed the decision of the board of referees in Mitchell.
The Umpire’s Decision
In rendering his decision, the umpire indicated the following:
Counsel for seven of the claimants stated that "lay days", "accumulated leave", or "leave days" are interchangeable. Personally, I feel other terms in collective bargaining agreements are used, such as "accumulated leave pay" and "leave pay", so the employer has an answer to its requirements under the Labour Code and the employee has a term other than lay days or accumulated leave in the hope of bypassing Regulations 37(3) and 42(4) 9
The umpire stated that there were two issues in all the appeals, namely the allocation of lay days for the period immediately following the claimants’ last day of work, and the allocation of vacation pay to the period immediately following the claimants’ last day of work. 10 Since the respondents conceded that lay days were earnings, the real debate centered on how these lay days were arrived at. The collective agreement, said the umpire, provided inter alia, in article 13, that leave pay is paid at the end of every month. He then added:
Both Regulations 37(3) and 42(4) use the word "entitled" and before the claimant can be deemed to have worked a full week, he must be "entitled" to "lay days". "leave days", "accumulated leave" or "accumulated pay".
Here, the contract specifically states that leave pay is paid at the end of each month effectively removing any entitlement to leave pay as at that date. When a claimant is laid off his entitlement to lay days or accumulated leave or leave pay can only run from the first day of the month in which he is laid off.
As to the calculation, careful attention should be paid to the collective agreement, and for Kelly, Williams and Mitchell, this is the formulate that should be used. 11
The umpire held that Kelly, Williams and Mitchell were "bound by the terms of Regulations 37(3) and 42(4) of the Act but earnings are only from the first of the month to date of lay-off"... 12 date of lay-off
The Contentions of the Parties
In essence, the applicant submits that by confusing the notion of leave day and leave pay, the umpire erred in law since he restricted the application of subsections 37(3) and 42(4) of the Regulations in view of section 13.7 of the collective agreement. Subsections 37(3) and 42(4) of the Regulations and section 13.7 of the collective agreement deal with two different notions. The said regulations are "concerned with a period of time off work (leave day) while sections 13.7 of the collective agreement is concerned with leave pay. The crucial issue is therefore whether, by virtue of time worked, the respondents are entitled to leave days - a period of time off work. Whether they are entitled to leave pay for that period is irrelevant.
The respondents claim no error of law has been committed. In the alternative they add that if the matter is returned to the umpire, consideration should be given by this Court so as to direct the umpire to ensure that the leave entitlement be calculated in conformity with our decision in, Canadian Marine Officers Union v. Board of Referees and Walsh 13. which confirmed the earlier decision of an umpire in the matter of a claim for benefit by Henri Fortin 14 In that case, the umpire found that Fortin was entitled to only twenty-seven days of leave, rather than sixty, because some days of leave were lost by having not been taken before the prescribed date mentioned in the relevant collective agreement (i.e., December 1).
The Scheme of the Act
The Act sets out general criteria of eligibility which must be met in order to establish entitlement to unemployment insurance.
By section 6 of the Act 15 an insured person must inter alia have had an interruption of earnings from employment in order to qualify for any benefits. By section 2 of the Act, interruption of earnings means:
"interruption of earnings" means that interruption that occurs in the earnings of an insured person when after a period of employment with an employer the insured person has a lay-off or separation from that employment or a reduction in his hours of work for that employer resulting in a prescribed reduction in earnings;
Section 37 of the Regulations addresses the issue of when an interruption of earnings as defined in paragraph 2(1)(n) of the Act occurs. The general rule concerning interruption of earnings is found in subsection 37(1) which states:
Subject to this section, an interruption of earnings occurs when, following a period of employment with an employer, an insured person has a lay-off or separation from that employment and has or will have a period of seven or more consecutive days during which no work is performed for that employer and in respect of which no earnings that arise from that employment, other than earnings described in subsection 58(12), are payable or allocated.
By subsection 37(3) of the Regulations, when an employee has a lay-off or a separation from employment at a time when he is entitled to a period off work, the interruption of earnings will take place at the expiry of that period of time off work rather than at the time specified in subsection 37(1).
Subsection 37(3) of the Regulations states that:
37.(3) Where an insured person regularly works a greater number of hours, days or shifts than are normally worked in a calendar week by persons employed in full-time employment and for that reason is entitled under his contract of service to a period of one or more weeks off work, the insured person shall not be regarded as having had an interruption of earnings in respect of that period.
By section 8 of the Act, when an insured person, who qualifies under section 6, makes an initial claim, he is entitled to receive benefits for each week of employment that falls in the benefit period. By subsection 10(a) of the Act, a week of unemployment is a week in which an insured person does not work a full working week.
Section 42 of the Regulations, "Working a Full Working Week", "Employed Persons" describes during what period of time an insured person is deemed to have worked a full working week for the purposes of the Act, thereby precluding the payment of weeks of benefit after a claim period has been established. Subsection 42(4) states:
(4) Where in each week an insured person regularly works a greater number of hours, days or shifts than are normally worked in a week by persons employed in full-time employment and for that reason is entitled under his contract of employment to a period off work, that insured person shall be deemed to have worked a full working week during each week that falls wholly or partly in that period.
Discussion
By reading the words of subsections 37(3) and 42(4) of the Regulations in their ordinary, grammatical sense within the context in which they are used, it is clear and unambiguous that where, under his employment contract, an insured person is owed, on his last day of performing work, additional periods of time off work, this period of time ought to be allocated to that period following his last day of work. The words used in the said Regulations do not introduce consideration of entitlement and receipt of earnings or monies.
The umpire, in my view, confused the entitlement, payment and allocation of leave pay owed under the collective agreement with the notion of leave time which accumulates and liquidates separately under the collective agreement. He erred in law in concluding that leave pay and leave day (time off) were interchangeable, as he interpreted subsections 37(3) and 42(4) of the Regulations. He consequently erred in law by his allocation, under subsections 37(3) and 42(4) of the Regulations, of leave pay as earnings on the basis that "the amount of earnings is that amount of accumulated leave pay from the first day of the month when he was laid off". The fact that leave pay is normally paid at the end of the month under article 13.7 of the collective agreement has no application in this case. Whether leave pay is paid at the end of the month is completely irrelevant for the purposes of subsections 37(3) and 42(4) of the Regulations. Furthermore, in George Mitchell’s case, article 13.7 was not in effect since June 1, 1987.
On the other hand, the alternative submission of the respondents amounts to a request for a careful application of the collective agreement so as to make sure that those leave days that are lost because of a deadline prescribed in the collective agreement not be retained for purposes of calculating the leave entitlement.
I have no difficulty with this proposition which flows from a proper application of the collective agreement to the facts if they so exist. In view of our decision in Canadian Marine Officers Union, supra, which confirmed in Re Henri Fortin, supra, no special directive to the umpire or the Commission is however required.
KEAGAN, GREEN, KNOX FARAGO
George Keagan and the persons mentioned in his application ("Keagan"), Robert Green and the persons mentioned in his application ("Green"), Robert Knox and the persons mentioned in his application ("Knox"), and Brian Farago and the persons mentioned in his application ("Farago") are members of the Canadian Marine Union Local 401 ("CMU") which is a party to a collective agreement with ULS International Inc. ("ULS") effective April 1, 1984 to March 31, 1987 (the "collective agreement"). ULS International Inc. is the respondents’ employer for the purposes of this application.
The Collective Agreement
Article XVI of the collective agreement entitled "Vacation and Vacation Pay" reads in part:
ARTICLE XVI - VACATIONS AND VACATION PAY
16.01(a) All employees with less than two (2) years seniority with the Company shall receive a vacation of up to thirty (30) days, together with vacation pay calculated on the basis of four (4) percent of such employees’ earnings for time actually worked for the Company during the navigation season in question.
(b) All employees who have acquired two (2) but not more than eight (8) years seniority with the Company shall receive up to sixty (60) days vacation consisting of two periods of thirty days each or such other arrangement as mutually agreed and vacation pay to be calculated on the basis of six (6%) percent of such employees’ earnings for time actually worked for the Company during the navigation season in question.
(c) All employees who have acquired eight (8) years seniority or more with the Company shall receive up to sixty (60) days vacation consisting of two periods of thirty days each or such other arrangements as mutually agreed and vacation pay to be calculated on the basis of eight (8%) percent of such employees’ earnings for those actually worked for the Company during the navigation season in question.
(d) Vacation pay shall become payable when an employee leaves the vessel for any reason.
(e) For the purpose of this Article, an employee’s seniority shall be determined at any given time in accordance with the overall Company seniority list posted from time to time pursuant to Article 9.01.
16.02 Only employees who have acquired seniority may take vacations. Notwithstanding the foregoing all vacations shall be taken between June 15th and November 20th in the navigation season or such other arrangement as mutually agreed by the parties.
...
ARTICLE XVII - ACCUMULATED LEAVE PAY
17.01 (a) Accumulated leave pay shall be paid to all employees and shall be calculated for each hour worked by multiplying the basic hourly rate of any given employee by .334. The hourly rate of accumulated leave pay is set forth in Schedule "A" to this Agreement.
(b) An employee shall be paid his accumulated leave pay monthly or when he separates from the Company for any reason.
(c) Employees on three months on duty and one month off will accumulate leave pay for a three-month period until he takes the monthly vacation or until he terminates his employment for any other reason.
The Facts
Keagan filed an application for unemployment insurance benefits with the Commission on December 30, 1986. He based his entitlement to benefits on his employment as a marine corps maintenance worker with ULS. His last day of work was December 23, 1986. He worked one hundred and ten days. His basic hourly rate of pay was $9.18 and he normally worked fifty-six hours per week. Pursuant to the Commission’s calculation, on December 23, 1096, Keagan had accumulated 36.74 unused accrued leave days. He was advised by the Commission that his benefits were suspended from December 25, 1986 to January 29, 1987 under section 6 (formerly 17) of the Act and subsection 37(3) of the Regulations. The suspension was based on the allocation by the Commission of 36.74 unused leave days to the period immediately following his last day of work, from December 24, 1986 to January 29, 1987 inclusive. Keagan appealed his disentitlement.
Green filed an application for unemployment insurance benefits with the Commission on December 29, 1986. He had been employed by ULS International Inc. as an ordinary seaman. His last day of work was December 24, 1986. Pursuant to the Commission’s calculation, he had accrued 32.73 leave entitlement days of which 15.73 had not been taken by December 24, 1986. Green was advised by the Commission that his benefits were suspended from December 29, 1986 to January 2, 1987 inclusive in accordance with section 8 (formerly 19) of the Act and subsection 42(4) of the Regulations. The suspension was based on the allocation of 10 unused leave days to December 25, 26, 27 and from December 28, 1986 to January 3, 1987. The remaining 3.73 unused leave days were converted to monies and allocated under subsection 58(4) of the Regulations 17 to the week commencing January 4, 1987. Green appealed his disentitlement.
On September 2, 1987, the appeals of Keagan and Green were heard together by a panel of board of referees. The majority panel denied their appeal and upheld the Commission’s decision. The panel held that the Commission properly allocated the lay days accumulated by these claimants.
Knox filed an application for unemployment insurance benefits with the Commission on December 30, 1987. He had worked as an ordinary seaman with ULS. His last day of work was December 23, 1987. The Commission calculated that he had accumulated 37.12 unused leave days. Knox was advised by the Commission that his benefits were suspended from December 24, 1987 to February 6, 1988 in accordance with section 6 (formerly 17) of the Act and subsection 37(3) of the Regulations. The suspension was based on the allocation of 37.12 unused leave days and $933.37 vacation pay to the period immediately following his last day of work. Thirty-one days were allocated to the period from December 24, 1987 to January 23, 1988 inclusive. The remaining 6.12 days were converted into monies payable and allocated along with the vacation pay to the period of time from January 24 to February 6, 1988 inclusive. Knox appealed his disentitlement. On November 2, 1988, the board of referees denied his appeal and upheld the Commission’s decision. Upon consideration of the arguments before it, the Board concluded that the Commission correctly allocated lay days as earnings.
Farago filed his application for unemployment insurance benefits on October 7, 1987. He had worked as a wheelsman with ULS. His last day of work was October 2, 1987. The Commission calculated he had accumulated 20.37 unused leave days. Farago was advised by the Commission that his benefits were suspended from October 5 to October 16, 1987 inclusive in accordance with section 8 of the Act and subsection 42(4) of the Regulations. The suspension was based on the allocation of 17 lay days to the period of time ending October 16, 1987. Another 3.37 unused leave days was converted into monies and allocated, along with vacation pay, to the weeks commencing October 18 and October 25, 1987.
The Umpire’s Decision
The umpire reasoned in the following way: 18
Article XVII - Accumulated Leave Pay, provided inter alia that "an employee shall be paid his accumulated leave pay monthly or when he separates from the Company for am reason", (emphasis added). I am satisfied that the word "or" is disjunctive because the Collective Agreement makes no provision for the employee to make a choice, i.e., to be paid monthly or when he leaves or, if he wants to, how he should go about it. Therefore, in the case of Keagan, Green, Farago and Knox, the only entitlement for accumulated leave pay is that amount due from the first of the month until termination date, and that amount is earnings.
He concluded that "... each claimant is bound by the terms of Regulations 37(3) and 42(4) but the amount of earnings is that amount of accumulated leave pay from the first day of the month when he was laid off..." 19 when he was laid off...
The Contentions of the Parties
Here again, the applicant’s contention is that the umpire erred in law in failing to distinguish between the entitlement to leave pay and leave day, both which accumulate and liquidate separately under the collective agreement. What is relevant for the purposes of subsections 37(3) and 42(4) of the Regulations is article XVI of the collective agreement and not article XVII (17.01(b)). Essentially, the umpire erred by allowing the respondents entitlement to and allocations of and payment of leave pay credits under the collective agreement to determine how leave time ought to be allocated under subsections 37(3) and 42(4) of the Regulations.
The respondent find no error of law on the part of the umpire and has repeated their alternative conclusion mentioned earlier.
Discussion
The collective agreement does not provide for accumulated leave but only for "accumulated leave pay" (Article XVII), for "vacations" and "vacation pay" (Article XVI). My reasoning here is however, the same as previously stated.
The umpire, in my view, confused accumulated leave pay and leave day ("vacations"). Article XVI of the collective agreement was the only governing provision for the purposes of applying subsections 37(3) and 42(4) of the Regulations.
KOWALSKY, CHEESE, FORD
All three are members of the Seafarers’ International Union of Canada (SIU) and are governed by the Great Lakes Agreement (the "collective agreement") between the SIU and the Canadian Lake Carriers Association (CLCA).
The Collective Agreement
Article 31 of the collective agreement, effective June 1, 1984 until May 31, 1987, deals with leave days and leave pays in the following manner: 20
31. LEAVE AND LEAVE PAY
(a) Subject to conditions stated in this section, each employee shall be entitled to take leave from the vessel upon which he works.
(b) Unlicensed crew members shall not be permitted from taking leave provided a qualified replacement, as determined by the Captain or Chief Engineer, is available. Any refusal by the Captain or Chief Engineer to accept a replacement shall be subject to the grievance procedure.
(c) Any employee who leaves a vessel without being properly relieved shall forfeit his or her job with the Company.
(d) Leave after November 30th in any year will be granted on a seniority basis to one unlicensed crew member per watch-keeping position and one day worker per each department subject to subparagraph (b) above.
(e) Leave days will be calculated by multiplying the total hours worked by the factor of .334 divided by 8; leave will only be granted for full days accumulated but in any case not for less than thirty (30) days.
(f) Leave pay shall be calculated by multiplying .334 X basic hourly rate for each hour worked.
(g) Leave pay shall be paid every month.
(h) Effective June 1, 1985 an employee who has completed at least one year of service with the Company, shall be paid an allowance to defray reasonable travel expenses between the port of disembarkation and his home in Canada once per season one way when taking leave in an amount not to exceed one hundred and eighty dollars (180.00$). Effective June 1, 1986, an employee who has completed at least one year of service with the Company, shall be paid an allowance to defray reasonable travel expenses between the vessel and his home in Canada once per season two ways when taking leave in an amount not to exceed three hundred and sixty dollars (360.00$). These costs are to include first class surface passage plus meals and berth or economy air fair or car allowance. Effective June 1, 1985 the car allowance will be twenty-three cents (0.23¢) per kilometre and effective June 1, 1986 the car allowance will be twenty-four cents (0.24¢) per kilometre where no public transportation is available. All claims for leave credit transportation allowance shall be supported by original receipts for the actual funds expended.
Under these provisions, each employee is entitled to take leave from the vessel upon which he works (paragraph 31(a)). The number of leave days allocated to each employee is calculated by multiplying the total hours worked by the factor of .334 divided by 8. Leave cannot be taken for less than thirty full days at a time (paragraph 31(e)).
Each employee is also compensated by leave pay which is calculated by multiplying .334 times the basic hourly rate for each hour worked. Leave pay is paid every month while the employee is working (paragraphs 31 (f) and (g)).
Under paragraph 31(k) of the collective agreement effective June 1, 1987 to May 31, 1990 ("renewed Great Lakes Agreement"), article 31 of the Great Lakes Agreement remained in effect during the 1987 selling season.
The Facts
Kowalsky filed an application for unemployment insurance benefits with the Commission on January 30, 1987. He based his entitlement to unemployment insurance benefits on his employment as a sailor with P.H. Shipping. His last day of work was November 11, 1986. Normally, he would work eight hours a day, seven days a week. While on continuing claim, he worked for Socanov Inc. (formerly Branch Lines Limited) from May 12 to July 6, 1987 as a relief chef. His basic hourly rate of pay was $11.15. As of July 7, 1987, he was entitled to nineteen days of accrued leave which he had not used up. He was advised by the Commission that he was not entitled to receive benefits from July 6, to July 24, 1987 inclusive, because he had failed to prove he was unemployed as required by section 8 (formerly 19) of the Act. On the basis of the advice of his employer Socanov Inc. that Kowalsky had accumulated nineteen days of used leave time, the Commission applied subsection 42(4) of the Regulations. Five days of unused leave time were allocated from July 7 to July 11, 1987 and fourteen days from July 12 to July 25, 1987. Kowalsky appealed his disentitlement. His appeal was heard by a panel of the board of referees on October 8, 1987. The Board denied the respondent’s appeal and upheld the Commission’s original decision. The board of referees concluded that subsection 42(4) of the Regulations indicated that Kowalsky’s entitlement to nineteen days of leave accrued from May 12 to July 6, 1987 ought to be allocated to the period immediately following his last day worked. Consequently, nineteen days of leave had been properly allocated to the period of time from July 7 to July 25, 1987. By notice of appeal dated October 28, 1987, Kowalsky appealed his decision of the board or referees to the umpire.
Cheese filed with the Commission on January 19, 1986, an application for benefits which was made effective January 5, 1986. This claim terminated on January 3, 1987. On January 12, 1987, the respondent filed with the Commission another application for unemployment insurance benefits. He based his entitlement to unemployment insurance benefits on his employment as relief ordinary seaman with Algoma Central Railway - Marine Division. He worked for Algoma Central Railway - Marine Division from October 17 to December 1, 1986. He worked a seven-day, eight-hour week. He was paid a basic hourly rate of $8.41 and was entitled to 17.20 days of unused accrued leave. He was advised by the Commission that he was not entitled to receive benefits from December 7 to December 13, 1986 inclusive, because he had failed to prove he was unemployed as required under section 8 (formerly 19) of the Act. Based on the advice of the respondent’s employer that he had accumulated 17.20 days of unused leave time, the Commission applied subsection 42(4) of the Regulations and allocated seven days to the period between December 7 to December 13, 1986 inclusive. Under subsection 58(4) of the Regulations, the remaining portion of the respondent’s unused but accrued leave was converted to monies earned and included in the allocation of $336.40 to the week commencing November 30, 1986 and $349.86 to the week commencing December 14, 1986. He appealed his disentitlement. On April 8, 1987, the majority of the Board denied his appeal and upheld the decision of the Commission. By notice dated April 10, 1987, he appealed the majority decision of the board of referees to the umpire.
Ford filed an application for unemployment insurance benefits with the Commission on September 22, 1987. He based his entitlement to unemployment insurance benefits on his employment as a relief wheelsman with Canada Steamship Lines Inc. His last day of work was September 18, 1987. He worked fifty-six days for Canada Steamship Lines Inc. between July 25 and September 18, 1987. He normally worked a fifty-six hour week. As of September 18, 1987, he had accumulated 18.54 unused leave days. His application was made effective September 20, 1987. However, the Commission further advised him that he would not be entitled to any benefits until the week commencing October 4, 1987. The suspension of benefits was based on:
(a) the allocation under subsection 42(4) of the Regulations of 15 unused leave days the respondent had accrued from September 19 to October 3, 1987; and
(b) the allocation to the week commencing October 4, 1987 of $119.50 vacation pay received on September 18, 1987, and the remaining 3.54 leave days converted into monies earned under subsection 58(4) of the Regulations.
He appealed his dientitlement. On November 13, 1987, the Board allowed the respondent’s appeal in part. The Board rescinded the Commission’s allocation of the 18.54 accrued leave days from September to October 3, 1987 and during the week commencing October 4, 1987, but upheld the Commission’s allocation of vacation pay as earnings under section 57 of the Regulations. The board of referees concluded that Ford was not paid for accrued leave days and that there was no evidence in the file to support that contention. The Commission appealed the decision of the board of referees.
The Umpire’s Decision
The umpire stated the following: 21
Article 31(a) of the 1984-1987 agreement provides that leave pay shall be paid every month. Thus there is no "entitlement" to enable Regulations 31(3) and 42(4) to apply, except during the period of time worked in the month the claimant was laid off. It is true the parties are entitled to money or leave. Thus if a seaman works 21 days and earns 7 days off he can take these days or he will be paid for them at the end of the month. In either case, at the end of the month there is no further entitlement.
He concluded that "... each claimant is bound by the provisions of subsections 37(3) and 42(4) of the Regulations, but leave pay shall only be that amount earned from the first day of the month when he was laid off.. 22
The Applicant’s Contention
The applicant submits essentially that by confusing the notion of leave day and leave pay, the umpire erred in law since he restricted the application ofsubsections 37(3) and 42(4) of the Regulations in view of the leave pay provisions of the collective agreement. Subsections 37(3) and 42(4) of the Regulations and paragraphs 31(f) and (g) of the collective agreement deal with two different notions. The said regulations are concerned with a period of time off work (leave day) while paragraphs 31(f) and (g) of the collective agreement are concerned with leave pay. The crucial issue is whether, by virtue of time worked, the respondents are entitled to leave days - a period of time off work. Whether they are entitled to leave pay for that period is irrelevant.
Discussion
The umpire, in my view, confused leave pay and leave day. The leave pay provisions of section 31 of the collective agreement were the only governing provisions for the purpose of applying subsections 37(3) and 42(4) of the Regulations. The leave pay provisions of section 31 of the collective agreement are irrelevant for the purpose of applying subsections 37(3) and 42(4) of the Regulations.
CONCLUSION
For these reasons, I would allow these section 28 applications. I would set aside the decision of the umpire dated December 12, 1988. I would return the matter to him for reconsideration on the basis that the leave pay provisions of the various collective agreements are irrelevant for the purpose of applying subsections 37(3) and 42(4) of the Regulations to the facts of these cases.
There being no special reasons to allow costs to either party, I would order accordingly.
"Alice Desjardins "
J.A.
(4) Wages or salary payable to a claimant under a contract of employment without the performance of services and moneys payable in consideration of a claimant returning to or commencing work with an employer shall be allocated to the period for which such wages, salary or monies, as the case may be, are payable.