A-856-77
Attorney General of Canada (Applicant)
v.
Evelyn McCombe (Respondent)
Court of Appeal, Jackett C.J., Heald J. and Kelly
D.J.—Vancouver, March 15, 1978.
Judicial review — Unemployment insurance — Earnings
Umpire finding income of respondent, a pari mutuel cashier, to
be her gross income less amount deducted for cash shortages
— Not shown that Umpire's findings not open to him —
Application dismissed — Unemployment Insurance Act, 1971,
S.C. 1970-71-72, c. 48, s. 26(2) — Federal Court Act, R.S.C.
1970 (2nd Supp.), c. 10, s. 28.
APPLICATION for judicial review.
COUNSEL:
Jean-Marc Aubry for applicant.
W. R. Martin for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
McTaggart, Ellis & Company, Vancouver,
for respondent.
The following are the reasons for judgment
delivered orally in English by
JACKETT C.J.: This is a section 28 application
by the Attorney General of Canada to set aside a
decision rendered by an Umpire under the Unem
ployment Insurance Act, 1971, S.C. 1970-71-72, c.
48, with reference to a decision of a Board of
Referees on an appeal by the respondent.
The sole question involved relates to the amount
of the respondent's "earnings" during the relevant
period to which section 26(2) of that Act applies.
That subsection reads:
26....
(2) If a claimant has earnings in respect of any time that
falls in a week of unemployment, that is not in his waiting
period, the amount of such earnings that is in excess of an
amount equal to twenty-five per cent of the claimant's weekly
benefit rate shall be deducted from the benefit payable to the
claimant in that week.
The undisputed facts concerning the earnings in
question are that what the respondent in fact
received from her employment as a pari mutuel
cashier was a fixed amount per shift less the
amount of "cash shortages" being the difference
between the amount of money shown as delivered
to her and the amount of money shown as having
been paid out by her pursuant to valid "tickets" or
otherwise accounted for by her. It is not disputed
that the circumstances under which she worked
were such that such shortages would normally
occur for reasons unassociated with negligence or
wrong-doing.
No direct evidence is to be found in the material
on which this section 28 application is based as to
the terms of the contract of employment pursuant
to which such deductions were made nor does it
appear that there was any such direct evidence
before the Umpire or the Board of Referees. The
Umpire made the following finding:
I am satisfied that, in this case, the claimant's income was her
gross income less the amount deducted for shortages; that is
what her employer agreed to pay her and that is what she
agreed to accept.
It has not been shown that that finding was not
open to the Umpire on the material in this section
28 case or that there was any other material before
him that was inconsistent with it.
In effect, as I understand it, the Umpire's find
ing is that the respondent's remuneration (earn-
ings) under her contract of employment for a shift
was the fixed amount less any cash shortages.
This does not mean of course that "earnings"
for the purpose of section 26(2) do not include
amounts that are deductible by statute for pay
ment over to the government in respect of a debt
due to the government, as, for example, under the
Income Tax Act. Nor does it mean that such
"earnings" do not include amounts deductible by
the employer under some arrangement between
the employer and employee for application on
some indebtedness of the employee to the employer
or for payment to a third person.'
In my opinion the section 28 application should
be dismissed.
* * *
HEALD J. concurred.
* * *
KELLY D.J. concurred.
' Compare Trinidad Lake Asphalt Operating Company,
Limited v. Commissioners of Income Tax for Trinidad and
Tobago [1945] A.C. 1 per Lord Wright at pp. 10 et seq.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.