R. L. v. Canada Employment Insurance Commission

Institution:
Social Security Tribunal of Canada - General Division - Employment Insurance
Member:
Normand Morin
Hearing date:
February 19, 2014
Hearing type:
Teleconference
Between:
R. L. and Canada Employment Insurance Commission
Decision:
Appeal dismissed
Decision date:
April 16, 2014
Reference number:
GE-13-1317 and GE-13-2185
Citation:
R. L. v. Canada Employment Insurance Commission, 2014 SSTGDEI 29

Persons in attendance

[1] The Appellant, R. L., participated in the telephone hearing (teleconference) held on February 19, 2014.

Decision

[2] The Social Security Tribunal, hereafter called the Tribunal, concludes that there is no merit to the appeal from the decision of the Canada Employment Insurance Commission, hereafter called the Commission, to impose a disentitlement from receiving Employment Insurance benefits on the Appellant because he did not prove that he was unemployed, under section 9 and subsections 11(1) and 11(4) of the Employment Insurance Act (the Act).

Introduction

[3] On August 7, 2012, the Appellant filed an initial claim for benefits. The Appellant stated that he worked for Gardium Sécurité Inc. until August 3, 2012, and that he stopped working for this employer because of a shortage of work (Exhibits GD3 2 to GD3 13 of file No. GE 13 1317).

[4] On February 1, 2013, the Appellant filed an initial claim for benefits effective January 27, 2013. The Appellant said that he worked for Gardium Sécurité Inc. until December 7, 2012, and that he stopped working for this employer because of an authorized leave (Exhibits GD3 2 to GD3 11 of file No. GE 13 2185).

[5] On July 16, 2013, the Commission informed the Appellant that it could not pay Employment Insurance benefits to him for the periods from August 6, 2012, to August 22, 2012; September 17, 2012, to October 3, 2012; October 29, 2012, to November 14, 2012; and December 10, 2012, to December 21, 2012, because the periods in which he did not work were part of his work schedule and, for this reason, he was not considered unemployed within the meaning of the Act (Exhibits GD3 34 and GD3 35 of file No. GE 13 1317).

[6] On August 13, 2013, the Appellant presented a "Request for Reconsideration of an Employment Insurance Decision" (Exhibit GD3 37 of file No. GE 13 1317 and Exhibit GD3 85 of file No. GE 13 2185).

[7] On September 4, 2013, the Commission informed the Appellant that it was upholding the decision made in his case on July 16, 2013, namely, that the weeks from August 6, 2012, to August 22, 2012; September 17, 2012, to October 3, 2012; October 29, 2012, to November 14, 2012; and December 10, 2012, to December 21, 2012, that is, the weeks in which he did not work, were part of his work schedule and that he could not be considered unemployed within the meaning of the Act. The Commission also stated that the overpayment amount was established at $3,744.00 (Exhibits GD3 42 and GD3 43 of file No. GE 13 1317).

[8] On September 4, 2013, the Commission informed the Appellant that it was upholding the decision made in his case on July 16, 2013. The Commission concluded that from January 28, 2013, to February 6, 2013; March 4, 2013, to March 20, 2103; April 15, 2103, to May 1, 2013; and May 27, 2013, to June 12, 2013, that is, the periods in which he did not work, were part of his work schedule. The Commission also stated that the overpayment amount, established at $501.00, was confirmed (Exhibits GD3 88 and GD3 89 of file No. GE 13 2185).

[9] On October 4, 2013, the Appellant filed an appeal to the Employment Insurance Section of the Tribunal's General Division to dispute the reconsideration decision made in his case by the Commission on September 4, 2013, to uphold the disentitlement from receiving Employment Insurance benefits imposed on him because he did not demonstrate that he was unemployed (Exhibits GD3-42, GD3-43, and GD2-1 to GD2-9 of file No. GE-13-1317; and Exhibits GD3-88, GD3-89, and GD2-1 to GD2-7 of file No. GE-13-2185).

[10] On April 3, 2014, the Tribunal informed the parties that, under section 13 of the Social Security Tribunal Regulations, appeal Nos. GE-13-1317 and GE-13-2185 were being dealt with jointly because "a common question of law or fact arises" in them and "no injustice is likely to be caused to any party" (Exhibit GD5 1 of file Nos. GE 13 1317 and GE 13 2185).

Type of hearing

[11] The hearing was held by teleconference for the reasons given in the notice of hearing dated February 3, 2014 (Exhibits GD1 1 and GD1 2 of file Nos. GE 13 1317 and GE 13 2185).

Issue

[12] The Tribunal must determine whether there is merit to the appeal from the Commission's decision regarding the imposition of a disentitlement from receiving Employment Insurance benefits on the Appellant because he did not prove he was unemployed as set out in section 9 and subsections 11(1) and 11(4) of the Act.

Applicable law

[13] The provisions for imposing a disentitlement because a claimant did not prove they were unemployed are set out in sections 9 and 11 of the Act.

[14] The Federal Court of Appeal (the Court) confirmed the principle according to which claimants who have a schedule that includes periods of work and of leave are deemed to be employed during the leave periods that are part of this established schedule (Canada (AG) v. Merrigan, 2004 FCA 253; Canada (AG) v. Duguay, A 75 95). In this case, Desjardins J.A. of the Court stated as follows:

In order to make a determination under subsection 11(4) of the Act, there must be evidence to show that the claimant worked more than the usual number of hours that are normally worked in a week by persons employed in full time employment. This question is essentially one of fact and the Umpire should not intervene unless the Board made a reviewable error, namely that it "based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it" (paragraph 115(2)(c) of the Act).

[15] In Kieley (A 708 92), the Court confirmed the principle established in CUB 16809 according to which claimants who have a schedule that includes periods of work and of leave are deemed to be employed during the leave periods that are part of this established schedule.

Evidence

[16] The evidence contained in file Nos. GE 13 1317 and GE 13 2185 is as follows:

  1. (a) A Record of Employment dated January 19, 2012, indicates that the Appellant worked as a security officer for Group Sécurité Enquête du Québec Inc. from February 18, 2009, to December 25, 2011, inclusive, and that he stopped working for this employer because of a shortage of work (Code A – Shortage of work / End of contract or season) (Exhibit GD3 14 of file No. GE 13 1317).
  2. (b) A Record of Employment dated January 18, 2012, indicates that the Appellant worked as a security guard for the Assemblée nationale from April 11, 2011, to December 29, 2011, inclusive, and that he stopped working for this employer because of a shortage of work (Code A – Shortage of work / End of contract or season) (Exhibit GD3 15 of file No. GE 13 1317).
  3. (c) On December 3, 2013, the Commission indicated that, for the periods from January 27, 2013, to February 9, 2013; February 24, 2013, to March 23, 2013; April 7, 2013, to April 20, 2013; and May 19, 2013, to June 15, 2013, the Appellant's electronic reports and the certification provided by a Commission officer (copies of the questions and answers provided by the Appellant were reproduced on December 3, 2013), demonstrate that the Appellant said he had not worked during the periods from January 27, 2013, to February 9, 2013; March 3, 2013, to March 9, 2013; March 10, 2013, to March 16, 2013; May 26, 2013, to June 1, 2013; and June 2, 2013, to June 8, 2013 (Exhibits GD3 19 to GD3 68 of file No. GE 13 2185).
  4. (d) On February 11, 2013, the Appellant said he had started working at Mont Wright in the week of February 5, 2012. He said his work schedule consisted of 21 consecutive days of work, two days of travel and 19 consecutive days of unpaid leave (Exhibit GD3 16 of file No. GE 13 1317, and Exhibit GD3 69 of file No. GE 13 2185).
  5. (e) A Record of Employment dated April 3, 2013, indicates that the Appellant worked as a lieutenant for Groupe Sécurité Inc. from February 5, 2012, to March 2, 2013, inclusive, and that the reason he stopped working for this employer was "other" (Code K – Other) (Exhibit GD3 70 of file No. GE 13 2185).
  6. (f) On April 23, 2013, Gardium Sécurité Inc. (N. D., representative) asked the Commission for details about the employer's right to issue or not issue Records of Employment to its employees. The employer stated that it was not possible for employees to work normal 40 hour weeks (at Mont Wright) as is the case for those who work in Quebec City (Exhibit GD3 17 of file No. GE 13 1317, and Exhibit GD3 71 of file No. GE 13 2185).
  7. (g) On April 25, 2013, the Appellant explained the nature of his employment at Gardium Sécurité Inc. and the work schedule he had to follow. He said he was looking for new employment (Exhibits GD3 18 and GD3 19 of file No. GE 13 1317, and Exhibits GD3 72 and GD3 73 of file No. GE 13 2185).
  8. (h) On April 26, 2013, Gardium Sécurité Inc. (N., D., representative) explained the details of the special work schedules for employees working in the Far North (Exhibit GD3 20 of file No. GE 13 1317, and Exhibit GD3 74 of file No. GE 13 2185).
  9. (i) On May 9, 2013, M. D., representative of the Syndicat des Métallos, stated that the new collective agreement in effect since April 24, 2013, does not refer to work periods versus rest periods (Exhibit GD3 21 of file No. GE 13 1317, and Exhibit GD3 75 of file No. GE 13 2185).
  10. (j) On May 21, 2013, Gardium Sécurité Inc. (N. D., representative) presented details concerning the employees' work schedules, as well as the nature and duration of the contracts negotiated with these employees (Exhibit GD3 22 of file No. GE 13 1317, and Exhibit GD3-76 of file No. GE-13-2185).
  11. (k) A copy of the Appellant's work schedule for the period from July 2012 to December 2012 was entered into evidence (Exhibits GD3-23 to GD3-33 of file No. GE-13-1317).
  12. (l) A copy of the Appellant's work schedule for the period from January 2013 to June 2013 was entered into evidence (Exhibits GD3-77 to GD3-83 of file No. GE-13-2185).
  13. (m) In a document providing details on the notice of debt (DH009), dated July 20, 2013, the total amount of the Appellant's debt was established at $4,245.00 (Exhibit GD3-36 of file No. GE-13-1317, and Exhibit GD3-84 of file No. GE-13-2185).

[17] The evidence presented at the hearing is as follows:

  1. (a) The Appellant repeated the main elements in the appeal files.
  2. (b) He spoke about his work at the Assemblée nationale du Québec (Exhibit GD3-15 of file No. GE-13-1317), at Groupe Sécurité Enquête du Québec Inc. (Exhibit GD3-14 of file No. GE-13-1317) and at Gardium Sécurité Inc. (Exhibit GD3-70 of file No. GE-13-2185), following a layoff in March 2009, after 25 years of service, when he was working for another company.
  3. (c) He explained that, when he completed his benefit claim, he was instructed by an Employment Insurance officer at the Service Canada Centre of Sainte-Foy. He specified that the form he completed at that time fit his situation.
  4. (d) He said that he first worked as a security officer starting in February 2012 for Gardium Sécurité Inc. and that he later held the position of officer (contract supervisor, in charge of decisions related to the application of the camp's rules and regulations, such as those pertaining to good behaviour, respect for curfew, and consumption), a non unionized position, for this same employer (Exhibit GD3-70 of file No. GE-13-2185). He said that he worked 23 days and that he then had 19 days of leave.
  5. (e) He explained that he continued to complete his reports and said he began to receive benefits again in September 2013. He said that amounts were deducted from the benefits he received in order to pay back the overpayment amount he owed from a previous benefit period (Exhibit GD3-36 of file No. GE-13-1317, and Exhibit GD3-84 of file No. GE-13-2185).
  6. (f) He indicated that he stopped working as a security officer on January 24, 2014, and that he has been working in a management position for the same employer since January 27, 2014.

Submissions

[18] The appellant made the following observations and submissions:

  1. (a) He submitted at the hearing that he had no contract or written agreement with the employer. He specified that there was nothing in the collective agreement for unionized employees concerning the type of work he did and the conditions associated with it, such as periods of work and periods of rest (Exhibit GD3-21 of file No. GE-13-1317, and Exhibit GD3-75 of file No. GE-13-2185). He also specified that he had no job security.
  2. (b) He expressed his disagreement with the case law submitted by the Commission because, in the cases presented, the work schedule was clearly established, unlike in his situation. He submitted that the work teams' calendar was not real, stating that, for instance, in 2013 he made the 2014 calendar and the number of employees on it was not determined. He specified that this calendar was a document intended to provide some context.
  3. (c) He said that the document sent to the Commission (work teams' calendar) was not a work schedule, but a document used as a guideline, and that the names on it were not all valid (Exhibits GD3-23 to GD3-33 of file No. GE-13-1317, and Exhibits GD3-77 to GD3-83 of file No. GE-13-2185). He explained that the hours compiled by the Commission in its arguments corresponded to the weeks indicated, but he made clarifications with regard to the number of hours worked during his periods of work (Exhibit GD4-2 of file No. GE-13-2185). He specified that he worked 23 days and that he then had 19 days of leave. He indicated that he generally worked 12 hours a day, and that it took him 14 hours each way to travel from his home to work and back home. He estimated that he worked slightly more hours than normal, roughly 2,500 hours annually.
  4. (d) He submitted that, after seven consecutive days off, he had the right to file a benefit claim. He expressed his disagreement with the fact that the 19 consecutive days for which he was not paid were considered part of his work schedule because, during this period, he was available for work and never refused a work schedule that was offered to him (Exhibit GD2-2 of file Nos. GE-13-1317 and GE-13-2185). He said he wondered, if a 19 day period of no work was considered part of his work schedule, what would happen if it was, for example, a period of 42 days. He wondered after how many days without work the employment relationship between an employee and an employer is broken. He asked, [translation] "after how many days does it end?"
  5. (e) He said that an administrative employee, N. D., had [translation] "taken a disliking to him" and was reluctant to issue a Record of Employment to him, telling him that she was going to indicate "other" as the reason on the Record of Employment (Exhibit GD3-70 of file No. GE-13-2185). He expressed his disagreement with the statements made by Ms. D., according to which [translation] "… employees have nothing to say about the schedules … the schedules are made several months in advance …" (Exhibit GD3-22 of file No. GE-13-1317, and Exhibit GD3-76 of file No. GE-13-2185). He submitted that her statements were [translation] "nonsense", stating that he was convinced she did not know how it worked. He added that [translation] "if we wanted to work more hours, we could."
  6. (f) He said he felt wronged by the decision made in his case and believed that the way the Commission dealt with his case was discriminatory because other people who did the same work as he did received benefits (Exhibits GD3-38 and GD3-39 of file No. GE-13-1317, and Exhibits GD3-86 and GD3-87 of file No. GE-13-2185).
  7. (g) He submitted that another person in the same situation as he was in filed an appeal and was then paid back amounts for the time during which they had been penalized. He also previously stated that someone in his group had had their case reconsidered, that the decision made in their case had been overturned and that the Commission had paid back to them all the amounts to which they were entitled (Exhibits GD3-38 and GD3-39 of file No. GE-13-1317, and Exhibits GD3-86 and GD3-87 of file No. GE-13-2185). He also submitted that hundreds of workers were in the same situation as him and that Employment Insurance did not consider them to be on leave during this period (Exhibit GD2-2 of file Nos. GE-13-1317 and GE-13-2185).
  8. (h) He said he was available to work during the periods for which he was not paid. He repeated that when he was in Quebec City during his 19 days of leave he was available for and able to work. He also said that he had worked in Lac Mégantic while he was on leave in Quebec City (Exhibits GD3-38 and GD3-39 of file No. GE-13-1317, and Exhibits GD3-86 and GD3-87 of file No. GE-13-2185).
  9. (i) He said he was denied Employment Insurance benefits on the pretext that he was on leave, even though he was available for work on the days for which he was not paid by his employer (Exhibit GD3-37 of file No. GE-13-1317, and Exhibit GD3-85 of file No. GE-13-2185). He argued that he was always honest and never refused the hours that an employer asked him to work (Exhibit GD3-37 of file No. GE-13-1317, and Exhibit GD3-85 of file No. GE-13-2185).
  10. (j) He said he wanted to understand why public servants accepted his benefit claim without any problem and why he was now being asked to pay back an amount that he had been authorized to receive (Exhibit GD2 2 of file Nos. GE-13-1317 and GE-13-2185). He also said he had not given "false information" (Exhibit GD2-2 of file Nos. GE-13-1317 and GE-13-2185). He explained that he did not have the $4,245.00 that he was being asked to pay back (Exhibits GD3-38 and GD3-39 of file No. GE-13-1317, and Exhibits GD3-86 and GD3-87 of file No. GE-13-2185).

[19] The Commission made the following observations and submissions:

  1. (a) The Commission pointed out in its submissions that subsection 11(4) of the Act states that an insured person is deemed to have worked a full working week during each week that falls wholly or partly in a period of leave if (a) in each week the insured person regularly works a greater number of hours, days or shifts than are normally worked in a week by persons employed in full-time employment; and (b) the person is entitled to the period of leave under an employment agreement to compensate for the extra time worked. It specified that [translation] "the first condition has to do with the work itself, and the second to a right under an employment contract. When the two conditions are met, the claimant is deemed to have been employed during the entire week in which the period of leave falls" (Exhibit GD4-7 of file No. GE-13-1317, and Exhibit GD4-6 of file No. GE-13-2185).
  2. (b) It explained that the Appellant's situation was based on an established schedule that included alternate periods of work and leave during the employment period. The Commission submitted that the Appellant did not dispute the work arrangement because he was the one who provided the annual calendar (Exhibits GD3-23 to GD3-33 of file No. GE-13-1317, and Exhibits GD3-77 to GD3-83 of file No. GE-13-2185). The Commission indicated, however, that, according to the Appellant, when he was on leave, he was available for work and looking for employment (Exhibit GD3-6 of file No. GE-13-1317, and Exhibit GD2-2 of file No. GE-13-2185; Exhibit GD4-7 of file Nos. GE-13-1317 and GE-13-2185).
  3. (c) It argued that the notion of availability must not be confused with unemployment. It reiterated that the former is provided for in section 18 of the Act, and the latter in section 11 of the Act. It also argued that [translation] "it is weeks of unemployment that can be compensated according to the wording of the Act" (Exhibit GD4-7 of file Nos. GE-13-1317 and GE-13-2185).
  4. (d) It submitted that it is a [translation] "fundamental requirement, for any person who has a benefit period established, to demonstrate that they were unemployed during every week for which they claimed benefits" (Exhibit GD4-8 of file No. GE-13-1317, and Exhibit GD4-7 of file No. GE-13-2185).
  5. (e) It determined that the Appellant [translation] "continued to be employed while he was on leave (Exhibit GD4-8 of file No. GE-13-1317, and Exhibit GD4-7 of file No. GE 13 2185). It explained that this had to be the case because it was clear that the Appellant was not unemployed during his periods of leave. It argued that, although he was not governed by a collective agreement because he was an official in the company, he nevertheless had an employment contract (which may be considered verbal) with the company (Exhibit GD4 8 of file No. GE 13 1317, and Exhibit GD4 7 of file No. GE 13 2185). It added that the Appellant himself [translation] "provided evidence concerning his work schedule that could be considered an employment contract" (Exhibits GD3-17, GD3-20 and GD3-22 of file No. GE-13-1317, and Exhibits GD3-77 to GD3-83 of file No. GE-13-2185; Exhibit GD4-8 of file No. GE-13-1317, and Exhibit GD4-7 of file No. GE-13-2185).
  6. (f) It submitted that the Appellant [translation] "travelled with a work team, he worked with a work team and he returned with this same work team. Therefore, although his position was as an official, he worked according to an arrangement that was not like a normal work week" (Exhibit GD4-8 of file No. GE-13-1317, and Exhibit GD4-7 of file No. GE-13-2185).
  7. (g) It also specified that the Appellant [translation] "worked 280 hours over a period of six weeks, whereas a person who works a normal week works 240 hours during this same period. Therefore, for this reason, the claimant's work arrangement cannot be considered a normal week of work" (Exhibit GD4-8 of file No. GE-13-1317).
  8. (h) It specified that it did not doubt that the Appellant conducted employment searches to find other work closer to his home (Exhibit GD4-8 of file No. GE-13-1317, and Exhibit GD4-7 of file No. GE-13-2185). It concluded that, considering the Appellant's work schedule, his searches were [translation] "similar to those conducted by a claimant who works 40 hours a week and who conducts such searches in the evenings or on weekends, that is, during their rest periods" (Exhibit GD4-8 of file No. GE-13-1317, and Exhibit GD4-7 of file No. GE-13-2185).
  9. (i) It argued that, although the Appellant disagreed that the 19 consecutive days without pay were part of his work schedule, he [translation] "worked more consecutive hours and days, under a management agreement, in order to have 19 days of leave" (Exhibit GD4-8 of file No. GE-13-1317, and Exhibit GD4-7 of file No. GE-13-2185).
  10. (j) In response to the Appellant's question indicating that he would like to understand why public servants accepted his benefit claim without any problem, and why he was now being asked to pay back the total amount of $4,245.00, as well as in response to his statement that he felt wronged by the incompetence of the public servants who worked on his file, the Commission explained that [translation] "the claimant's name and social insurance number came up during an audit of employees working outside the region. Therefore, initially, it is possible that the officer who processed the file erred in considering that the claimant was not working because of a shortage of work when he was actually on a period of leave" (Exhibit GD4-9 of file No. GE-13-1317).
  11. (k) It stated that although it was [translation] "aware that an error could have been made during the initial processing of the Employment Insurance benefit claim, the fact remains that, unfortunately, given the presence of new facts, the Commission must correctly re-establish the facts on file and apply section 44 of the Employment Insurance Act" (Exhibit GD4-9 of file No. GE-13-1317, and Exhibit GD4-8 of file No. GE-13-2185). It reiterated that section 44 of the Act stipulates that a person who has received or obtained a benefit payment to which the person is disentitled, or a benefit payment in excess of the amount to which the person is entitled, shall without delay return the amount, the excess amount or the special warrant for payment of the amount, as the case may be (Exhibit GD4-9 of file No. GE-13-1317, and Exhibit GD4-7 of file No. GE-13-2185).
  12. (l) It indicated that it was therefore obligated to ask the Appellant to repay the overpayment of $3,744.00 because he received this amount to which he was disentitled (Exhibit GD4-9 of file No. GE-13-1317, and Exhibit GD4-7 of file No. GE-13-2185).
  13. (m) It indicated that [translation] "the notice sent to the claimant contained clerical errors. The notice indicated March 20, 2103, and April 15, 2103. It is clear that these should read 2013 instead (pages GD3 88 to GD3 89)" (Exhibit GD4-5 of file No. GE 13 2185). The Commission added the following explanation: [translation] "In A 128-89, the Federal Court of Appeal confirmed the principle established by Pinard J. in CUB 16233, according to which an error which does not cause hardship to the claimant is not fatal to the decision under appeal. Therefore, the Tribunal can and should uphold the decision." (Exhibit GD4 5 of file No. GE 13 2185)

Analysis

[20] According to section 9 of the Act: "When an insured person who qualifies under section 7 or 7.1 makes an initial claim for benefits, a benefit period shall be established and, once it is established, benefits are payable to the person in accordance with this Part for each week of unemployment that falls in the benefit period."

[21] Subsection 11(1) of the Act defines a "week of unemployment" as follows: "A week of unemployment for a claimant is a week in which the claimant does not work a full working week."

[22] Subsection 11(4) of the Act further stipulates that: "An insured person is deemed to have worked a full working week during each week that falls wholly or partly in a period of leave if (a) in each week the insured person regularly works a greater number of hours, days or shifts than are normally worked in a week by persons employed in full-time employment; and (b) the person is entitled to the period of leave under an employment agreement to compensate for the extra time worked."

[23] The evidence on file shows that, overall, the Appellant worked "a greater number of hours, days or shifts than are normally worked in a week by persons employed in full-time employment" as stipulated in section 11(4) of the Act.

[24] Although the Appellant stated that the work teams' calendar that he submitted to the Commission was not a work schedule, that it was a document used for information purposes to provide context and that the names on it were not all valid, this calendar shows that the Appellant alternated periods of work with periods of leave.

[25] As the Commission pointed out in its arguments, the Appellant did not dispute the arrangement of the work schedule because he himself provided evidence to this effect (Exhibits GD3-23 to GD3-33 of file No. GE-13-1317, and Exhibits GD3-77 to GD3-83 of file No. GE-13-2185; Exhibit GD4-7 of file No. GE-13-1317; Exhibits GD4-7 and GD4-8 of file No. GE-13-2185).

[26] The evidence also shows that, despite the reasons for the separation from employment indicated on the Records of Employment issued by the Appellant's employers, the one indicating a shortage of work (Exhibit GD3 14 of file No. GE 13 1317), the other indicating "other" with the comment [translation] "at the employee's request" (Exhibit GD3-70 of file No. GE-13-2185), during the Appellant's periods of leave, there was no definite break in the employment relationships with these employers, namely, Groupe Sécurité Enquête du Québec Inc. (Exhibit GD3-14 of file No. GE-13-1317) and Gardium Sécurité Inc. (Exhibit GD3-70 of file No. GE-13-2185).

[27] Although the Appellant also argued that he had no contract or written agreement with the employer and that the collective agreement for unionized employees contained no provisions for the conditions of his employment, there was a verbal agreement, or convention, that acted as a contract and established a relationship between him and each of his employers, Groupe Sécurité Enquête du Québec Inc. and Gardium Sécurité Inc.

[28] Furthermore, the term "contract" means "a written or spoken agreement between two or more parties, intended to be enforceable by law" (Katherine Barber, Canadian Oxford Dictionary, Second Edition, Oxford University Press Canada 2004, page 329).

[29] Although the Appellant showed that he was available to work and that he conducted job searches during his weeks of leave, he nevertheless cannot be considered unemployed within the meaning of the Act.

[30] With respect to the Appellant's questions as to why public servants accepted his benefit claim without any problem and why he now has to pay back the total amount of $4,245.00, and his statement that he felt wronged by the so-called incompetence of these public servants who worked on his file, the Commission gave the following explanation: [translation] "…the claimant's name and social insurance number came up during an audit of employees working outside the region. Therefore, initially, it is possible that the officer who processed the file erred in considering that the claimant had a shortage of work when he was actually on a period of leave" (Exhibit GD4-9 of file No. GE-13-1317).

[31] The Commission also explained that although it was "aware that an error could have been made during the initial processing of the Employment Insurance benefit claim, the fact remains that, unfortunately, in the presence of new facts, the Commission must correctly re-establish the facts on file and apply section 44 of the Employment Insurance Act" (Exhibit GD4-9 of file No. GE-13-1317, and Exhibit GD4-8 of file No. GE-13-2185).

[32] The Tribunal repeated that, with regard to the "liability to return overpayment", section 44 of the Act specifies that "A person who has received or obtained a benefit payment to which the person is disentitled, or a benefit payment in excess of the amount to which the person is entitled, shall without delay return the amount, the excess amount or the special warrant for payment of the amount, as the case may be."

[33] Lastly, even though the appellant stated that other people in the same situation as he was in were not considered to be on leave and were entitled to receive Employment Insurance benefits, the Tribunal cannot rule on cases that are not before it, and therefore cannot accept this argument in his favour.

[34] In short, the Appellant's situation comes under the exception set out in subsection 11(4) of the Act, meaning that, during his periods of leave, he is deemed to have worked full weeks of work. He therefore cannot be considered unemployed during these weeks (subsection 11(1) of the Act).

[35] Despite the reasons given and clarifications made by the Appellant regarding the periods of leave he had as part of his work, he did not provide new facts or evidence that could establish his entitlement to receive Employment Insurance benefits.

[36] Consequently, the Tribunal finds that the imposition on the Appellant of a disentitlement under section 9 and subsections 11(1) and 11(4) of the Act was justified.

[37] There is no merit to the appeal on this issue.

Conclusion

[38] The appeal is dismissed.

Date modified: