Canada ( Attorney General ) v. Fennimore
A-394-92
Marceau J.A.
15/6/93
5 pp.
Application to review Umpire's decision vacation pay not part of earnings -- Respondent employed as salesman from January to November 1990 -- Earning guaranteed weekly commission for first six months -- Thereafter receiving weekly advances of same amount with understanding, based on employer's practice, monies advanced in excess of commissions would not be subject of recovery by employer except that on termination of employment any outstanding monies, including vacation pay would be applied against shortfall on advances -- At termination respondent received no remuneration, entitled to none, under no obligation to repay any shortfall -- Record of employment indicating payment of vacation pay -- Commission allocating vacation pay to earnings pursuant to Unemployment Insurance Regulations, ss. 57, 58 delaying commencement of payment of benefits -- Board of Referees holding as never actually paid vacation pay could not be considered as earnings -- Umpire holding claimant's income derived from net commisssions earned -- To extent never earned, vacation pay not forming part of earnings for purposes of applying Regulations, s. 58(9) -- S. 58(9) providing all earnings paid or payable to claimant by reason of lay-off or separation from employment shall be allocated -- Appeal dismissed -- Amount identified in record of employment as vacation pay not amount paid or payable by reason of lay-off -- Although payment may be made by way of set-off against debt, legal set-off requiring debts on both sides -- Advances in excess of earned commissions not creating indebtedness since employee not required to repay these amounts and not entitled thereto -- Unemployment Insurance Regulations, C.R.C., c. 1576, s. 58(9) (as am. by SOR/89-550, s. 1).