UNEMPLOYMENT INSURANCE |
Canada v. Plasse
A-693-99
Décary J.A.
5/10/00
7 pp.
Judicial review of Umpire's decision settlement monies paid to claimant after wrongful dismissal not "earnings" within Unemployment Insurance Regulations, s. 57--Claimant dismissed in November 1994--Applied for unemployment insurance benefits on basis fired before filing wrongful dismissal complaint--In October 1995 Director of Labour Standards issuing ruling ordering: (1) payment of $28,470.09 to Labour Standards Tribunal for wages lost; (2) reinstatement of claimant--Before hearing of appeal therefrom claimant, employer negotiated settlement in amount of $35,000--When advised of settlement, Canada Employment Insurance Commission informing claimant $35,000 less legal fees constituting earnings to be deducted from benefits--Board of Referees allowing appeal, holding monies received based on claimant foregoing right to reinstatement, therefore not earnings--Umpire confirming Board's decision; holding Canada (Attorney General) v. Vernon (1995), 189 N.R. 308 (F.C.A.) defining "earnings" as consideration for present or past work, Canada (Attorney General) v. Harnett (1992), 140 N.R. 308 (F.C.A.) not expressly deciding compensation for giving up right to reinstatement constituting "earnings"--Application allowed--Umpire should have noted obvious flaw in Board's decision: Director of Labour Standards' ruling not directed only at claimant's reinstatement; also ordered employer to pay claimant sum for wages lost--Board wrong to rely solely on self-serving assertion of counsel to conclude settlement in no way related to wages lost--No evidence settlement monies related only to future right of reinstatement--Harnett distinguished--In this case, settlement relating not to speculative claims in lawsuit, but to actual orders made by appropriate authority after hearing claims--Claimant had distinct, negotiable right to be reinstated and employer had no choice but to put price tag on that right--Not same type of settlement as in Harnett--Harnett overshadowed by Vernon because of narrow definition given to "earnings" in Vernon--Cannot now say amount paid to employee for giving up right to return to former position "earned by labour" or "given in return for work done"--If settlement encompassing both lost wages, renunciation of right to reinstatement granted by appropriate authority, only former constituting "earnings" and only value attributable to former allocated pursuant to s. 57--Although claimant not showing payment received not earnings, succeeded in distinguishing Harnett--Matter referred back to Chief Umpire with direction Board of Referees' decision should be set aside, matter referred back to Board for new hearing, determination in accordance with these reasons--Unemployment Insurance Regulations, C.R.C., c. 1576, s. 57.