A-318-79
Jacques Gagnon (Applicant)
v.
Attorney General of Canada (Respondent)
Court of Appeal, Pratte and Le Dain JJ. and Hyde
D.J.—Montreal, September 21; Ottawa, Novem-
ber 5, 1979.
Judicial review — Unemployment insurance — Application
to set aside decision of Umpire upholding a majority decision
of a Board of Referees concerning an amount applicant was
paid as vacation pay — Amount was paid pursuant to Quebec
Decree concerning the construction industry and was received
by applicant three months after termination of employment —
During the period of his employment, applicant took four
weeks vacation without pay — Whether the amount should be
allocated to the four weeks unpaid vacation or whether it
should be allocated to the weeks following the date on which it
was received — Federal Court Act, R.S.C. 1970 (2nd Supp.), c.
10, s. 28 — Unemployment Insurance Regulations, SOR/71-
324, s. 173(13), (14), (15), (16).
APPLICATION for judicial review.
COUNSEL:
R. Paquette for applicant.
G. Leblanc for respondent.
SOLICITORS:
Paquette & Meloche, Montreal, for applicant.
Deputy Attorney General of Canada for
respondent.
The following is the English version of the
reasons for judgment rendered by
PRATTE J.: Applicant is asking that a decision
of an Umpire under sections 94 et seq. of the
Unemployment Insurance Act, 1971, S.C. 1970-
71-72, c. 48, be set aside under section 28 of the
Federal Court Act, R.S.C. 1970 (2nd Supp.), c.
10. By that decision the Umpire upheld a majority
decision of a Board of Referees respecting the
allocation, under section 173 of the Unemployment
Insurance Regulations, SOR/71-324, as amended,
of a sum of $594 which applicant was paid on
December 12, 1977 as vacation pay.
From October 8, 1976 to September 21, 1977
applicant was employed by the firm Simard and
Beaudry on construction work at James Bay. In
December 1977, almost three months after his
employment had terminated, he received the sum
of $594 from the Office de la construction du
Québec which he was owed as vacation pay under
article 20.06 of the Construction Decree [O.C.
1287-77, Reg. 77-234] in effect in the Province of
Quebec at that time. It is the allocation of this sum
of $594 for purposes of the Unemployment Insur
ance Act, 1971 that is at issue here.
From January 1 until the end of April 1977
applicant took four weeks of leave for which he
was not paid. Applicant maintained that the sum
of $594 which he received should be allocated to
these four weeks of vacation he took before his
employment terminated. Respondent maintained
for his part that this sum should be allocated to the
weeks following the date on which it was paid.
The allocation of sums paid as vacation pay is
governed by subsections 173(13),(14),(15) and
(16) of the Unemployment Insurance Regulations.
These provisions read as follows:
173... .
(13) Holiday pay or vacation pay of a claimant shall be
allocated to such number of consecutive weeks, beginning with
the first week that is wholly or partly within his holiday period,
as will ensure that the claimant's earnings in each of those
weeks, except the last, are equal to the weekly rate of his
normal earnings from his employer or former employer.
(14) Notwithstanding subsection (13), holiday pay or vaca
tion pay, other than for a day referred to in subsection (12),
(a) that is paid or payable to a claimant at the time of his
lay-off or separation from employment or prior thereto in
contemplation of the lay-off or separation, and
(b) that is not allocated to any specific weeks of holidays or
vacation that occurred prior to the lay-off or separation
shall be allocated to such number of consecutive weeks, begin
ning with the first week in which the lay-off or separation
occurs, as will ensure that the claimant's earnings in each of
those weeks, except the last, are equal to the weekly rate of his
normal earnings from his employer or former employer.
(15) Notwithstanding subsection (14), where a general con
tinuous holiday period occurs at the place where a claimant is
employed and that holiday period commences within six weeks
after the claimant's lay-off or separation, holiday pay or vaca
tion pay described in subsection (14) shall be allocated to weeks
as described in that subsection beginning with the first week of
the continuous holiday period.
(16) Where the earnings described in subsections (9) and
(14) are paid after a claimant's lay-off or separation occurs and
have not been allocated pursuant to subsections (9), (10), (13),
(14) or (15), those earnings shall be allocated to such number
of consecutive weeks, beginning with the week in which those
earnings are paid, as will ensure that the claimant's earnings in
each of those weeks, except the last, are equal to the weekly
rate of his normal earnings from his employer or former
employer.
The sum of $594 to be allocated here was paid
to applicant, as I have mentioned, under the
Decree respecting the construction industry. For
purposes of the present dispute the provisions of
articles 20.01 and 20.06 and subparagraph
21.03(10)(c) of this Decree must be borne in mind.
Articles 20.01 and 20.06 read in part as follows:
20.01 Compulsory annual vacations: Each year every employee
is entitled to three weeks' annual compulsory vacation which
shall be taken as follows:
(1) Summer: All construction job-sites shall close down during
the last two full calendar weeks in July and more specifi
cally between the following dates:
between 00.01 hours July 17, 1977 and 24.00 hours July
31, 1977;
between 00.01 hours July 16, 1978 and 24.00 hours July
29, 1978.
(3) Winter: All construction job-sites shall be closed for one
week during the Christmas and New Year Holiday and,
more specifically between the following dates:
between 00.01 hours December 24, 1976 and 24.00 hours
January 2, 1977;
between 00.01 hours December 24, 1977 and 24.00 hours
January 2, 1978;
between 00.01 hours December 24, 1978 and 24.00 hours
January 2, 1979.
20.06 Vacation pay and general holiday pay:
(1) Amount: At the end of each week, the employer shall
credit each employee 10% of wages earned during the
week, such amount representing the vacation and general
holiday pay, or 6% for the cumpulsory annual vacation and
4% for general holidays.
(2) Obligation of the employer: The employer shall submit a
monthly report to the board, showing amounts so credited
to each of his employees.
(3) Qualifying periods: There are two qualifying periods:
(a) the first runs from January 1 to April 30;
(b) the second runs from May 1 to December 31.
(4) Remittance of annual vacation and general holiday pay:
(a) The board shall remit the vacation and holiday pay to
cover the first (1st) qualifying period by mailing to
each employee a cheque at his last known address
during the first eight (8) days of December of the
current year,
(b) The board shall remit the vacation and holiday pay to
cover the second (2nd) qualifying period by mailing to
each employee a cheque at his last known address
during the first eight (8) days of July of the following
year.
(c) No one may claim before December 10 or July 10, as
the case may be, the obligatory indemnity for annual
vacation or holidays.
(d) Notwithstanding the provisions of paragraph c, fol
lowing the death of an employee, his legal heirs may
claim the deceased annual vacation pay and general
holiday pay....
Subparagraph 21.03(10)(c) provides that para
graphs (1),(2),(3) and (4) of article 20.01 do not
apply to work which, like that on which applicant
was employed, was "carried out on the James Bay
project".
Pursuant to the Decree applicant was thus en
titled to three weeks of vacation each year; he was
also entitled to vacation pay equal to 6 per cent of
his wages payable in two instalments: the pay
earned from January 1 to April 30 was to be paid
at the beginning of the following December while
the pay earned from May 1 to December 31 was
payable at the beginning of July of the following
year.
It has been established that the sum of $594
that is to be allocated was received by applicant on
December 12, 1977 and represents the vacation
pay he earned for his work from January 1 to
April 30, 1977. It has also been established, as I
stated earlier, that during this same period, from
January 1 to April 30, 1977, applicant took four
weeks of leave for which he was not paid.
According to respondent, this sum of $594
should be allocated as prescribed by subsection
173(16) of the Regulations since it was "paid after
... lay-off or separation" occurred.
Counsel for the applicant maintained for his
part that the rule set out in subsection 173(16) is
not applicable in this case. According to the very
wording of subsection 173(16), the rule it sets
forth applies only to vacation pay "described in
subsection . .. (14)". According to counsel for the
applicant, earnings are described in subsection
(14) only if they are "not allocated to any specific
weeks of holidays or vacation that occurred prior
to the lay-off or separation". The sum received by
applicant, again according to his counsel, should
be regarded as having been allocated to the weeks
of vacation that occurred prior to his separation
because this sum, still according to counsel for the
applicant, was intended to pay for the vacation
which applicant had taken in advance between
January 1 and April 30, 1977. It was to these
weeks of vacation that the sum he received should
therefore be allocated, applicant argued.
I have come to the conclusion, very regretfully,
that applicant's argument cannot be accepted. In
my view the Decree does not establish any connec
tion or correlation between the vacation pay
earned during a given period and the vacation
taken during that period. If this were not so, there
would be no reason why the pay earned during a
qualifying period should be payable several months
later. This being the case, it cannot be said, as
applicant maintained, that the vacation pay he
earned from January 1 to April 30, 1977 was
clearly meant to pay for the vacation taken during
this same period. It follows that the pay received
by applicant "is not allocated to any specific weeks
of holidays or vacation that occurred prior to the
lay-off or separation" (subsection 173(14) of the
Regulations). This sum must therefore be allocat
ed in the manner prescribed by subsection 173(16)
of the Regulations, as respondent maintained.
For these reasons I would dismiss the applica
tion.
* * *
LE DAIN J.: I concur.
* * *
HYDE D.J.: I concur.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.