Date: 20030130
Neutral citation: 2003 FCA 51
CORAM: Décary J.A.
Docket: A-70-02
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
GARY BUCHANAN
Respondent
Docket: A-68-02
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
ROGER W. FOY
Respondent
Heard at Halifax, Nova Scotia, on January 30th, 2003.
Judgment delivered from the Bench at Halifax, Nova Scotia, on January 30th, 2003.
REASONS FOR JUDGMENT OF THE COURT BY: SHARLOW J.A.
Date: 20030130
Neutral citation: 2003 FCA 51
CORAM: Décary J.A.
Docket: A-70-02
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
GARY BUCHANAN
Respondent
Docket: A-68-02
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
ROGER W. FOY
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Halifax, Nova Scotia
on January 30th, 2003.)
[1] The respondents in both of these applications for judicial review are employees of Cavendish Farms in Prince Edward Island.
[2] Their normal work schedule requires them to work a twelve hour shift for four days, followed by four days off. In any given week, they will work either three days (36 hours), or four days (48 hours). They average 42 hours per week over an eight week cycle.
[3] Cavendish Farms was shut down from 7:00 p.m. on Saturday, February 3, 2001 until 7:00 a.m. on Thursday, February 8, 2001. As a result, the respondents could not work their normal shifts on Monday, Tuesday and Wednesday, February 5, 6 and 7, 2001. They worked their normal 12 hour shift on Thursday, February 8, 2001. Because of the shut-down, they missed three shifts, working only on Thursday of that week.
[4] The respondents made a claim for benefits under the Employment Insurance Act, R.S. 1996, c.23 for the period of the shut-down. Their entitlement depends on whether the week from Sunday, February 4 to Saturday, February 10 meets the definition of "week of unemployment" in section 11 of the Act.
[5] The respondents' claims were denied on the basis that they were deemed by subsection 11(4) of the Act to have worked a full week during the week of February 4 to February 10, 2001.
[6] The respondents appealed successfully to the Board of Referees. The Crown appealed to the Umpire who, in a decision rendered on November 30, 2001, affirmed the decision of the Board of Referees. The Crown now seeks judicial review of the Umpire's decisions, on the basis that the Umpire erred in law in finding that subsection 11(4) of the Act did not apply.
[7] Subsections 11(1) and (4) of the Act read as follows:
| 11. (1) A week of unemployment for a claimant is a week in which the claimant does not work a full working week. ... |
11. (1) Une semaine de chômage, pour un prestataire, est une semaine pendant laquelle il n'effectue pas une semaine entière de travail. ... |
| (4) An insured person is deemed to have worked a full working week during each week that falls wholly or partly in a period of leave if (a) in each week the 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 (b) the person is entitled to the period of leave under an employment agreement to compensate for the extra time worked. |
(4) L'assuré qui travaille habituellement plus d'heures, de jours ou de périodes de travail que ne travaillent habituellement au cours d'une semaine des personnes employées à plein temps et qui a droit, aux termes de son contrat de travail, à une période de congé est censé avoir travaillé une semaine entière de travail au cours de chaque semaine qui est comprise complètement ou partiellement dans cette dernière période. |
[8] The Umpire explained as follows, the objective of subsection 11(4):
The objective of subsection 11(4) is to prevent a worker from receiving employment insurance benefits for a period for which he is already compensated according to his or her special work schedule. In various decisions dealing with the interpretation of subsection 11(4), the issue was whether the period for which a claim was contested was part of the "leave" to which the claimant was entitled as part of the working arrangements with the employer. This was the case in the following CUB decisions: 33973, 45691, 16926 and 20866 (upheld by the Federal Court of Appeal in A-708-92). In this last decision, Justice Joyal referred to an important consideration in that the claimant had not suffered a loss of remuneration. He wrote:
"Subsection 11(4) is a clear provision expressed in clear terms. It means that any leave entitlement is deemed to be a working period and, under subsection 37(3), such leave does not constitute an interruption of earnings."
[9] The Umpire went on to note that the respondents in these cases are not attempting to claim benefits for their scheduled leave period. They claim benefits because they lost three days of work due to the shut-down of their employer's operation.
[10] Subsection 11(4) applies only if the respondents regularly work a greater number of hours, days or shifts than are normally worked in a week by persons employed in full-time employment.
[11] The Board of Referees accepted the submission of counsel for the respondents that in the Province of Prince Edward Island, the standard work week is 48 hours, pursuant to subsection 15(1) of the Employment Standards Act, R.S. P.E.I. 1988, Cap. E-6.2. Although the Crown had asserted before the Board of Referees that a normal work week consists of 40 hours, no evidence was presented to support that assertion. The Board found that the respondents did not regularly work more than the normal number of hours, days or shifts in the week, and concluded that subsection 11(4) could not be applied.
[12] The Umpire held that there was strong and cogent evidence before the Board to support their factual conclusion as to the number of hours in a normal work week. For that reason, he could not conclude that the Board had erred in law when they found subsection 11(4) to be inapplicable.
[13] We agree with the Umpire. We note also that the Board could not have concluded that the respondents worked more hours in each week than persons employed in full-time employment because there was no evidence that the normal number of hours worked by a person in full-time employment is 40 hours.
[14] Counsel for the Crown also argued that the Umpire had misapplied paragraph 11(4)(b) when he suggested in his reasons that there was no evidence that the periods of leave in the respondents' normal work schedule were "compensation" for their normal 12 hour work days. We do not find it necessary to reach a conclusion on this point, but we note that the French version of subsection 11(4) does not refer to that element of compensation, which seems to have been added to the English version after the decision in Canada (Attorney General) v. Duguay, [1996] F.C.J. No. 521 (F.C.A.).
[15] We will therefore dismiss these applications for judicial review, with one set of costs.
K. Sharlow
J.A
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-70-02
STYLE OF CAUSE: ATTORNEY GENERAL OF CANADA v. GARY
BUCHANAN
DOCKET: A-68-02
STYLE OF CAUSE: ATTORNEY GENERAL OF CANADA v. ROGER W. FOY
PLACE OF HEARING: HALIFAX
DATE OF HEARING: JANUARY 30, 2003
REASONS FOR JUDGMENT OF THE COURT: DÉCARY, NOËL AND SHARLOW JJ.A.
RENDERED FROM THE BENCH BY: SHARLOW J.A.
DATED: JANUARY 30, 2003
APPEARANCES:
JESSICA HARRIS FOR THE APPLICANT
PERLENE MORRISON FOR THE RESPONDENT
SOLICITORS OF RECORD:
MORRIS ROSENBERG FOR THE APPLICANT
DEPUTY ATTORNEY GENERAL OF CANADA
STEWART McKELVEY STIRLING SCALES FOR THE RESPONDENT
CHARLOTTETOWN