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Decision
[1] The appeal is dismissed.
Introduction
[2] On October 25, 2012, a panel of the board of referees (the “Board”) determined that the appeal of the Appellant should be dismissed. The Appellant subsequently appealed that decision to an umpire.
[3] On April 1, 2013 the Appeal Division of the Social Security Tribunal of Canada (“the Tribunal”) became seized of any appeal not heard by an umpire by that date.
[4] On September 4, 2014, a teleconference hearing was held. The Appellant and the Commission each attended and made submissions.
The law
[5] To ensure fairness, this matter will be examined based upon the Appellant’s legitimate expectations at the time of the appeal to an umpire. For this reason, the present appeal will be decided in accordance with the legislation in effect immediately prior to April 1, 2013.
[6] According to subsection 115(2) of the Employment Insurance Act (“the Act”) which was in effect before April 1, 2013, the only grounds of appeal are that:
- (a) the board of referees failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
- (b) the board of referees erred in law in making its decision or order, whether or not the error appears on the face of the record; or
- (c) the board of referees based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.
[7] The standard of review for questions of law and jurisdiction is correctness.
[8] The standard of review for questions of fact and mixed fact and law is reasonableness.
Analysis
[9] This case revolves around the issue of whether or not certain moneys transferred from the Employment Standards Branch of the Ontario Ministry of Labour (“the ESB”) to the Appellant constituted earnings according to the Act. In its decision, the Board held that the moneys were indeed earnings, and that the earnings must be allocated. By agreement, this determination applied not just to the Appellant, but also to seven other claimants in identical circumstances.
[10] Prior to the hearing, the Appellant submitted a number of documents attached to a letter dated February 14, 2013, which were allegedly before the Board but not properly added to the docket. At the hearing before me, the Commission did not oppose their inclusion. As these documents are material to the matter at hand, I accept them into evidence.
[11] The Appellant argues two separate points. First, he submits that his employment was never severed and therefore the moneys cannot be considered a severance payment. Second, he further submits that the Appellant did not receive any benefit from the transferred moneys and “was required” to use those funds to purchase shares in order to keep his Employer in business and retain his employment. By concluding otherwise, the Appellant argues that the Board erred in law and in fact.
[12] The Commission notes that whatever the moneys in question were referred to as, they arose because the Appellant had been employed and, regardless of what they were eventually used for, were paid to the RRSP of the Appellant. They therefore ask that the appeal be dismissed.
[13] Although the parties take very different positions on the meaning of the evidence, the evidence itself is not in dispute. This evidence shows that the Appellant and his fellow mill workers participated in an arrangement to ensure the financial viability of their employer following the initial closure of the mill. As noted in the agreement between the Employer, the union, and the Appellant, the Appellant agreed to “accept payment of the severance pay held in trust” by the ESB. The Appellant then agreed, in consideration for employment with the Employer, to purchase shares in the Employer and to acknowledge that he had been “fully compensated for all claims of severance”. The agreement notes that any further compensation for severance will be based upon the new date of recall, not the original hiring date.
[14] Further to this agreement, the Appellant signed a letter directing the ESB to “pay the severance pay currently held in trust for me… into my RRSP”. In response to this letter, the ESB replied that “I have received your request to renounce your recall rights… I anticipate that the funds held on your behalf will be distributed within three weeks.”
[15] These moneys were then used in accordance with an irrevocable direction for the purchase of shares as noted above.
[16] This evidence leads me along the same path that the Board travelled: that regardless of how the Appellant characterized this transaction, he received severance moneys that had been held by the ESB until such time as he renounced his recall rights. Having done so, the moneys were paid to him via a transfer to his RRSP. Therefore, as correctly cited by the Commission, in accordance with Canada (Attorney General) v. Cantin (2008 FCA 192) the moneys received were indeed earnings to be allocated according to the Act.
[17] Whatever these moneys were eventually used for does not alter this.
[18] Having considered the docket, the submissions, and the decision of the Board, I find that the Board made the correct decision for the correct reasons. I have found no evidence to support the grounds of appeal invoked or any other possible ground of appeal. There is no reason for the Tribunal to intervene.
Conclusion
[19] For the above reasons, the appeal is dismissed.