Digests

Decision Information

Decision Content

[2022] 3 F.C.R. D-8

Employment Insurance

Applications for judicial review of two decisions by Social Security Tribunal, Appeal Division (Appeal Division) — At issue was eligibility of two defendant-claimants for Employment Insurance Emergency Response Benefit (EI-ERB) established under COVID-19 Emergency Response Act, S.C. 2020, c. 5, Part 18 — Applications raised interpretation and scope of Employment Insurance Act, S.C. 1996, c. 23 (Act), s. 153.9 — Both defendants (Messrs. Gagnon and St-Louis) did not participate in appeal, made no representations before Court — Faced with disastrous consequences brought about by COVID-19 pandemic for Canadian economy and workers, Canadian government quickly adopted two income replacement programs on March 25, 2020 — First program was created by Canada Emergency Response Benefit Act, S.C. 2020, c. 5 (CERB Act), s. 8; second program, EI-ERB, temporarily replaced benefits claimants could have claimed under Act — Minister of Employment and Social Development issued Interim Emergency Orders to mitigate economic impact of pandemic — In his first Interim Order, Minister added ss. 153.5 and 153.9(1),(2),(3) to Act; subsequently second Interim Order was issued adding s. 153.9(4) to Act — Under s. 153.8, any “claimant” may apply for EI-ERB for any two-week period beginning on a Sunday and ending between March 15 and October 3, 2020 — S. 153.9(1) governing eligibility requirements — Moreover, s. 153.9(2) provides that claimant is not eligible to receive EI-ERB if receiving other listed types of benefits — Defendant Mr. Gagnon submitted initial claim for employment insurance benefits effective March 15, 2020 — Benefits claimed were converted to EI-ERBs by virtue of ss. 153.5 and 153.9(1)(b) — Although his last paid day was April 23, 2020, Mr. Gagnon declared being without pay from March 15, 2020, to May 16, 2020 — Mr. Gagnon informed Commission of having received remuneration from his employer on April 2, 2020, explaining employer had decided to continue paying him even though he had not worked — He subsequently informed Commission in October 2020 that he had been paid by his employer until April 25, 2020 — He then asked whether he would be required to repay benefits already received between March 15 and April 25, 2020 — Commission reviewed Mr. Gagnon’s file, sent him notice of debt due to remuneration received from employer between these dates — Initial overpayment for this period was $1,376 — Mr. Gagnon contested this amount — Commission concluded that Mr. Gagnon was indeed ineligible for benefits for entire period from March 15, 2020, to May 9, 2020 — Mr. Gagnon again contested amount of $1,376 claimed from him, but Commission upheld its initial decision, modifying amount of overpayment to $2,752 — This calculation was based on amounts received by Mr. Gagnon from his employer during two four-week blocks from March 15 to May 9, 2020 — Mr. Gagnon appealed Commission’s decision to General Division — General Division agreed with Commission’s position, concluded that Mr. Gagnon was not eligible to receive EI-ERB between March 15 and May 9, 2020, since he had received amount in excess of $1,000 during four-week periods between these two dates — Mr. Gagnon applied for leave to appeal this decision, which was granted by Appeal Division — Mr. St-Louis submitted initial claim for employment insurance benefits effective March 23, 2020 — This claim was converted into an EI-ERB claim, took effect on March 22, 2020 — Mr. St-Louis received advance payment of $2,000 (equivalent to four weeks of benefits), paid to him on April 6, 2020 — Contacted by Commission on July 23, 2020, Mr. St-Louis requested that his declarations for period of March 22 to April 4, 2020 be deleted and not processed by Commission, to avoid overpayment — Initially, Commission informed Mr. St-Louis he was not entitled to $2,000 payment and had to repay this sum, which constituted a repayable loan, as there was no four-week period in which he had earned $1,000 or less — Although he received no remuneration for weeks of March 29, April 5 and April 12, 2020, he had earned $1,200 during week of March 22 — General Division dismissed Mr. St-Louis’ appeal, adopted Commission’s interpretation — Appeal Division concluded in both cases, for almost identical reasons, that General Division had erred in law by erroneously interpreting provisions of Act dealing with eligibility for EI-ERB — As a result, it rendered decision it considered should have been rendered by General Division, concluding that both claimants were eligible for EI-ERB — Whether Appeal Division’s interpretation of Act, ss. 153.9(1) and (4) reasonable — Applicant argued that Appeal Division’s interpretation of these two provisions was unreasonable and inconsistent with text, context, and legislative intent — He first argued that text of s. 153.9(4) was open to several interpretations — Contrary to applicant’s arguments, there was no ambiguity in text of ss. 153.9(1),(4) — First subsection deals with eligibility conditions, including requirements for loss of income — In all cases covered by this provision, a claimant will be eligible if claimant meets a certain number of conditions — S. 153.9(4) provides an exception to loss-of-income requirement — If claimant receives employment income of $1,000 or less during a four-week period, claimant is “deemed” to have met loss-of-income requirement of s. 153.9(1) — This is only a presumption — S. 153.9(1) setting out requirements for loss of income; s. 153.9(4) exists only to provide an exception — If claimant not meeting this exception, s. 153.9(1) continues to apply; claimant will continue to qualify if meeting loss-of-income requirement set out in that subsection — Interpretation adopted by Appeal Division not incompatible with objectives of Act — As with Employment Insurance program, EI-ERB’s goal is to help claimants who find themselves involuntarily unemployed, without distinction based on claimant’s income or wealth — Consequently, interpretation adopted by Appeal Division in both cases in question not unreasonable — It was consistent with text of s. 159, context in which s. 159(4) was enacted, and with broader objective pursued by legislator not only in EI-ERB context, but also that of regular Employment Insurance benefit plan — Applications dismissed.

Canada (Attorney General) v. Gagnon (A-278-22, A-279-22, 2023 FCA 174, de Montigny J.A., reasons for judgment dated August 4, 2023, 25 pp.)

 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.