Waters v. R. - TCC: Court accepts worker’s evidence of insurable hours of employment

Waters v. R. - TCC:  Court accepts worker’s evidence of insurable hours of employment


Waters v. M.N.R. (February 4, 2016 – 2016 TCC 32, Campbell J.).

Précis:   Mr. Waters was a substitute teacher.  His claim for EI benefits was denied because his employer reported that he had 674 hours rather than the 700 hour minimum required.  He gave evidence that his actual hours were 763.  The Court accepted his evidence and allowed his appeal.

Decision:   The Court examined the legislative framework for determining insurable hours:

[8]             To qualify for benefits, both an individual’s insurable earnings and insurable hours are key to entitlement. The issue in this appeal concerns the Appellant’s insurable hours. To qualify, he had to have a minimum of 700 insurable hours in respect to the Period. Section 55 of the Act authorizes the Commission to enact regulations for determining the required number of insurable hours. Regulation 10 sets out guidelines that can be used to determine actual hours worked and for which remuneration was paid, where a worker is not paid an hourly rate but according to some other method, such as blocks of time as referred to in this appeal. It applies to salaried employees who are required to work additional hours beyond their normal work day to fulfil their responsibilities, even where their nominal work week is described in hours. It also applies to piece workers who are paid a set amount per work unit provided the unit is anything other than actual hours worked (MacKenzie v MNR, 2011 TCC 199, [2011] TCJ No. 150, at paragraph 19). While Regulation 9 simply addresses the worker who is paid an hourly wage for each hour worked, Regulation 10, by its very subject matter, is far more complicated. It addresses those unique situations that fall outside Regulation 9. In addition, the wording, particularly of subsection 10(1), is not straightforward.

[9]             Regulation 10 sets out several methods for determining a worker’s insurable hours. The objective is to ascertain the total number of hours “actually worked” and for which compensation was paid by the employer in order to determine whether a worker has attained a sufficient number of insurable hours to be eligible for employment insurance benefits during a qualifying period.

[10]        The Supreme Court of Canada, in Abrahams v Canada (Attorney General), [1983] 1 SCR 2, affirmed that social legislation should receive a broad and liberal interpretation. Wilson J. stated the following, at paragraph 10:

… Since the overall purpose of the Act is to make benefits available to the unemployed, I would favour a liberal interpretation of the re-entitlement provisions. I think any doubt arising from the difficulties of the language should be resolved in favour of the claimant. …

[21]        Applying the legislative provisions and jurisprudence to the facts in the present appeal, the Respondent submitted that subsection 10(1) requires the employer to submit the evidence to the Minister and that the evidence, of the Appellant’s actual hours worked and for which he was remunerated, is contained in the form of an ROE (which is the Exhibit A-2 without the Appellant’s handwritten notations). According to the Respondent, despite some contrary caselaw, subsection 10(1) deems those hours in the ROE that was submitted to the Minister to be the correct number of insurable hours. However, I am of the view that the Respondent’s position does not reflect the correct interpretation of subsection 10(1). First, if the Respondent is to place reliance on subsection 10(1) at this stage, the evidence that must be provided is to the Court, not the Minister, and it must be of “actual hours” as referenced in the subsection. As such, assumptions of fact alone will not suffice. If the Court concludes that sufficient and credible information is contained in the evidence, such as an ROE document, that may end the matter. However, in the facts before me, the ROE, which is the only evidence produced by the Respondent, is the result of a formulaic approach based on an administrative assumption that a full work day was equal to 7 hours. This is not the type of evidence contemplated by subsection 10(1).

The Court found Mr. Waters’ evidence credible, with a minor adjustment:

[22]        The Appellant provided not only credible testimony respecting the actual excess hours that he was required to work but he also provided me with his log of handwritten notes that he maintained during the Period, detailing those actual excess hours. The examples ranged from several hours spent prior to the 7 hour day when he was assigned to substitute food studies class to time spent after the 7 hour day ended when he substituted for a physical education coach and was required to oversee extracurricular sporting activities. The Appellant has been able to establish what the Payor did not, and that is, the actual time spent on the performance of his duties required of a substitute teacher to complete his work tasks pursuant to his contract of employment. Consequently, because the ROE reflects a formulaic approach, it does not reflect the actual hours that the Appellant worked. If the Payor’s work website, that produced the ROE, had permitted the Appellant to input these additional hours to the website, which the evidence suggests it did not, the Payor could have easily produced an ROE that reflected the Appellant’s actual work hours. In the circumstances, the Respondent submitted no other evidence to refute the Appellant’s testimony and his documentation.

[23]        The Appellant’s record supports his oral testimony respecting the “actual hours” he worked, subject to a slight adjustment. The Respondent submitted that the Appellant had accumulated 674 insurable hours as opposed to the Appellant’s total of 763. It appears from the evidence that the total of 763 includes, as the Respondent submitted, 32 additional hours for the 20 minutes allotted by the Payor each day as pre-class preparation time and included in the 7 hour day. Therefore, those 32 hours will be deleted from the Appellant’s total of 763 hours, leaving a total of 731 insurable hours.

As a result the appeal was allowed:

[25]        Although subsections 10(2) to 10(6) were neither pleaded nor relied on, and do not come into play, in any event, given my conclusions respecting subsection 10(1), I agree with the comments and summary of the mechanics of those subsections provided by Boyle J. in his decision in Chahal v MNR, 2008 TCC 347, [2008] TCJ No. 268, and in particular, paragraphs 26 to 31. Essentially, where subsection 10(1) does not apply, which was not the case in this appeal, then either subsection 10(2), modified by subsection 10(3), or subsection 10(4), modified by subsection 10(5), should be applied, as noted by Boyle J. in MacKenzie. In situations where a worker’s actual insurable hours are not known or ascertainable and the employer and worker cannot agree on the number of the hours, there appears to be ambiguity as to whether subsection 10(3) or 10(4) takes precedence. Recognizing that the application of subsection 10(4) would yield a greater number of insurable hours than either an employer or an employee might suggest, Boyle J. was guided by the Supreme Court of Canada statements in Abraham and also in Rizzo. This ambiguity was also recognized in the decision in Virani v MNR, 2012 TCC 97, [2012] TCJ No. 74, which concluded there would be no good reason to prefer a result that would be less favourable to an appellant.

[26]        In summary, Mr. Water’s appeal is allowed, without costs, to reflect that his insurable hours are increased to 731 in accordance with the application of subsection 10(1) of the Regulations.