Federal Court of Appeal - Banwait v. Canada (Minister of National Revenue)

[1] This is an application to review and set aside a judgment of the Tax Court of Canada dated April 4, 2003 which, in effect, varied a decision of the Minister of National Revenue. The Deputy Tax Court Judge added 25 hours of insurable employment to the 519 hours that had been determined by the Minister to be the total hours of insurable employment engaged in by the applicant during the period September 2, 1997 and June 26, 1998.

[2] During that period of time the applicant was employed by the Metropolitan Toronto Police Service as a school crossing guard. Unfortunately, the record now before the Court upon which we must make our decision does not contain the precise terms and conditions of the applicant's employment.

[3] In coming to his conclusion, the Deputy Tax Court Judge applied section 9.1 of the Employment Insurance Regulations, SOR/96-332. That section reads:

9.1 Where a person's earnings are paid on an hourly basis, the person is considered to have worked in insurable employment for the number of hours that the person actually worked and for which the person was remunerated.

[4] In order to qualify for benefits, the applicant had to have no fewer that 630 hours of insurable employment. He contends that, based on his pay stubs, he had in excess of this minimum requirement and that the Deputy Tax Court Judge erred in not so finding.

[5] The applicant further argues that transitional section 94.1 of the Regulations applies. That section reads:

94.1 Where, for the purposes of the Act and in respect of a benefit period established on or after January 5, 1997, a claimant presents evidence of a week of insurable employment that occurred before January 1, 1997, that week of insurable employment shall be considered to represent 35 hours of insurable employment.

[6] According to the record, the applicant was paid for the actual hours he worked as a crossing guard at the rate of $10.88 per hour. In addition, he earned a credit in respect of

vacation pay and a travelling allowance. The vacation pay credit represented 4% of his regular pay for each pay period while the travelling allowance represented 12% of that pay.

[7] At the hearing before the Tax Court counsel for the respondent advised the Court, after reviewing the applicant's pay stubs with the applicant during a recess, that the Minister had neglected to credit the applicant with an additional 25 hours of insurable employment during the period in question. The Deputy Tax Court Judge agreed that this was so and varied the Minister's decision accordingly. The total of insurable hours thus became 544.

[8] This, however, did not satisfy the applicant who maintained in this Court that he ought also to have been credited for the hours that he stood by (his so-called "vacant period") during school hours as well as in respect of vacation pay credits and travelling allowance. It is clear, however, that to be credited with insurable employment pursuant to section 9.1 of the Regulations a person must have worked for "the number of hours that the person actually worked and for which the person was remunerated". Thus his stand by time and other credits could only be treated as insurable employment if he "actually worked" and "was remunerated" in respect of those amounts.

[9] It is not clear from the record that the applicant was "remunerated" by the employer for standing by and for the other credits. The applicant contended in the Tax Court that the travelling allowance was paid so as to compensate him for stand by time. The Deputy Tax Court Judge rejected the argument. He found that the applicant "is not being remunerated for a period of time that he is required to stand by outside of his regularly scheduled hours of work". While the record indicates that the applicant was paid a travelling allowance during the period in question it is not so clear that this allowance represented a method of paying him for standing by. The evidence simply does not clearly establish that the travelling allowance was so intended. What the evidence does show is that the applicant was paid for work actually done as a crossing guard, that he was given a vacation pay credit and an allowance for travelling. There is simply no evidence that the employer agreed to pay him and did in fact pay him in the form of the travelling allowance for standing by. Nor is there evidence that the vacation pay and travelling allowance were counted by the applicant's employer as time "actually worked" by the applicant in addition to the time worked as a crossing guard. Rather, they were but percentages of his regular pay for work actually performed and not as compensation for additional work performed by the applicant.

[10] Finally, the applicant submits that section 94.1 of the Regulations applies. As already mentioned, the Minister's ruling concerned the total insurable hours of employment for the period September 2, 1997 to June 26, 1998. Section 94.1, by it's own terms, applies only where a claimant presents evidence of a week of insurable employment "that occurred before January 1, 1997". All of the applicant's weeks of insurable employment were worked during the above mentioned period which did not commence until September 2, 1997. Accordingly, section 94.1 cannot assist the applicant.

[11] The application should therefore be dismissed but as the respondents are not insisting on costs none will be awarded.

"A. J. Stone"

J.A.

"I agree

J. E. Sexton"

"I agree

B. Malone"

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-151-03

STYLE OF CAUSE: AVTAR SINGH BANWAIT

Applicant

and

MINISTER OF NATIONAL REVENUE

AND ATTORNEY GENERAL OF CANADA

Respondents

PLACE OF HEARING: TORONTO, ONTARIO

DATE OF HEARING: JANUARY 13, 2004

REASONS FOR JUDGMENT: STONE J.A.

CONCURRED IN BY: SEXTON J.A.

MALONE J.A.

DATED: JANUARY 14, 2004

APPEARANCES:

Avtar Singh Banwait FOR THE APPLICANT,

ON HIS OWN BEHALF

Letellier de St.Just

Eric Sherbert FOR THE RESPONDENTS

SOLICITORS OF RECORD:

Mr. Banwait

Maple, Ontario FOR THE APPLICANT,

ON HIS OWN BEHALF

Morris Rosenberg

Deputy Attorney General of Canada

Toronto, Ontario FOR THE RESPONDENTS