Employment Insurance (EI)

Reasons and decision

Persons in attendance

[1] The hearing initially scheduled for August 12, 2015 was postponed and a new hearing date was set for September 24, 2015. The Appellant, P. D., was present during the telephone hearing (teleconference) held on September 24, 2015. He was also represented by Guy Ruel, Counsel.

Introduction

[2] On April 30, 2010, the Appellant made an initial claim for benefits effective April 4, 2010 (exhibits GD3-3 to GD3-17 of file GE-15-786).

[3] On December 15, 2011, the Appellant made an initial claim for benefits effective November 27, 2011. The Appellant stated he had worked for the employer, Gestion Personnel Prestige inc., from June 26, 2011 to November 25, 2011 inclusive. He also reported that he had worked for the employer Transport Rush inc. from August 14, 2011 to October 29, 2011 inclusive, and that he ceased working for this employer because of a shortage of work (Exhibits GD3-3 to GD3-20 of file GE-15-787).

[4] On November 26, 2012, the Appellant made an initial claim for benefits effective November 25, 2012. The Appellant reported working for the employer Gestion Personnel Prestige inc., from December 4, 2011 to November 9, 2012 inclusive (Exhibits GD3-3 to GD3-19 of file GE-15-789).

[5] In three similar letters, the Respondent, Canada Employment Insurance Commission, ( the “Commission”) informed the Appellant on November 25, 2014 that the allocation of his earnings from the employers Gestion de personnel Inter-Cam inc., Transport Rush inc. and Gestion Personnel Prestige inc. had been adjusted for the weeks covered by his benefit periods (Exhibits GD3-134 and GD3-135 of file GE-15-786, Exhibits GD3-120 and GD3-121 of file GE-15-787, Exhibits GD3-122 and GD3-123 of file GE-15-789).

[6] On November 25, 2014, the Commission informed the Appellant that it had reconsidered his claim for benefits that had started on April 4, 2010. The Commission pointed out that the Employment Insurance Act (the « Act ») allowed it to reconsider any claim for benefit within 36 months of the date on which the benefits were paid or payable, and that when it believed that incorrect reports or false or misleading statements had been made, the reconsideration period could be extended to 72 months. The Commission stated that in its opinion one or more false or misleading statements had been made (Exhibits GD3-136 and GD3-137 of file GE- 15-786).

[7] On November 28, 2014, the Commission informed the Appellant that he was not entitled to regular Employment Insurance benefits commencing October 10, 2010 because he had voluntarily left his employment with the employer Transport Rush inc., on October 15, 2010, without just cause within the meaning of the Act (Exhibits GD3-138 and GD3-139 of file GE-15-786).

[8] On December 30, 2014, the Appellant filed a Request for Reconsideration (Exhibits GD3-140 to GD3-142 of file GE-15-786, Exhibits GD3-122 to GD3- 124 of file GE-15-787, Exhibits GD3-124 to GD3-126 of file GE-15-789).

[9] On February 9, 2015, the Commission notified the Appellant that it was maintaining the decision in his case made on November 28, 2014 concerning the reconsideration time frame and voluntarily leaving, as well as the decision made on November 25, 2014, concerning the allocation of his earnings (claim for benefit starting on April 4, 2010), (Exhibits GD3-143 to GD3-145 of file GE-15-786).

[10] In two similar letters dated February 9, 2015, the Commission notified the Appellant that it was standing by the decision made in his case on November 25, 2014 concerning the allocation of his earnings (claims for benefit starting November 27, 2011 and November 25, 2012), (Exhibits GD3-125 and GD3-126 of file GE-15-787, Exhibits GD3-127 and GD3-128 of file GE-15-789).

[11] On March 2, 2015, the Appellant filed a Notice of Appeal with the Employment Insurance Section of the Social Security Tribunal of Canada's General Division ("the Tribunal"), (Exhibits GD2-1 to GD2-9 of files GE-15-786, GE-15-787 and GE-15-789).

[12] On March 6, 2015, the Tribunal informed the employer Transport Rush inc. that if it wanted to become an “added party” in this case, it would have to file a request to that effect with this authority no later than March 23, 2015 (Exhibits GD5-1 and GD5-2 of file GE-15-786). The employer did not act on that request.

[13] On June 16, 2015, the Tribunal informed the Appellant that the appeals numbered GE- 15-786, GE-15-787 and GE-15-789 had been joined pursuant to s. 13 of the Social Security Tribunal Regulations, because “a common question of law or fact arises” in the appeals, and “no injustice is likely to be caused to any party” (Exhibits GD6-1 and GD6-2 of file GE-15-786, Exhibits GD5-1 and GD5-2 of files GE-15-787 et GE-15-789).

[14] This appeal was heard by teleconference for the following reasons:

1. The fact that the appellant or other parties are represented;
2. This type of hearing respects the requirement under the Social Security Tribunal Regulations to proceed as informally and quickly as circumstances, fairness and natural justice permit (Exhibits GD1-1 to GD1-4 of files GE-15-786, GE-15-787 and GE-15-789).

[15] At the outset of the hearing, the Appellant’s representative informed the Tribunal that on further examination, the Appellant had decided to withdraw his appeal in files GE-15-787 (allocation of earnings– benefit period starting on November 27, 2011) and GE-15-789 (allocation of earnings – benefit period starting on November 25, 2012).

Issues

[16] The Tribunal must determine whether the appeal from the Commission’s decision has merit on the following three issues:

1. The Commission’s decision to reconsider the Appellant’s claim for benefit, pursuant to s. 52 of the Act, namely, within the 36-month time limit when benefits are paid or payable, or within the 72-month time limit when it believes that a false or misleading statement was made;
2. The Applicant’s disentitlement, for an indefinite period, from receiving employment insurance benefits because he left his employment voluntarily without just cause, pursuant to sections 29 and 30 of the Act;
3. Determination of earnings received by the Appellant pursuant to section 35 of the Employment Insurance Regulations (the “Regulations”) and the allocation of such earnings pursuant to section 36 of the Regulations.

The law

[17] Concerning the reconsideration of a claim for Employment Insurance benefits, subsection 52(1) of the Act provides that:

1. (1) Despite section 111, but subject to subsection (5), the Commission may reconsider a claim for benefit within 36 months after the benefits have been paid or would have been payable.

[18] Concerning the “extended time to reconsider a claim,” subsection 52(5) of the Act states:

1. (5) If, in the opinion of the Commission, a false or misleading statement or representation has been made in connection with a claim, the Commission has 72 months within which to reconsider the claim.

[19] The provisions on voluntary leaving are set out in sections 29 and 30 of the Act.

[20] Concerning the application of ss. 30 to 33 of the Act concerning disqualification from receiving Employment Insurance benefits in cases of “leaving without just cause,” subsection 29c) of the Act provides that:

[…] just cause for voluntarily leaving an employment or taking leave from an employment exists if the claimant had no reasonable alternative to leaving or taking leave, having regard to all the circumstances, including any of the following: (i) sexual or other harassment, (ii) obligation to accompany a spouse, common-law partner or dependent child to another residence, (iii) discrimination on a prohibited ground of discrimination within the meaning of the Canadian Human Rights Act, (iv) working conditions that constitute a danger to health or safety, (v) obligation to care for a child or a member of the immediate family, (vi) reasonable assurance of another employment in the immediate future, (vii) significant modification of terms and conditions respecting wages or salary, (viii) excessive overtime work or refusal to pay for overtime work, (ix) significant changes in work duties, (x) antagonism with a supervisor if the claimant is not primarily responsible for the antagonism, (xi) practices of an employer that are contrary to law, (xii) discrimination with regard to employment because of membership in an association, organization or union of workers, (xiii) undue pressure by an employer on the claimant to leave their employment, and (xiv) any other reasonable circumstances that are prescribed.

[21] Subsections 30(1) and 30(2) of the Act make the following provision concerning "disqualifications" from benefit:

1. […] (1) A claimant is disqualified from receiving any benefits if the claimant lost any employment because of their misconduct or voluntarily left any employment without just cause, unless (a) the claimant has, since losing or leaving the employment, been employed in insurable employment for the number of hours required by section 7 or 7.1 to qualify to receive benefits; or (b) the claimant is disentitled under sections 31 to 33 in relation to the employment.
2. (2) The disqualification is for each week of the claimant's benefit period following the waiting period and, for greater certainty, the length of the disqualification is not affected by any subsequent loss of employment by the claimant during the benefit period.

[22] The provisions on “determination of earnings for benefit purposes” and “allocation of earnings for benefit purposes” are set out in sections 35 and 36 of the Regulations, respectively.

[23] For the “determination of earnings for benefit purposes,” section 35 of the Regulations defines “income” as “[…] any pecuniary or non-pecuniary income that is or will be received by a claimant from an employer or any other person, including a trustee in bankruptcy.” Section 35 also specifies which income is considered earnings.

[24] Subsection 35(2) of the Regulations states the following:

Subject to the other provisions of this section, the earnings to be taken into account for the purpose of determining whether an interruption of earnings under section 14 has occurred and the amount to be deducted from benefits payable under section 19, subsection 21(3), 22(5), 152.03(3) or 152.04(4) or section 152.18 of the Act, and to be taken into account for the purposes of sections 45 and 46 of the Act, are the entire income of a claimant arising out of any employment […].

[25] Once this point is made, section 36 of the Regulations specifies the weeks to which earnings must be allocated.

[26] Amounts received from an employer are therefore considered earnings and must be allocated unless they are covered by the exceptions set out in subsection 35(7) of the Regulations or are not from employment.

[27] Concerning the “allocation of earnings for benefit purposes,” subsection 36(4) of the Regulations states: “Earnings that are payable to a claimant under a contract of employment for the performance of services shall be allocated to the period in which the services were performed.”

Evidence

[28] The evidence on file is as follows:

1. A record of employment, dated July 21, 2010, states that the Appellant worked for the employer Provigo Québec inc., from September 16, 1973 to April 2, 2010 inclusive and that he ceased working for this Employer for another reason (code K – Other), (Exhibit GD3-18 of file GE-15-786);
2. A record of employment, dated September 8, 2010, states that the Appellant worked for the employer Gestion de personnel Inter-Cam inc., from August 13, 2010 to August 20, 2010 inclusive and that he ceased working for this employer after he left voluntarily (code E – Voluntarily leaving), (Exhibit GD3-19 of file GE-15-786);
3. A record of employment, dated January 26, 2012, states that the Appellant worked for the employer Transport Rush inc., from June 15, 2010 to October 15, 2010 inclusive and that he stopped working for this employer after voluntarily leaving (code E – Voluntarily leaving), (Exhibit GD3-20 of file GE-15-786);
4. A record of employment, dated December 8, 2011, states that the Appellant worked as a “truck driver” for the employer Gestion Personnel Prestige inc., from June 26, 2011 to November 25, 2011 inclusive, and that he ceased working for this employer due to a shortage of work (code A – Shortage of work / end of contract or season), (Exhibit GD3-21 of file GE-15-786);
5. On October 15, 2012, the employer Gestion Personnel Prestige inc. stated that the Appellant was working on call, as needed, and that he had stopped working due to a shortage of work (Exhibits GD3-22 and GD3-23 of file GE-15-786);
6. In a document entitled, “Request for Payroll Information—Demande de renseignements – Registres de paie,” completed on July 18, 2012, and using documents titled, [translation] “Payroll,” the employer Transport Rush inc. reported making payments to the Appellant as salary for the weeks starting August 22, 2010, August 29, 2010, September 5, 2010, September 19, 2010 and October 3, 2010 (Exhibits GD3-24 to GD3-34 of file GE-15-786);
7. In a document titled, “Request for Payroll Information—Demande de renseignements – Registres de paie,” completed on October 15, 2012 (date of facsimile transmission), the employer Gestion Personnel Prestige inc. reported making payments to the Appellant as salary for the week starting December 4, 2011 to the week starting January 22, 2012 and for the week starting April 8, 2012 (Exhibits GD3-35 and GD3-36 of file GE- 15-786);
8. In a document titled, “Request for Payroll Information—Demande de renseignements – Registres de paie,” completed on February 14, 2014, the employer Gestion Personnel Prestige inc. reported making payments to the Appellant as salary for the week starting November 25, 2012, the period between the week starting on December 23, 2012 to the week starting February 17, 2013, the week starting on March 10, 2013 and the period covering the week starting on March 24, 2013 to the week starting May 12, 2013 (Exhibits GD3-37 to GD3-39 of file GE-15-786);
9. In various documents titled, “Request for Clarification of Employment Information–  Demande de clarification de renseignements sur l’emploi,” completed on January 2, 2014 and in a letter to the Commission dated July 7, 2014, the Appellant explained the discrepancies between the amounts provided by the employers Gestion de personnel Inter-Cam inc. and Transport Rush inc. for work performed for these employers, and the amounts he reported for the weeks in question during the years 2010 to 2013 inclusive (Exhibits GD3-41 to GD3-51 of file GE-15- 786);
10. On January 21, 2014, the Appellant reported that he had voluntarily left his employment with the employer Transport Rush inc. on October 15, 2010 because he could no longer work on call. He said he wanted to find another job with regular hours (Exhibit GD3-40 of file GE-15-786);
11. On June 26, 2014, the employer Transport Rush inc. stated that the Appellant had received earnings of $242.88 for the week from August 15, 2010, and had left his employment after finding another. The employer said that the Appellant could have continued working had he not left his employment (Exhibit GD3-52 of file GE-15-786);
12. On July 4, 2014, the Appellant explained that he had voluntarily left his employment with the employer Transport Rush inc. because he was working on call and the employer could no longer provide him with full-time work. He pointed out that he had insufficient hours and had left this job due to a shortage of work (Exhibits GD3-53 and GD3-54 of file GE-15-786);
13. In an undated document, the Commission stated that for the period from August 8, 2010 to August 13, 2011, the Appellant’s electronic reports and the certification provided by an agent of the Commission (copies of the Appellant’s questions and answers were reproduced on March 10, 2015), showing that the said Appellant had reported working for several weeks during the period in question and reported the earnings he had received as a result (Exhibits GD3-55 to GD3- 130 of file GE-15-786);
14. In two documents providing details on the notice of debt (DH009) dated November 29, 2014 and reproduced on March 10, 2015, the total amount of the Appellant's debt was established as $18,916.00 (Exhibits GD3-131 and GD3-132 of file GE-15-786);
15. In an explanation of net overpayment document titled, “Explication du trop-payé net” on March 9, 2015, the Commission explained how it had established the amount of the $16,380.00 overpayment made to the Appellant for the claim for benefit starting on April 4, 2010, and $1,163.00 for the claim for benefit starting on November 27, 2011 and $491.00 for the claim for benefit commencing on November 25, 2012 (Exhibit GD3-133 of file GE-15-786);
16. A document titled, [translation] “Full Text Screens – Payment History Breakdown,” reproduced on March 11, 2015, states the amounts paid to the Appellant in benefits and the allocation made in the reporting weeks from April 4, 2010 to August 7, 2011 (Exhibits GD3-147 to GD3-150 of file GE-15-786).

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

1. The Appellant explained that the employer Transport Rush inc. is an employee placement or management company. He said he worked on call in the trucking field for this employer;
2. To explain why he had no reports for the period from October 17, 2010 to October 30, 2010 among those that the Commission had included in the file (GE-15-786), the Appellant said that he believed he had not completed any reports for this period (Exhibits GD3-55 to GD3-130 of file GE-15-786). He also said that there had always been the same « time lapse » since he started filling out his reports, which might have led to mistakes (Exhibits GD3-41 and GD3-51 of file GE-15-786);
3. He explained that he had notified the employer Transport Rush inc. that he was leaving in the week of November 7, 2010 to November 13, 2010 because, he believed, he had to get a final pay record during this time period from his employer (Transport Rush inc.), (Exhibits GD3-96 and GD3-97 of file GE-15-786).

Parties’ arguments

[30] The Appellant's representative made the following submissions and arguments:

1. The representative said that the only issue challenged by the Appellant and the only issue relevant to this case concerned the time limit for reconsidering the claim of the said Appellant, which the Commission applied pursuant to s. 52 of the Act (dossier GE-15-786). The representative specified that the voluntarily leaving of employment with the employer Transport Rush inc. related to the issue of the reconsideration time frame, but that the voluntary leaving in question was without just cause within the meaning of the Act. He said he had no information to submit on this matter;
2. The representative stated that the issue concerning the allocation of earnings was maintained in file GE-15-786. He mentioned, however, that he had no evidence to submit on this item because false representations had been made and the Commission was therefore entitled to extend the review period to 72 months. He explained that the Appellant’s income had not been reported in the correct weeks because the Appellant always reported his income with a two weeks lag in all of his benefit periods;
3. He pointed out that the Commission could not go back farther than 36 months and could not apply a 72-month reconsideration period because the Appellant had not omitted to report two instances of voluntary leaving, as the Commission stated in a letter dated November 28, 2014, and that he had not made false or misleading statements in this regard when he completed his regular reports (Exhibit GD3-136 of file GE-15-786). The representative submitted that the Appellant had never omitted to report or tried to conceal his voluntarily leaving of employment with the employer Transport Rush inc., on October 15, 2010, in the reports he completed during his benefit period;
4. He explained that for the period from September 5, 2010 to September 18, 2010, the Appellant had reported that he was working at the time for two employers (Gestion de personnel Inter- Cam inc. and Transport Rush inc.) and that he later reported that he had stopped working for one of them (Gestion de personnel Inter-Cam inc.) in this period (Exhibits GD3-67 to GD3-73 of file GE-15-786). The representative stated that this was one of the two instances of voluntary leaving for which the Commission had determined that the Appellant made a false representation by omitting to report it, when in fact the Commission had indeed been informed of this voluntarily leaving (Exhibit GD3-136 of file GE-15- 786);
5. The representative said that the Appellant had also correctly completed his reports for the period from October 31, 2010 to November 13, 2010 when he stated that he had worked the week of October 31, 2010 to November 6, 2010 (Exhibits GD3-93 and GD3-94 of file GE-15-786), and then indicated that he had not worked in the week of November 7, 2010 to November 13, 2010 (Exhibits GD3-95 and GD3-96 of file GE-15-786). He underscored that in this same week (November 7 to 13, 2010), the Appellant answered “yes” to the following question: [translation] “Did you stop working for an employer during the period covered by this report?” and “yes” to the question: [translation] “Did you stop working for a reason other than a lay-off or on call work?” (Exhibit GD3-97 of file GE-15-786). The representative underscored that the Appellant had answered correctly since his job with the employer Transport Rush inc. was on-call work. He underscored that one reporting period was missing among those that the Commission had included in the file, the report covering the period from October 17, 2010 to October 30, 2010 (Exhibits GD3-55 to GD3-130 of file GE-15-786);
6. The representative pointed out that the Appellant had been transparent in completing his reports and had not made a false statement concerning his voluntarily leaving of the employer Transport Rush inc. He explained that the Appellant had reported in November 2010 that he stopped working on October 15, 2010, for the employer Transport Rush inc., because the Appellant was still out of sync, since he was completing his regular report with a two-week lag (in other words, reporting income in the week he received his pay, not in the week that the work was done), as many claimants do;
7. In his opinion, although the Appellant did not have just cause within the meaning of the Act to voluntarily leave his employment, the Commission could not go back farther than 36 months in reconsidering the Appellant’s case, in other words, beyond November 2011. He explained that the Commission had given its decision in November 2014 and that the amounts claimed from the Appellant related to the period from October 15, 2010 to June 25, 2011, which represents a period of more than 36 months;
8. In the representative’s assessment, the Commission had not proven that the Appellant had misrepresented his voluntarily leaving of employment with the employer Transport Rush inc. and that its only complaint was that the Appellant had made false statements. He explained that the Appellant had never concealed that he had voluntarily left the employer Transport Rush inc., or that he had voluntarily left the employer Inter-Cam inc. and the Commission had not been misled in this regard. He underscored that the Appellant’s answer to the question on voluntarily leaving was given in his regular reports (Exhibits GD3-96, GD3-97 and GD3-136 of file GE- 15-786);
9. He said that false statements may have been made about the Appellant’s salary, but not concerning his voluntary leaving, and that the Commission had failed to make this distinction;
10. The Appellant stated that he had voluntarily left his employment with his employer on October 15, 2010 because he could no longer work on call and because he wanted to find another employment with a normal work schedule.
11. The Appellant explained that there were discrepancies between the amounts paid by the employers Gestion de personnel Inter-Cam inc. and Transport Rush inc. for work he had done for these employers, and the amounts he reported for the weeks in question in the years 2010 to 2013 inclusive, because he reported his earnings when he was paid, rather than when the work was performed or services rendered. He explained that this is why his earnings had not been reported in the correct weeks, and that it was a mistake (Exhibits GD3-41 to GD3-51 of file GE- 15-786).

[31] The Respondent (the Commission) made the following submissions and arguments:

1. It explained that when claimants have not received the benefits to which they are entitled, Section 52 of the Act provides that the Commission may reconsider a claim for benefits within 36 months after the benefits were paid or became payable.
   The Commission specified that the claimant had made a false or misleading representation, that this false statement or representation had been made knowingly or not, that the reconsideration time frame was extended as far as 72 months following the date on which the benefits were paid or became payable (Exhibit GD4-5 of file GE-15-786);
2. Subsection 30(2) of the Act provides for an indefinite disqualification of claimants who voluntarily leave their employment without just cause. It specified that the applicable test in the circumstances is to determine whether the claimant had a reasonable alternative to leaving his employment at the time of his leaving (Exhibit GD4-5 of file GE-15-786);
3. The Commission determined that the Appellant did not have just cause for leaving his employment on October 15, 2010 and had failed to prove that he had exhausted all reasonable alternatives before leaving. In the Commission’s view, considering all of the circumstances, one reasonable alternative would have been to ensure he had another job before voluntarily placing himself in a position of unemployment. It underscored that the Appellant’s work was not unbearable to the point that he had to leave without the assurance of a new job. The Commission stated that the employer had always met the terms and conditions of the employment contract, and that the Appellant had been hired to work on call, his working conditions had not changed and his salary was not reduced (Exhibits GD4-5 and GD4-6 of file GE-15-786);
4. In the Commission’s opinion, the Appellant had to find work better suited to his expectations because leaving his employment and claiming full benefits for several months is not just cause for voluntarily leaving. It underscored that the Appellant’s benefit rate was $457.00 and he could report gross earnings of $183.00 without any deductions from his benefits. It stated that the Appellant had returned to work on June 25, 2011 for Gestion Personnel Prestige inc., 36 weeks after voluntarily leaving his job (Exhibit GD4-6 of file GE- 15-786);
5. It submitted that dissatisfaction with the company’s management, the type of work he had accepted and the fact that he was hired to work on call did not constitute just cause for quitting his job. The Commission underscored that a reasonable solution in his case would have been to remain at work until he found a new job better suited to his expectations. It explained that quitting a job in order to claim Employment Insurance benefits requires just cause, and that the Appellant’s decision must constitute the only reasonable alternative. It submitted that the Appellant had a job, part-time and/or on-call, which is better than nothing, and that he had failed to prove that leaving his job was urgent within the meaning of the Act (Exhibit GD4-6 of file GE-15-786);
6. It pointed out that the Appellant received money from his employers Transport Rush inc. and Gestion Personnel Prestige inc. and that this money had been paid to him as salary. It submitted that this money constitutes earnings within the meaning of subsection 35(2) of the Regulations, since it was provided to the Appellant as payment for services rendered. It determined that under subsection 36(4) of the Regulations, it had been correct to allocate these earnings to the weeks in which the services were performed, not the weeks when the salary was paid (Exhibits GD4-6 and GD4-7 of file GE-15-786);
7. It explained that it had not found that false statements had been knowingly made, that it had not imposed a penalty on the Appellant, and that it had not issued him a Notice of Violation. It said that it changed his reports based on the information provided by his employers on the Appellant’s records of employment, which these employers later confirmed. It specified that the employers’ information was valid and was used to establish a claim for benefit. The Commission underscored that the Appellant had acknowledged reporting his earnings incorrectly (Exhibits GD3-41 to GD3-51 of file GE-15-786), because he waited to report his salary after he received it, whereas the Act and Regulations require that earnings be reported in the weeks when the services were rendered, in other words, in the weeks when the claimant was working, regardless of when the Employer paid the salary (Exhibit GD4-7 of file GE-15-786).

Analysis

Reconsideration of the claim for benefit

[32] Pursuant to section 52 of the Act, the Commission may reconsider a claim for benefits within 36 months after the benefits have been paid or would have been payable to a claimant. However, pursuant to this section, if the Commission notes that when a false or misleading statement or representation is made in connection with a claim for benefit, it has a 72-month time limit to reconsider the claim after the date on which benefit were paid or payable.

[33] In Dussault (2003 FCA 372 – A-646-02), the Federal Court of Appeal (the "Court") confirmed the Commission’s right to reconsider a claim for benefit pursuant to subsection 43(6) of the Unemployment Insurance Act (now subsection 52(5) of the Employment Insurance Act).

[34] In Pilote (A-868-97), the Court also established that the cancellation of warning letters did not bar the Commission from applying the provisions of subsection 43(6) of the Unemployment Insurance Act (now subsection 52(5) of the Employment Insurance Act) to extend the 36-month time limit provided in subsection 33(4) of the Unemployment Insurance Act (now s. 40 of the Employment Insurance Act) to 72 months.

[35] Herein, the Tribunal finds that the Commission proved that it had reconsidered the Appellant’s claim for benefit within the prescribed time limit.

[36] In a letter dated November 28, 2014, the Commission informed the Appellant that it had received new information and had reconsidered his claim for benefit commencing on April 4, 2010 because the Commission believed that incorrect reports or false statements had been made (Exhibits GD3-136 and GD3-137 of file GE-15-786).

[37] In this letter, the Commission stated:

[Translation] When we determine that incorrect reports or false or misleading statements have been made, the reconsideration period can be extended to 72 months. We believe that one or more false or misleading statements has/have been made. More specifically, you incorrectly reported or omitted to report the earnings you received from your employers Gestion de Personnel Inter-Cam Inc, Transport Rush and Gestion Personnel Prestige Inc. You also omitted to report that you had voluntarily left your employment twice, once with Personnel Inter-Cam Inc on 20/08/2010 and once with Transport Rush on 15/10/2010 (Exhibit GD3-136 of file GE-15- 786).

[38] Almost 55 months (April 2010 to November 2014) had elapsed between the time when the Appellant’s benefit period began, on April 4, 2010 (file GE-15-786) and the time when the Commission notified the Appellant that it had reconsidered his claim for benefit.

[39] The Appellant’s representative submitted that he did not make false statements concerning his voluntary leaving. He proved that the Appellant had indeed reported his voluntary leaving in his regular reports by indicating that he had ceased working for the employers Gestion de personnel Inter-Cam inc. and Transport Rush inc., but that these reports had been delayed. The representative pointed out that since the Appellant had not made false statements, the reconsideration period could not be longer than 36 months, as provided by the Act.

[40] The Tribunal pointed out that in this case, the Commission did not find that the Appellant had made false statements and did not make decisions to resulting in penalties or a notice of violation, as usually occurs in such circumstances. The Tribunal also underscores that when he completed his reports on October 26, 2010 for the period from October 3, 2010 to October 16, 2010, the Appellant had nevertheless mentioned at this time that he had stopped working for the employer Transport Rush inc. since he had voluntarily left this job more than 10 days earlier, on October 15, 2010 (Exhibits GD3-84 to GD3-91 of file GE- 15-786).

[41] The Tribunal does not consider it necessary for false or misleading statements to have been made before the Commission can exercise its right to reconsider a benefit period within the 72-month time frame, , or that such reconsideration is unnecessary because it gave a decision on the matter, or that a sanction had been applied. The Commission need only believe that such statements exist to conduct such reconsideration (Dussault, 2003 FCA 372, Pilote, A-868-97).

[42] Subsection 52(5) clearly provides that, “if, in the opinion of the Commission, a false or misleading statement or representation has been made in connection with a claim, the Commission has 72 months within which to reconsider the claim.”

[43] The Commission also made the following clarification in its arguments:

[Translation] […] if the Commission believed that the claimant had made a false or misleading statement or representation, whether such false statement or representation was made knowingly or not, the reconsideration time limit is extended to 72 months after the date on which the benefits were paid or payables […].

[44] In the letter sent to the Appellant on November 28, 2014, the Commission also stated that he had [translation]“incorrectly declared or omitted to declare” earnings he had received from his employers Gestion de personnel Inter-Cam inc., Transport Rush inc. and Gestion Personnel Prestige inc. The Appellant did not challenge this aspect. The Commission’s assessment on this issue also justified its decision to reconsider the Appellant’s claim for benefit within the 72-month time frame, whether or not the Appellant had made false or misleading statements (Dussault, 2003 FCA 372, Pilote, A- 868-97). The “mere existence or presence of a false or misleading statement suffices, to the degree that the Commission is reasonably satisfied of this fact” (Dussault, 2003 FCA 372).

[45] On the whole, the Tribunal considers that the Commission exercised its rights pursuant to s. 52 of the Act, to reconsider the Appellant’s claim for benefit within the 72-month time frame allocated to it.

[46] The Tribunal found that the Commission was justified in reconsidering the Appellant’s claim for benefits under section 52 of the Act.

[47] The appeal is without merit on this issue.

Voluntary Leaving

[48] The decision in Rena-Astronomo (A-141-97), which confirmed the principle established in Tanguay (A-1458-84) that the onus is on the claimant who voluntarily left his employment to prove there was no reasonable alternative to leaving his employment when he did, the Federal Court of Appeal (the “Court”) issued the following reminder: “The test to be applied having regard to all the circumstances is whether, on the balance of probabilities, the claimant had no reasonable alternative to immediately leaving his or her employment.”

[49] This principle was affirmed in other decisions by the Court (Peace, 2004 FCA 56, Landry, A-1210-92).

[50] Moreover, the term “just cause”, as it is used in subsections 29(c) and 30(1) of the Act, was interpreted by the Court in Tanguay v. C.E.I.C. (A-1458-84 (October 2, 1985); 68 N.R. 154) as follows:

In the context in which they are used these words are not synonymous with ‘reason’ or ‘motive’. An employee who has won a lottery or inherited a fortune may have an excellent reason for leaving his employment: he does not thereby have just cause within the meaning of s 41(1). This subsection is an important provision in an Act which creates a system of insurance against unemployment, and its language must be interpreted in accordance with the duty that ordinarily applies to any insured, not to deliberately cause the risk to occur. To be more precise, I would say that an employee who has voluntarily left his employment and has not found another has deliberately placed himself in a situation which enables him to compel third parties to pay him unemployment insurance benefits. He is only justified in acting in this way if, at the time he left, circumstances existed which excused him from thus taking the risk of causing others to bear the burden of his unemployment.

[51] The Court also confirmed that a claimant who voluntary leaves an employment has the burden of proving that there was no other reasonable alternative to leaving the employment at the time the claimant left (White, 2011 FCA 190).

[52] In this case, the Tribunal considers that the Appellant’s decision to leave his job with the employer Transport Rush inc. cannot be considered, having regard to all of the circumstances, the only reasonable alternative.

[53] The Appellant explained that he had voluntarily left his employment with his employer on October 15, 2010 because he could no longer work on call and because he wanted to find another employment with a normal work schedule.

[54] A reasonable alternative within the meaning of the Act would have been for the Appellant to continue working for Transport Rush inc. until he was able to obtain a new job that better suited his expectations, specifically in relation to his work schedule (White, 2011 FCA 190, Rena-Astronomo, A-141-97, Tanguay, A-1458-84, Peace, 2004 FCA 56, Landry, A-1210-92). He did not have just cause for leaving his employment when he did.

[55] The employer Transport Rush inc. stated that the Appellant could have continued working if he had not voluntarily left his employment.

[56] At the hearing, the Appellant’s representative stated that the Appellant had voluntarily left without just cause within the meaning of the Act and that he had no evidence to submit in this regard.

[57] In the Tribunal’s view, the Appellant did not show that there was no reasonable alternative but to leave his employment with the employer Transport Rush inc. (Rena-Astronomo, A-141-97, Tanguay, A-1458-84, Landry, A-1210-92, Peace, 2004 FCA 56, White, 2011 FCA 190).

[58] In the Tribunal's view, based on the all of the circumstances the Appellant did not have just cause to leave his employment pursuant to sections 29 and 30 of the Act.

[59] The appeal is without merit on this issue.

Allocation of earnings

[60] The Court has affirmed the principle that amounts that constitute earnings under section 35 of the Regulations must be allocated under section 36 of the Regulations (Boone et al., 2002 FCA 257).

[61] In McLaughlin (2009 FCA 365), the Court stated: “the entire income of a claimant arising out of any employment” is to be taken into account in calculating the amount to be deducted from benefits and for the purposes of section 46, “employment” is not limited to insurable employment.

[62] In the present case, the Commission informed the Appellant, in a letter dated November 28, 2014, that it had allocated the earning he received from the employers Gestion de personnel Inter-Cam inc., Transport Rush inc. et Gestion Personnel Prestige inc. for the several weeks of his benefit periods in question, namely, the weeks spanning the period of the week commending August 8, 2010 to the week commencing August 7, 2011 (Exhibits GD3-134 and GD3-135 of file GE-15-786).

[63] The evidence on file shows that the Appellant worked for the employer Gestion de personnel Inter-Cam inc., from August 13, 2010 to August 20, 2010, that he performed 16 hours of insurable employment and that he received money by way of salary from this employer (Exhibit GD3-19 of file GE-15-786).

[64] The evidence also shows that the Appellant worked for the employer Transport Rush inc. during the period from June 15, 2010 to October 15, 2010 and that he received monies from this employer by way of a salary for the weeks starting on August 22, 2010, August 29, 2010, September 5, 2010, September 19, 2010 and October 3, 2010. The Appellant performed 238 hours of work for this employer (Exhibits GD3-20 and GD3-24 to GD3-34 of file GE-15-786).

[65] The evidence also shows that the Appellant worked for the employer Gestion personnel Prestige inc. during the period from June 26, 2011 to November 25, 2011, that he performed 992 hours of insurable earnings, and that he received money by way of a salary from this employer (Exhibit GD3-21 of file GE-15-786).

[66] The Appellant did not dispute the amounts in question. He explained that he did not properly report the amounts he received from these employers because the amounts had not been reported in the proper weeks, namely, in the periods in which the work was performed or in the weeks when the services were delivered. He said that there was an « offset » between the time he worked the hours and the time when he reported the amounts he had received for these hours.

[67] The Tribunal considers that the monies paid to the Appellant by the employers Gestion de personnel Inter-Cam inc., Transport Rush inc. and Gestion personnel Prestige inc., clearly constitute earnings under s. 35 of the Regulations, since these amounts were paid to him by way of salary.

[68] Subsection 35(2) of the Regulations states:

[…] the earnings to be taken into account for the purpose of determining whether an interruption of earnings under section 14 has occurred and the amount to be deducted from benefits payable under section 19, subsection 21(3), 22(5), 152.03(3) or 152.04(4) or section 152.18 of the Act, and to be taken into account for the purposes of sections 45 and 46 of the Act, are the entire income of a claimant arising out of any employment […]

[69] Herein, the monies that the Appellant received from these employers were the outcome of his employment with them. These are amounts from employment not covered by the exceptions set out in subsection 35(7) of the Regulations.

[70] In the Tribunal’s view, the total amount paid to the Appellant, as salary, while he worked for the employers in question in his benefit period starting on April 4, 2010 (file GE-15-786), must be allocated pursuant to s. 36 of the Regulations.

[71] The Tribunal cannot override the principle that amounts that constitute earnings under section 35 of the Regulations must be allocated under section 36 of the Regulations (Boone et al., 2002 FCA 257).

[72] In the Tribunal’s view, the Commission proved, based on the documents and information it had been able to obtain from the employers concerned by the Appellant’s benefit period that the earnings he received as salary had to be allocated.

[73] Subsection 36(4) of the Regulations clearly states: "Earnings that are payable to a claimant under a contract of employment for the performance of services shall be allocated to the period in which the services were performed."

[74] The Appellant and his representative did not present any new facts or grounds that might have led the Tribunal to conclude that the earnings the Appellant received as a salary from his employer should have resulted in a different allocation than the one established by the Commission.

[75] Relying on the case law mentioned earlier, the Tribunal finds that the earnings paid to the Appellant were allocated in accordance with the provisions of ss. 35 and 36 of the Regulations.

[76] The appeal is without merit on this issue.

Conclusion

[77] The appeal is dismissed on the three issues brought before the Tribunal.