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A-483-76
Attorney General of Canada (Applicant)
v.
Jean-Charles Blanchet (Respondent)
Court of Appeal, Pratte and Le Dain JJ. and Hyde D.J.—Quebec, February 8, 1977.
Unemployment insurance — Unemployment due to injury
Group sickness or wage-loss indemnity policy Termination on leaving service of employer — Two employers listed as
"employer" under the policy Whether the policy portable — Unemployment Insurance Act, 1971, S.C. 1970-71-72, c. 48, s. 25(a) — Unemployment Insurance Regulations, ss. 172(2), 172(3.1), 172(3.2), 172(3.3).
The benefits of a group policy are taken into account in determining an applicant's unemployment insurance benefits, unless the plan can meet the conditions necessary not to be considered a group plan. One condition is that the plan be completely portable. The respondent had received benefits from a group sickness or wage-loss indemnity plan issued on behalf of the employees of two employers the respondent's employer and another. The policy contained a clause that it would terminate automatically on the employee's leaving his employ er's service. An Umpire decided that this plan was completely portable, despite this termination clause, because the employee could work for the other employer without losing his benefits under the plan. The applicant appealed from the Umpire's decision.
Held, the appeal is allowed. An indemnity plan is portable within the meaning of the provision only when the rights and obligations of the employee under the plan remain the same if the employee moves to the service of any other employer. This insurance does not fulfil this requirement, and consequently the Umpire was in error when he held that it was completely portable.
APPEAL. COUNSEL:
Jean-Marc Aubry for applicant. Jean-Charles Blanchet for himself.
SOLICITORS:
Deputy Attorney General of Canada for applicant.
Jean-Charles Blanchet, Dégelis, Quebec, for himself.
The following is the English version of the reasons for judgment delivered orally by
PRATTE J.: Applicant asks the Court to set aside the decision of an Umpire acting under Part V of the Unemployment Insurance Act, 1971, who allowed respondent's appeal and held that in deter mining the amount of unemployment insurance benefits to which respondent was entitled, it was necessary to take into account the payments he had received under a sickness or disability wage- loss indemnity contract while he was unemployed.
According to section 25(a) of the Unemploy ment Insurance Act, 1971, and section 172(2) of the Regulations, it is necessary to take into account the "... amount of payments a claimant has received or ... is entitled to receive under a group sickness or disability wage-loss indemnity plan .. ." in determining the amount of benefits payable to a person who is incapable of work by reason of injury or illness. Section 172(3.1) of the Regulations specifies the conditions which an indemnity plan must fulfil if it is not to be con sidered a group plan. One of these conditions is that the sickness or disability wage-loss indemnity plan in question should be completely "portable", which is defined in section 172(3.2) as follows:
172. (3.2) For the purposes of subsection (3.1) "portable", in respect of any plan referred to therein, means that benefits to which an employee covered thereby is entitled and the rate of premium he is required to pay while employed by an employer will remain equivalent if he becomes employed by any other employer.
It is established that respondent was unem ployed because he was "incapable of work by reason of ... injury", and that during this period he received weekly payments under a sickness or disability wage-loss indemnity policy issued by "Les Prévoyants of Canada". If we were to con clude, as the Umpire did, that the plan was "com- pletely portable" within the meaning of sections 172(3.2) and 172(3.3), it would follow that this indemnity policy constitutes a "sickness or disabili ty wage-loss indemnity plan that is not a group plan" within the meaning of section 172(3.1) of the Regulations. The only problem raised by this case is therefore that of determining whether the Umpire was justified in holding that the weekly payments received by respondent while he was unemployed were paid to him under an indemnity plan which was not "completely portable".
The sickness or disability wage-loss indemnity policy involved was a group sickness or disability wage-loss indemnity policy (in the accepted sense of the term) issued on behalf of the employees of two different employers: TEMIS ÉLECTRIQUE LTÉE, for which respondent worked, and YVON PELLETIER MEUBLES. Both these employers were designated in the policy as "the Employer". The policy contained the following clause:
[TRANSLATION] The insurance of the employee and his dependants shall terminate automatically on the first of the following dates:
1. the date on which the employee leaves the service of the Employer ....
If the Umpire felt that the indemnity plan was completely portable despite this clause, it was because the expression "the Employer" in the policy in fact designated two employers. An insured employee could therefore move from the service of one of these employers to that of the other without the indemnity plan being termina ted. This was sufficient, according to the Umpire, to make the indemnity plan "completely portable".
In my opinion, the Umpire's decision is incom patible with section 172(3.2) of the Regulations if it is interpreted with reference to the English text thereof, which reads as follows:
172. (3.2) For the purposes of subsection (3.1) "portable", in respect of any plan referred to therein, means that benefits to which an employee covered thereby is entitled and the rate of premium he is required to pay while employed by an employer will remain equivalent if he becomes employed by any other employer.
The words un autre employeur at the end of the French text of section 172(3.2) are translated in the English text as "any other employer". This being the case, it is evident that an indemnity plan is portable within the meaning of this provision only when the rights and obligations of the employee under the plan remain the same if the employee moves to the service of any other employer. In the case at bar the insurance plan does not fulfil this requirement, and consequently the Umpire was in error when he held that it was completely portable.
For these reasons, I would quash the Umpire's decision and return the case to him so that he may decide it on the basis that the indemnity plan
under which respondent received payments was not a portable plan within the meaning of section 172(3.2) of the Regulations.
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LE DAIN J. concurred.
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HYDE D.J. concurred.
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