Judgments

[1997] 2 F.C. 928

A-295-96

Attorney General of Canada (Applicant)

v.

Francine Boissinot and Syndicat de la fonction publique du Québec (Respondents)

Indexed as: Canada (Attorney General) v. Boissinot (C.A.)

Court of Appeal, Marceau, Desjardins JJ.A. and Chevalier D.J.—Montréal, January 29; Ottawa, February 27, 1997.

Unemployment insurance — Respondent claiming benefit based on three records of employment — Claim denied as minimum of weeks required to establish benefit period under U.I. Act, s. 6 not met—Validity of Unemployment Insurance Regulations, s. 36.2 at issue — Whether discriminatory — S. 36.2 setting out method for calculating weeks of insurable employment for persons, like respondent, not paid on calendar week basis — Differences in treatment resulting from application of s. 36.2 authorized by Parliament as contemplated by Act, s. 44(w) — Can work to advantage, disadvantage of employee — Calculation of weeks of insurable employment same for everyone — S. 36.2 valid, not discriminatory.

This was an application for judicial review of an Umpire’s decision declaring section 36.2 of the Unemployment Insurance Regulations invalid. The respondent, Ms. Boissinot, made a claim for benefit based on three records of employment from three different employers. The first and third each covered a period of two weeks of employment, for a total of four weeks. The second record of employment, which was the only one in issue, showed that she worked for a period of ten weeks, from March 10 to May 18, 1994, for the Department of Revenue of Quebec. The Canada Employment and Immigration Commission informed the respondent that she was not eligible for benefits because it was clear from the records of employment she had submitted that she had only fourteen weeks of insurable employment, whereas section 6 of the Unemployment Insurance Act requires a minimum of fifteen weeks to establish a benefit period. The respondent argued that she had to be attributed eleven rather than ten weeks of insurable employment for the time she had worked for the Department of Revenue of Quebec, since her employment had begun on a Thursday and ended on a Wednesday, thus giving her an additional week of employment for her seventy days of work. She added that the Commission’s refusal to attribute that eleventh week to her in accordance with the generally applicable rules was based on a regulatory provision adopted shortly before that time, that was invalid, unlawful and therefore unenforceable against her. Her arguments were rejected by a majority of the members of the Board of Referees, but accepted in full by the Umpire who declared the impugned provision, section 36.2 of the Unemployment Insurance Regulations, ultra vires the Commission and therefore inapplicable to the case at bar. The issue to be resolved was the validity of that provision.

Held, the application should be allowed.

Per Marceau J.A.: The question of calculating weeks of insurable employment to qualify for benefits was an important one in a labour market increasingly characterized by part-time and short-term jobs. The word “week” used in any provision of the Act must be understood to mean seven consecutive days commencing on and including Sunday. Paragraphs 4(3)(h) and 44(w) of the Act both deal with the calculation of weeks of insurable employment. The “week” referred to in those provisions is a calendar week and a duty to make regulations to extend or restrict insurable employment is imposed on the Commission even though it is in the form of a power. It was under paragraph 44(w) of the Act that section 36.2 of the Regulations was adopted. Section 36.2 provides that where an insured worker’s earnings are paid or payable for a period otherwise than in respect of one or more calendar weeks, the weeks of insurable employment will be calculated on the basis of pay periods rather than calendar weeks. Since the respondent was not paid on a calendar week basis by the Department of Revenue of Quebec, she must be attributed ten weeks of insurable employment for the ten periods of seven consecutive days she worked, calculated starting on the first day of her employer’s pay period. However, if section 36.2 of the Regulations is disregarded and the rule applicable when employment is organized on a calendar week basis is used, the respondent must be attributed eleven weeks because on the day after her first day of work, namely Friday, she would already have had her first week of insurable employment. These differences in treatment cannot be considered discrimination in the pejorative sense, since they can work both to the advantage and to the disadvantage of the employee concerned. They are not at all unfounded, since their purpose is to bring the number of weeks of insurable employment into line with the number of premiums paid, which is perfectly justified in an insurance system based on premiums that are tied to wages and paid by employers and employees. Finally, these differences are clearly authorized by Parliament, since they are presupposed by paragraph 44(w) of the Act which was intended for cases in which earnings are not payable on a calendar week basis, as different and better-suited rules were wanted for such cases. Parliament can validly authorize such differences in treatment in implementing a regime such as the unemployment insurance system.

Per Desjardins J.A.: The respondents argued that paragraph 36.2(b) of the Regulations draws a distinction between persons in similar situations, that is, persons who worked exactly the same days and paid the same premiums. According to them, while the Commission found that Ms. Boissinot had only ten weeks of insurable employment, it would have found that she had eleven if her employer’s pay week had been the calendar week. The respondents erred in saying that this difference results solely from the employer’s pay system. If Ms. Boissinot is compared with a person who is paid on a calendar week basis, who began working at the beginning of a week commencing on and including Sunday and who worked the same number of days as Ms. Boissinot, that person would have ten weeks of insurable employment, just as she did. When the comparison is drawn between two persons in situations that are actually identical, the calculation of weeks of insurable employment is done on the same basis and has the same result. Whatever the pay period, be it a calendar week, a period of seven days beginning on a day other than Sunday or a period of more than seven days beginning on a day other than Sunday, the calculation of weeks of insurable employment is the same for everyone. There was no discrimination and section 36.2 of the Regulations is valid.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Unemployment Insurance Act, R.S.C., 1985, c. U-1, ss. 2(1) “week”, 3(1)(a), 4(3)(h), 6 (as am. by S.C. 1990, c. 40, s. 5), 44(w).

Unemployment Insurance (Collection of Premiums) Regulations, C.R.C., c. 1575, s. 7(2).

Unemployment Insurance Regulations, C.R.C., c. 1576, ss. 13(1) (as am. by SOR/80-805, s. 1), (2) (as am. idem; SOR/94-440, s. 1), 36.2 (as enacted idem, s. 3).

Unemployment Insurance Regulations, SOR/55-392, s. 54 (as am. by SOR/71-657, s. 1).

CASES JUDICIALLY CONSIDERED

REFERRED TO:

Canada (Attorney General) v. Cloutier et al. (1993), 156 N.R. 167 (F.C.A.); Montréal (City of) v. Arcade Amusements Inc. et al., [1985] 1 S.C.R. 368; (1985), 14 D.L.R. (4th) 161; 29 M.P.L.R. 220; 58 N.R. 339.

APPLICATION for judicial review of an Umpire’s decision declaring section 36.2 of the Unemployment Insurance Regulations invalid. Application allowed.

COUNSEL:

Carole Bureau for applicant.

S. Lepage for respondents.

SOLICITORS:

Deputy Attorney General of Canada for applicant.

Grondin, Poudrier, Bernier, Québec, for respondents.

The following is the English version of the reasons for judgment rendered by

Marceau J.A.: This application for judicial review by the Attorney General of Canada from the decision of an Umpire acting under the Unemployment Insurance Act [R.S.C., 1985, c. U-1] (the Act)[1] has implications that go far beyond the resolution of the case at bar. The reason for this is that the determination of whether the respondent Francine Boissinot was entitled to benefits, as she argued in challenging the correctness of the decision by the Canada Employment and Immigration Commission (the Commission) to deny her claim, resulted in a declaration that a provision of the Unemployment Insurance Regulations [C.R.C., c. 1576] of considerable practical significance is invalid.

The specific facts are, of course, of little importance given the nature of the dispute and the level it has reached, but a statement of the facts may nevertheless serve to illustrate the problem that arises in a concrete and very meaningful way and, at the same time, help make the various aspects of that problem clear.

The respondent Francine Boissinot, a data processing clerk, made a claim for benefit on August 29, 1994, the day after her employment with the Commission de l’Exposition provinciale ended. She based her claim on three records of employment from three different employers. In addition to the record from her last employer for the two-week period from August 17 to 28, 1994, she submitted a record from the Department of Revenue of Quebec showing that she had worked for it for ten weeks, from March 10 to May 18, 1994, and a record from Élite Services Informatiques, for which she had worked for two weeks, from September 20 to October 1, 1993.

On September 22, 1994, the Commission informed Ms. Boissinot that she was not eligible for benefits because it was clear from the records of employment she had submitted that she had only fourteen weeks of insurable employment, whereas section 6 [as am. by S.C. 1990, c. 40, s. 5] of the Act requires a minimum of fifteen weeks to establish a benefit period. Ms. Boissinot challenged that decision, claiming that she did have the necessary fifteen weeks. She argued—and her union intervened to support her arguments—that she had to be attributed eleven rather than ten weeks of insurable employment for the time she had worked for the Department of Revenue of Quebec, since her employment had begun on a Thursday and ended on a Wednesday, thus giving her an additional week of employment for her seventy days of work. She submitted that the Commission’s refusal to attribute that eleventh week to her in accordance with the generally applicable rules was based on a regulatory provision adopted shortly before that time that was invalid, unlawful and therefore unenforceable against her.

The arguments of the respondent Ms. Boissinot and her union were rejected by a majority of the members of the Board of Referees. According to those members, the role of a board of referees is not to question the validity of a regulatory provision, but strictly to verify that the provision is applicable to the case under consideration and has been correctly applied. However, Ms. Boissinot’s arguments were accepted in full by the Umpire, who, after criticizing the Board of Referees for ignoring them, given that they did not raise a constitutional question that was beyond its jurisdiction but only a question relating to the scope of regulatory powers, himself declared the impugned provision ultra vires the Commission and therefore inapplicable to the case at bar.

It is that decision whose correctness must be determined. As can be seen, it relates to the calculation of the weeks of insurable employment that an insured person needs to qualify to receive benefits. In the current state of the labour market, where part-time and short-term jobs are multiplying, the decision may, as noted above, have a considerable impact.

I am leaving aside a secondary issue discussed by counsel, namely the circumstances in which this Court can intervene in respect of an umpire’s decision. There is no need to consider it at any length. There can be no doubt that this Court is not bound by any curial deference and must intervene if it concludes that an umpire has erred in law in declaring any statutory provision invalid. I will therefore turn immediately to the real issue to be resolved: the validity of section 36.2 [as enacted by SOR/94-440, s. 3] of the Unemployment Insurance Regulations. Before I look at that provision, however, it should be placed in context.

Part I of the Act,[2] which is entitled “Unemployment Insurance Benefits”, essentially contains all the provisions dealing with the basic conditions that must be met to be eligible to receive benefits. As always at the beginning of a rather complex statute, Parliament has, to simplify matters and make the Act easier to understand, defined certain key terms it has used to express its intentions. The definitions are found in subsection 2(1). They include a definition of the term “week” as it is to be understood in the Act; subsection 2(1) states that “week” means a period of seven consecutive days commencing on and including Sunday. Thus, every time the word “week” is used in a provision—and it is used frequently and for a number of purposes—it must be understood to mean seven consecutive days commencing on and including Sunday. The very first time the term “week” is used (which, as it happens, is the starting point for our analysis) is in paragraph 4(3)(h), in which Parliament—after defining what, in principle, constitutes insurable employment (paragraph 3(1)(a)) and providing that the Commission may make regulations to extend or restrict insurable employment—provides as follows:

4. …

(3) The Commission may, with the approval of the Governor in Council, make regulations for excepting from insurable employment

…

(h) any employment with an employer in which persons are employed for less than twenty hours in a week or in which the earnings of persons are less than thirty per cent of the maximum weekly insurable earnings.

The Commission, of course, used the power conferred on it by paragraph 4(3)(h) (I say “of course” because it is clearly a duty even though it is in the form of a power) and, with the approval of the Governor in Council, adopted subsection 13(1) [as am. by SOR/80-805, s.1] of the Regulations, which in fact sets out minimums below those authorized, namely fifteen hours a week and twenty per cent of the maximum weekly insurable earnings.[3] Since the week in question is a calendar week, the result is that no matter what day of the week a person starts working, the person’s work that week will count as a week of insurable employment so long as he or she reaches the necessary minimums.

However, paragraph 44(w) of the Act also deals with the calculation of weeks of insurable employment. It authorizes the Commission, again with the approval of the Governor in Council, to make regulations:

44. …

(w) where earnings are paid or payable in the qualifying period for a period otherwise than in respect of weeks, for calculating and establishing for the purposes of this Part

(i) the weeks or number of weeks that are to be taken as weeks of insurable employment, and

(ii) the amount to be taken as the insurable earnings or average weekly insurable earnings for any weeks or number of weeks

in that period;

The “week” referred to in paragraph 44(w) is again, of course, a calendar week, and a duty is again imposed in the form of a power. Accordingly, the provision must mean that the ordinary rules already established do not apply to employment in which earnings are paid or payable for a period otherwise than in respect of one or more calendar weeks. The Commission is required to establish the rules applicable in such cases.

It was under paragraph 44(w) that section 36.2 of the Regulations, the validity of which is being challenged in this case, was adopted. It is appropriate to reproduce it at this point:

36.2 For the purposes of Part I of the Act, where a claimant’s earnings were paid or payable in the qualifying period for a period otherwise than in respect of weeks (hereinafter called the “pay period”), the number of weeks that are to be taken as weeks of insurable employment in any one employment period shall

(a) where the pay period consists of seven consecutive days and begins on a day other than Sunday and

(i) the claimant has cash earnings for each pay period and the cash earnings for the pay period are equal to or exceed 20 per cent of the maximum weekly insurable earnings, or

(ii) the claimant is employed in each pay period for a total number of hours that is equal to or exceeds 15 hours,

be equal to the number of pay periods; and

(b) where the pay period consists of more than one period of seven consecutive days and begins on a day other than Sunday and

(i) the claimant has cash earnings for each period of seven consecutive days in the pay period, and the cash earnings for the pay period are equal to or exceed the product obtained by multiplying the amount of cash earnings referred to in paragraph (a) by the number of periods of seven consecutive days in the pay period, or

(ii) the claimant is employed in each period of seven consecutive days in the pay period, and the total number of hours of employment in the pay period is equal to or exceeds the product obtained by multiplying 15 by the number of periods of seven consecutive days in the pay period,

be equal to the number of periods of seven consecutive days in the pay period.

As can be seen, where an insured worker’s earnings are paid or payable for a period otherwise than in respect of one or more calendar weeks, the weeks of insurable employment will be calculated on the basis of pay periods rather than calendar weeks, although care was again taken to provide, in the same manner, that a person will be attributed a week of insurable employment for only part of a working week provided that the two minimums of fifteen hours and twenty per cent are met.

It is, I believe, easy to see the difference that results from applying section 36.2 and applying the rules based on the calendar week. However, I will verify that difference using the case at bar. The respondent Ms. Boissinot began working for the Department of Revenue of Quebec on March 10, 1994, a Thursday, and her last day of work was May 18, 1994, a Wednesday. The Department’s pay period was fourteen days, from Thursday to Wednesday. Ms. Boissinot thus began working in the middle of one pay period and stopped working in the middle of another. Under section 36.2 of the Regulations, she must be attributed ten weeks of insurable employment for the ten periods of seven consecutive days she worked, calculated starting on the first day of her employer’s pay period. However, if section 36.2 of the Regulations is disregarded and the rule applicable when employment is organized on a calendar week basis is used, Ms. Boissinot must be attributed eleven weeks, for the simple reason that on the day after her first day of work, namely Friday, she would already have had her first week of insurable employment (I am assuming that the required minimums can be confirmed, although this is not shown by the record).

The grounds for indignation are readily apparent. How can there be two different results based solely on the employer’s pay period? How can it be that two employees who worked the same number of days, starting and ending on the same date, and contributed the same amount to the program (that amount being, in principle, a percentage of earnings) are treated differently because one is paid on a calendar week basis and the other is not? How can it be that, through mere regulations, the Commission seeks to distinguish employees who are not paid on a calendar week basis and treat them differently from those to whom the basic rule applies, again solely because their employer’s accounting system has another basis? In short, the provision is discriminatory, unauthorized and unacceptable.

With respect, I believe that although the criticism is based on a spontaneous and understandable reaction, it does not stand up to scrutiny.

First of all, while it is true that section 36.2 of the Regulations may have the effect of denying one employee the treatment given to another solely because his or her employer pays its employees on a different basis, I do not think that this can be considered discrimination in the pejorative sense. It would not, I think, be appropriate to say that an employee who arrives Monday and, in the context of employment organized on a calendar week basis, works a full week to earn one week of insurable employment is being discriminated against in comparison with someone who achieves the same result by working only part of a week; although the former is denied a benefit granted to the latter, he or she has not met the conditions for claiming that benefit. The differences in treatment resulting from the application of section 36.2 appear to me to be of the same nature, especially since they can work both to the advantage and to the disadvantage of the employee concerned. For example, a person who works for an employer that pays its employees every Wednesday and who has worked only Friday and Monday could combine the two days to reach the minimums needed for one week of insurable employment, which an employee paid on a calendar week basis obviously could not do.

Furthermore, I do not consider these differences in treatment at all unfounded, since their purpose is to bring the number of weeks of insurable employment into line with the number of premiums paid, which is perfectly justified in an insurance system based on premiums that are tied to wages and paid by employers and employees. To use the concrete example of Ms. Boissinot in this case, at the end of the calendar week in which she began working, she had not and could not have paid any premium that could have put her in the system, as it were, whereas if she had been paid by the calendar week, a premium would immediately have been payable.

Finally and above all, these differences in treatment resulting from the application of section 36.2 of the Regulations are clearly authorized by Parliament, since they are presupposed by paragraph 44(w) of the Act. To repeat what I said above, paragraph 44(w) unequivocally provides that rules other than those already established for employment organized on a calendar week basis will be made and will apply where employment is organized and paid on a different basis. It was argued that the provision could be strictly interpreted as covering only employees who have not worked from Monday to Friday, and it is true that the use of the word “weeks” in the subparagraphs is ambiguous at first. However, such an interpretation is not possible, first of all because there would be no reference to earnings payable if that were what the provision meant, and especially because employees who do not work a full week are already covered by subsection 4(3) of the Act. There is no question that paragraph 44(w) was intended for cases in which earnings are not payable on a calendar week basis, as different and better-suited rules were wanted for such cases. Moreover, I think no one will dispute the fact that Parliament can validly authorize such differences in treatment in implementing a system like the unemployment insurance system.

I will make one final point before concluding. I noted at the outset that section 36.2 was adopted only recently. This may seem difficult to understand given that paragraph 44(w), as I said, imposes a veritable duty in the guise of a mere power and that the rules in section 36.2 are special ones intended to play an important role in the day-to-day administration of the system. However, section 36.2 only appears to be new law. A similar provision has been in force since the Act was first passed; it was in section 54 of the Regulations [SOR/55-392 (as am. by SOR/71-657, s. 1)] prior to the 1978 consolidation and then in subsection 13(2) [as am. SOR/80-805, s. 1; 94-440, s.1] of the Regulations, but a decision by this Court on February 24, 1993 questioned its applicability to the calculation of weeks of insurable employment on the ground that, as originally adopted, it operated in conjunction with subsection 7(2) of the Unemployment Insurance (Collection of Premiums) Regulations [C.R.C., c. 1575], which were assumed to have been made on the recommendation of the Minister of National Revenue, and was applicable only under Part III of the Act, which deals with the collection of premiums (Canada (Attorney General) v. Cloutier et al. (1993), 156 N.R. 167 (F.C.A.)). The Commission, rather disconcerted, reacted by quickly adopting a new provision to the same effect and making it unambiguously applicable to Parts I and II of the Act, formally confining the scope of the existing provision to Part III.

All that remains is to conclude. Clearly, I am of the view that the Umpire was wrong to find that paragraph 36.2(b) of the Unemployment Insurance Regulations was ultra vires and invalid and on that basis to refuse to give it effect. I therefore suggest that the Court allow the application for judicial review and set aside the Umpire’s decision, which will reinstate the majority decision of the Board of Referees approving the Commission’s determination.

Chevalier D.J.: I concur.

***

The following is the English version of the reasons for judgment rendered by

Desjardins J.A.: The respondents have challenged the validity of section 36.2 of the Unemployment Insurance Regulations on the ground that it is discriminatory, as that concept is understood in administrative law.[4] They argued that Part I of the Unemployment Insurance Act[5] (the Act) makes no distinction between the concept of a week of insurable employment and that of the time at which a pay period begins. Thus, they argued, under paragraphs 3(1)(a) and 4(3)(h)[6] of the Act, any employment in which a person is employed for twenty hours a week or has earnings equal to thirty per cent of the maximum weekly insurable earnings is insurable employment. The Commission can make regulations extending the scope of that definition by limiting what is considered excepted employment. That is what it has done by adopting subsection 13(1) of the Regulations, which broadens the concept of insurable employment by providing that only the employment of persons whose cash earnings are less than twenty per cent of the maximum weekly insurable earnings and who are employed for less than fifteen hours a week is excepted from insurable employment.[7] However, the Commission cannot change that statutory definition, which is what it does when it makes regulations creating a category of employees not authorized by the Act.

The respondents acknowledged that paragraph 44(w)[8] of the Act authorizes the Commission to make regulations for calculating and establishing the number of weeks of insurable employment where earnings are paid or payable for a period otherwise than in respect of calendar weeks. They added, however, that the regulations made pursuant to that provision cannot be discriminatory. The regulations cannot have the effect of making distinctions between persons who are in similar situations, that is, persons who worked exactly the same days and paid the same premiums. That is why, in their submission, section 36.2 of the Regulations, which was adopted under paragraph 44(w) of the Act, is invalid.

Section 36.2 reads as follows:

36.2 For the purposes of Part I of the Act, where a claimant’s earnings were paid or payable in the qualifying period for a period otherwise than in respect of weeks (hereinafter called the “pay period”), the number of weeks that are to be taken as weeks of insurable employment in any one employment period shall

(a) where the pay period consists of seven consecutive days and begins on a day other than Sunday and

(i) the claimant has cash earnings for each pay period and the cash earnings for the pay period are equal to or exceed 20 per cent of the maximum weekly insurable earnings, or

(ii) the claimant is employed in each pay period for a total number of hours that is equal to or exceeds 15 hours,

be equal to the number of pay periods; and

(b) where the pay period consists of more than one period of seven consecutive days and begins on a day other than Sunday and

(i) the claimant has cash earnings for each period of seven consecutive days in the pay period, and the cash earnings for the pay period are equal to or exceed the product obtained by multiplying the amount of cash earnings referred to in paragraph (a) by the number of periods of seven consecutive days in the pay period, or

(ii) the claimant is employed in each period of seven consecutive days in the pay period, and the total number of hours of employment in the pay period is equal to or exceeds the product obtained by multiplying 15 by the number of periods of seven consecutive days in the pay period,

be equal to the number of periods of seven consecutive days in the pay period.

The facts, which are not in dispute, serve to illustrate the provisions in question.

Of the three records of employment submitted by the respondent Ms. Boissinot when she made her claim for benefit, only the second is in issue here. The first and third each cover a period of two weeks of employment, for a total of four weeks. The second record of employment, from the Department of Revenue of Quebec, shows that she worked for a period of ten weeks, from March 10 to May 18, 1994.

Ms. Boissinot needed fifteen weeks to qualify for unemployment insurance benefits.[9] She argued that she had actually worked eleven rather than ten weeks. She submitted that since she started working on Thursday, March 10, 1994 and stopped working on Wednesday, May 18, 1994, she had an additional week of employment because of the application of paragraph 4(3)(h) of the Act and the Regulations.

The Commission denied her claim for benefit. That decision was affirmed by a majority of the Board of Referees, which applied section 36.2 of the Regulations, the section that the Umpire declared invalid on the basis that it was discriminatory in the sense noted above.

It has been established that the employer paid its employees every fourteen days, from Thursday to Wednesday, and not on a calendar week basis.

The term “week” is defined in subsection 2(1) of the Act as a period of seven consecutive days commencing on and including Sunday.

As noted above, under paragraph 4(3)(h) of the Act and subsection 13(1) of the Regulations, where employment in a week involves fifteen hours of work and cash earnings that are at least twenty per cent of the maximum weekly insurable earnings, the week is considered to be a week of insurable employment. In reliance on those provisions, Ms. Boissinot has claimed an eleventh week of insurable employment and has argued that she is at a disadvantage because if she had been paid by the week, she would have had that additional week of insurable employment.

I do not think that Ms. Boissinot can avail herself in this way of a situation that is not hers.

Paragraph 44(w) of the Act applies where earnings are paid or payable otherwise than in respect of weeks (the term “week” meaning a period of seven consecutive days commencing on and including Sunday). It was under that provision that the Commission adopted section 36.2 of the Regulations. Section 36.2 sets out the method for calculating weeks of insurable employment for persons who are not paid by the calendar week.

Paragraph 36.2(a) of the Regulations provides that a claimant whose pay period consists of seven consecutive days and does not begin on Sunday is entitled to one week of insurable employment for every pay period in which he or she meets the minimum standard of twenty per cent of the maximum weekly insurable earnings and fifteen hours of work.

Paragraph 36.2(b) applies to claimants whose pay period consists of more than one period of seven consecutive days and begins on a day other than Sunday. Subparagraphs (i) and (ii) impose the same two minimum requirements for earnings and hours that are set out in subparagraphs 36.2(a)(i) and (ii). Those requirements are also found in subsection 13(1) of the Regulations.

The respondents argued that paragraph 36.2(b) draws a distinction between persons in similar situations, that is, persons who worked exactly the same days and paid the same premiums. According to the respondents, while the Commission found that Ms. Boissinot had only ten weeks of insurable employment, it would have found that she had eleven if her employer’s pay week had been the calendar week.

The mistake the respondents are making is to claim that this difference results solely from the employer’s pay system. There is another difference, which I consider fundamental. Ms. Boissinot began working on the first day of her employer’s pay week, namely Thursday. Accordingly, she must be compared with someone who began working on the first day of a calendar week. The scenario described by the respondents results from a comparison between a person who begins working on the first day of a pay week (the Thursday in a pay week going from Thursday to Wednesday) and a person who begins working on the fifth day of a calendar pay week (the Thursday in a week going from Sunday to Saturday).

If Ms. Boissinot is compared with a person who is paid on a calendar week basis, who began working at the beginning of a week commencing on and including Sunday and who worked the same number of days as Ms. Boissinot, that person would have ten weeks of insurable employment, just like Ms. Boissinot.

Thus, when the comparison is drawn between two persons in situations that are actually identical, it can be seen that the calculation of weeks of insurable employment is done on the same basis and has the same result.

Ultimately, whatever the pay period, be it a calendar week, a period of seven days beginning on a day other than Sunday or a period of more than seven days beginning on a day other than Sunday, the calculation of weeks of insurable employment is the same for everyone.

I conclude that there is no discrimination and that section 36.2 of the Regulations is valid. I would dispose of this case as suggested by my colleague Marceau J.A.

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