Cité de la Santé de Laval v. Canada (Minister of National Revenue)

Cité de la Santé de Laval v. Canada (Minister of National Revenue) Court (s) Database Federal Court of Appeal Decisions Date 2004-03-23 Neutral citation 2004 FCA 119 File numbers A-661-02 Notes Digest Decision Content Date: 20040323 Docket: A-661-02 Citation: 2004 FCA 119 CORAM : DÉCARY J.A. LÉTOURNEAUJ.A. NADON J.A. BETWEEN: CITÉ DE LA SANTÉ DE LAVAL Applicant and MINISTER OF NATIONAL REVENUE and MARIE-NOËL LACHAMBRE and ANNIE TRUDEL Respondents Hearing held at Montréal, Quebec, on March 8, 2004. Judgment rendered at Ottawa, Ontario, on March 23, 2004. REASONS FOR JUDGMENT: LÉTOURNEAU J.A. CONCURRED IN BY: DÉCARY J.A. NADON J.A. Date: 20040323 Docket: A-661-02 Citation: 2004 FCA 119 CORAM : DÉCARY J.A. LÉTOURNEAU J.A. NADON J.A. BETWEEN: CITÉ DE LA SANTÉ DE LAVAL Applicant and MINISTER OF NATIONAL REVENUE and MARIE-NOËL LACHAMBRE and ANNIE TRUDEL Respondents REASONS FOR JUDGMENT LÉTOURNEAU J.A. [1] Was the Tax Court of Canada deputy judge (the judge) right to rule that the amounts advanced by the applicant to two of its employees, but reimbursed by the Commission de la santé et de la sécurité du travail (CSST), for periods of reassignment to precautionary cessation of work, were insurable earnings within the meaning of the Employment Insurance Act, S.C. 1996, c. 23 (the Act)? See Cité de la Santé de Laval v. Canada (Minister of National Revenue - M.N.R.), [2002] T.C.J. No. 575. Facts and proceedings [2] As will be seen in the course of these reasons, the question is not a new one, as the facts giving rise to the case at bar recur throughout Canada. They involve the relationship between the Act, public legislative income replacement indemnity plans and, frequently, collective labour agreements with disparate language. In view of their importance and frequency, one would have thought that Parliament would have adopted a clear legislative policy of harmonizing its Act with public plans, a policy making it possible to apply its Act uniformly, rather than relying on the uncertainties of piecemeal, lengthy and costly arbitration, itself based on provisions or clauses resulting from different drafting standards. Unfortunately, that is not the case. [3] Ms. Lachambre and Ms. Trudel were two nurses employed by the applicant. Their working conditions were governed by a collective agreement (the agreement) concluded between the Comité patronal de négociation du secteur de la santé et des services sociaux and the Union québécoise des infirmières et infirmiers on June 15, 2000. [4] The employees were pregnant and made use of section III of the agreement, dealing with special leave for pregnancy and breast-feeding: applicant's record, page 158. Clause 20.21 allows a pregnant employee to ask her employer for assignment to another position, which is less demanding than her usual position. The "precautionary cessation of work" application must be accompanied by a medical certificate supporting it. There will then be entitlement to special leave, which begins immediately if the assignment is not made by the employer at once. Unless an assignment terminating it is made after the fact, the special leave will end for the pregnant employee on the day the child is delivered. [5] Also under clause 20.21, special leave has this special feature: the employee is then subject, as to the amounts she receives, to the provisions of the Act respecting Occupational Health and Safety, R.S.Q., c. S-2.1 (AOHS), relating to the precautionary cessation of work by the pregnant worker. I will return to these provisions in analyzing the subject decision. [6] In the case at bar, the applicant promptly reassigned Ms. Lachambre. The precautionary cessation of work application was made on September 8, 2000, and the reassignment on the 11th of that month. Accordingly, Ms. Lachambre was on precautionary cessation of work for three days before being assigned full time to the daily floating staff: see applicant's record, vol. 1, page 32 and vol. 2, page 358. This assignment of Ms. Lachambre ended on January 23, 2001, the date on which she was on precautionary cessation of work, without a possible assignment because of her pregnancy, until the date of delivery. The latter occurred on March 28, 2001. [7] Ms. Trudel was a part-time employee. Her reassignment reflected her status and the details were determined in accordance with her average time worked before her precautionary cessation of work: three hours a day, five days a week. However, this reassignment did not occur until November 20, 2000, as Ms. Trudel was entitled to vacation and made use of sick leave: applicant's record, pages 416-417. In the course of the pregnancy, Ms. Trudel's assignment was again changed: three and a half hours a day for five days over two weeks. It ended on January 10, 2001, and Ms. Trudel was then on precautionary cessation of work until the date of her delivery, on March 21, 2001. [8] The evidence was that the two employees reported to their work units and were assigned duties, if any were available. Otherwise, they returned home. Sometimes, according to the testimony of the applicant's representative, they could also be told that they were exempted from reporting the following day, as the plaintiff was already able to indicate that they could not be given any duties: applicant's record, page 431. However, Ms. Lachambre said that in her case she had to report each scheduled working day as her presence was required by the nursing staff coordinator at the hospital. The waiting period to see whether she would be assigned duties might last from 15 to 45 minutes: ibid., pages 495-498. [9] The amounts at issue are minimal: $1,769.94 in the case of Ms. Lachambre and $1,491.34 for Ms. Trudel. They correspond to the days on which both employees, though generally assigned to less strenuous duties because of their pregnancy, did not actually do any work, either because the applicant had no work to give them or because no position in keeping with their limitations was available: see applicant's record, pages 413 and 419, testimony of Mr. Laforest. Under the agreement, these days were regarded as special leave. The two employees then received an income replacement indemnity pursuant to the AOHS and the Act respecting Industrial Accidents and Occupational Diseases, R.S.Q., c. A-3.001 (AIAOD). The money was advanced by the applicant pursuant to clause 20.21 of the agreement, and as already mentioned it was subsequently reimbursed by the CSST: applicant's record, pages 414-415 and 419-442. The income replacement indemnity advanced by the applicant represented 90% of the net salary: ibid., page 425. Under section 36 of the AOHS, a worker is entitled for the first five working days of her cessation of work to be paid by her employer at her regular salary rate. The entitlement to the income replacement indemnity applies at the end of that period. This provision of section 36 applies to a pregnant worker by virtue of section 42. [10] At the hearing of the application at bar, it was mentioned that under the Act respecting Labour Standards, R.S.Q., c. N-1.1, section 58, an employee who reports to the workplace at the request of an employer and works less than three consecutive hours will be entitled to an indemnity equal to three hours of the regular hourly salary. In the case at bar, the applicant's representative said in testimony before the judge that this provision had no impact on the case at bar, since in any case both employees received 90% of their net salary as an indemnity for each day on which they were on precautionary cessation of work, including the days when they reported to the workplace and were not assigned to any duties: applicant's record, pages 474-475 and 477-498. I agree that this is not a real problem in the case at bar. [11] The applicant challenged the judge's decision by judicial review. The case assumed a new dimension in this Court for the following two reasons. [12] First, one of the two employees, Ms. Trudel, was not represented and did not testify at the hearing before the judge. Both employees appeared by counsel in this Court and put forward a legal approach that does not appear to have been mentioned, at least not as clearly, in the earlier hearing. I will return to this below. Secondly, the Minister of National Revenue (the Minister), who had argued before the judge that the amounts paid for the periods at issue constituted insurable earnings, changed his opinion and supported the applicant's argument. Like the latter, he asserted that the judge had erred in concluding that these were insurable earnings. Accordingly, it is against that background that the question comes to this Court. To assist in clarification, a short summary of the impugned decision and the parties' arguments is necessary. Judge's decision and parties' arguments [13] After stating the question at issue, the judge proceeded to list certain decisions on the point in this Court and in his Court: Rousseau v. Canada (Minister of National Revenue - M.N.R.), [1996] F.C.J. No. 1346; Boulianne v. Canada (Minister of National Revenue - M.N.R.), [1997] T.C.J. No. 19; Nanaimo Regional General Hospital v. Canada (Minister of National Revenue - M.N.R.), [1997] T.C.J. No. 39, reversed by [1997] F.C.J. No. 1706; Gagné v. Canada (Minister of National Revenue - M.N.R.), [1998] T.C.J. No. 12; Biron v. Canada (Minister of National Revenue - M.N.R.), [1998] T.C.J. No. 76; Canada (Attorney General) v. Sirois, [1999] F.C.J. No. 523; and Université Laval v. Canada (Minister of National Revenue - M.N.R.), [2002] F.C.J. No. 660. [14] He cited and joined lengthy extracts from several of those decisions, finally concluding as follows at paragraphs 23 to 25 the reasons for his decision: [TRANSLATION] This Court accepted the relevance of the Minister's arguments that the case did not concern an indemnity paid by the appellant, since the workers were still able to work. They were not ill: they were pregnant. This Court also approves the arguments by the intervener that Université Laval, supra, held that working is not necessary to support the conclusion that this was an insurable payment, and that a fortiori this conclusion is justified in the case at bar since work was in fact done. When the facts are analyzed in terms of the collective agreement, the legislation and the case law, this Court has no doubt that the amounts of money paid to the workers by the appellant for this "special leave" represent insurable amounts within the meaning of the Act. [15] It appeared from these three paragraphs that his conclusion was based on the fact that both employees were available, they were capable of doing work, work was in fact done and the amounts at issue paid for the special leave represented insurable earnings even if no work was done. [16] The Minister and the applicant agreed that the amounts in issue did not constitute insurable earnings. The Minister has now come to this conclusion in his amended memorandum of fact and law because the amounts were paid as loans or advances for which a repayment procedure was set out in the agreement, the payer of this money being the CSST and not the employer. [17] The applicant put forward several arguments in support of its contention: the fact that no work was done for the special leave days at issue, the fact that in legal terms the amounts paid were an income replacement indemnity, not earnings, and the fact that these amounts were not paid by the employer. [18] Counsel for the two employees stressed the fact that, as the judge found, her two clients were able to work and it is not necessary for services to be rendered in order for the amounts paid to be insurable earnings. He submitted that the amounts were paid by the employer and so constituted remuneration by the employer. Finally, and this is the argument he developed at the hearing at greatest length, and on which he spent a lot of time, both employees were assigned to duties by the employer. In Ms. Lachambre's case, that assignment was full time. Accordingly, she was employed full time so that the amounts received by her were earnings for that assignment, even if no work was actually done. The same was true for Ms. Trudel, in her assignment representing her status as a part-time employee. In short, without saying so expressly, counsel for the two employees contended that it was not their fault if, when they had been duly assigned to units, the employer was unable to provide them with work on the days in question. Analysis of judge's decision [19] Before proceeding to analyze the judge's decision, I believe it is important to clear up a certain ambiguity which appears to have surrounded the discussion from the outset. [20] The discussion concerned the concept of assignment of the two employees, which was determined by their status in the business and their respective physical conditions. Ms. Lachambre was assigned to the floating staff full time, but that does not mean she worked full time. Ms. Trudel was assigned to the preadmission clinic with a part-time schedule that was altered by letter on December 6, 2000. A distinction must be made between a general assignment to a position or work unit and a special or daily assignment to duties in that position or that unit. [21] When pressed by questions from Ms. Lachambre's counsel before the judge as to the nature of the employer/employee relationship existing in this context, the applicant's representative in my opinion ably summarized the legal nature of that relationship when, at page 43 of the applicant's record, he said: [TRANSLATION] Q. It is because the aspect of reimbursement by the CSST, that is one aspect. Now the way you are going to manage her assignments and work, that is another one, and that is what the Court is concerned with here. The question of reimbursement _ the Court may determine whether this is what is conclusive, but what matters to us, and this is what I am trying to understand, is the nature of the relationship between the employee and employer at that time. It appears to be a nature that was variable and that varied daily. A. Well, the relationship is always the same, it is an employment relationship with a person who is entitled to be assigned, but who is also entitled to be on precautionary cessation of work, if you do not have assignments that ensure safety on account of her pregnant condition. She has these two rights. She both has the right to work full time, to a full-time assignment, and she has the right that if the assignment you have involves danger, she has the right to be on precautionary cessation of work. Q. Hmm. A. So she has these rights, and that is exactly the situation in which Ms. Lachambre was. [My emphasis.] In short, when the applicant was unable to provide its two employees with work that was consistent with the safety requirements imposed by their pregnancies, the two employees made use of their entitlement to special leave under their agreement, which corresponded to precautionary cessation of work under the AOHS: ibid., page 482. This right was exercised on a daily basis as authorized by clause 20.21 of the agreement, depending on the availability of work, in keeping with a full-time assignment for Ms. Lachambre and a part-time one for Ms. Trudel. [22] The question of the two employees' entitlement to the income replacement indemnity was decided by the CSST and the merits of that decision are not before the Court. In other words, it was up to the CSST to determine under its enabling legislation whether the two employees had exercised a right to precautionary cessation of work resulting in a replacement indemnity. The amounts are not at issue, nor is the fact that the CSST reimbursed the applicant. There is also no issue as to the amounts paid by the applicant for the first five days before the precautionary cessation of work right could be exercised. The Court is only concerned with the following question: did the amounts initially paid by the employer to the two employees on precautionary cessation of work, and subsequently reimbursed by a third party insurer (the CSST), constitute insurable earnings? [23] With respect, I believe that the short reasons given by the judge in support of his conclusion that these were insurable earnings do not support the conclusion. [24] First, I think there is no question that both employees were capable of doing some work. However, that conclusion is of no assistance in determining the legal nature of the amounts they received. Indeed, it completely ignores the existence of a right to precautionary cessation conferred on the two employees, their exercise of that right and the legal impact which that exercise could have on the nature and status of the amounts paid as a result of it. In short, the two employees' availability for and capacity to perform work are still relevant facts, but they are not really helpful in deciding the point at issue. [25] Secondly, the judge relied as justification on the fact that work was actually done in the case at bar. This conclusion by the judge is partly right and partly wrong. It is true that the two employees did do work when duties corresponding to their physical condition could be assigned to them. However, they were paid by the employer for these services and the insurability of the amounts is not at issue. What is at issue is the amounts paid for special leave days. That is where the mistake occurs: no work was done on those days because no appropriate duties were available. Accordingly, if one considers the correct portion of the judge's conclusion that work was done, it is not relevant to the point at issue and is of absolutely no assistance in deciding this question. If one considers instead the part that was wrong, we have to recognize that it cannot support a conclusion that the amounts paid were insurable earnings because work was done. [26] Further, this ruling by the judge also ignores the exercise of the right to precautionary cessation by the two employees and the legal consequences resulting from that. [27] Finally, the judge relied on Université Laval, supra, in concluding that earnings may be insurable even when no work is done. It is true that, depending on the circumstances, earnings may be insurable earnings even when work is not done. However, the reverse is not true. The fact that work was not done is not a basis for concluding, as the judge appears to have done here, that these were insurable earnings. In other words, the lack of work being done in the case at bar only raises the question of the insurability of the amounts paid, it does not provide an answer. [28] Subsection 2(1) of the Act defines insurable earnings as "the total amount of the earnings, as determined in accordance with Part IV, that an insured person has from insurable employment". Specifically, paragraph 2(1)(a) of the Insurable Earnings and Collection of Premiums Regulations (the Regulations) states: 2. (1) For the purposes of the definition "insurable earnings" in subsection 2(1) of the Act and for the purposes of these Regulations, the total amount of earnings that an insured person has from insurable employment is (a) the total of all amounts, whether wholly or partly pecuniary, received or enjoyed by the insured person that are paid to the person by the person's employer in respect of that employment, and 2. (1) Pour l'application de la définition de « rémunération assurable » au paragraphe 2(1) de la Loi et pour l'application du présent règlement, le total de la rémunération d'un assuré provenant de tout emploi assurable correspond à l'ensemble des montants suivants : a) le montant total, entièrement ou partiellement en espèces, que l'assuré reçoit ou dont il bénéficie et qui lui est versé par l'employeur à l'égard de cet emploi . . . (My emphasis.) [29] In its ordinary meaning "earnings", regardless of whether they are insurable, refers to remuneration, salary, income or money received for a service or work: Le Petit Robert, Dictionnaire de la langue française, page 2160. Section 36 of the AOHS deals with the earnings of an employee in the usual sense and the replacement indemnity when the employee exercises her precautionary cessation of work right and is entitled to the indemnity: Remuneration. 36. A worker is entitled, for the first five working days of his work stoppage, to be remunerated at his regular wage rate and to also receive from his employer, where section 42.11 or 1019.4 of the Taxation Act (chapter I-3) applies to the worker, remuneration equal to the aggregate of the tips that could reasonably be considered to be attributable to those days and that the worker would have reported to his employer under that section 1019.4 or that his employer would have attributed to him under that section 42.11. Income replacement indemnity. At the end of that period, the worker is entitled to the income replacement indemnity to which he would be entitled under the Act respecting industrial accidents and occupational diseases (chapter A-3.001) if he then became unable to carry on his employment by reason of an employment injury within the meaning of that Act. Applicable Act. To decide a case under this section, the Commission shall apply the Act respecting industrial accidents and occupational diseases to the extent that it is consistent with this Act; its decision may be the object of an application for review and contestation before the Commission des lésions professionnelles in accordance with this Act. [30] The AOHS establishes a public group plan to indemnify persons who, because of their pregnancy or breast-feeding, are either unable to do their usual work or as a precaution are relieved of their obligations to do any work whatever. It therefore confers significant rights on those individuals. First, it preserves their employed status, and consequently the insurability associated with that employment. Then, it exempts them wholly or partly from performing work. Finally, it pays them an income replacement indemnity which the employer would not legally be required to pay if no work was done. The cost of paying the indemnities is borne by employers in general: see section 45 AOHS. [31] Beyond these public plans, and to avoid employees making use of the plan being penalized by inevitable administrative delays, a practical reality has arisen: as a result of negotiations the employer in many cases undertakes, by collective agreements, interim obligations to pay the income replacement indemnities owed by public plans. This has the result of creating confusion and obscuring, or even sometimes obliterating, the purposes and aims sought by these public indemnity plans. I will give two examples of this. However, I will say at once that it seems clear these collective agreements, and the resulting obligations, were neither intended to alter the nature and universality of the public and collective insurance plans and income replacement indemnity plans in the event of precautionary cessation of work by the pregnant individual, nor did they have that consequence. [32] The issue in the case at bar is one example of this confusion, resulting from the fact that, as it was bound to do by the agreement, the employer paid the amounts owed by the CSST. For example, when Ms. Lachambre was testifying one of the judge's concerns was whether the cheque the latter had received came from the CSST or from the employer: applicant's record, pages 502-503. In cross-examination and reexamination, questions also sought to establish whether these were regular pay cheques, whether there was any indication on the cheques that the amounts came from the CSST, whether the employee received a statement from the CSST, whether that statement was issued at the same time as the cheques and whether the cheques distinguished between the amounts coming from the employer as salary and those from the CSST as indemnity: ibid., pages 504-505. In fact, the witness confirmed that the cheques identified the amounts from the employer for days worked and those that were or would be paid by the CSST for precautionary cessation of work. [33] In Attorney General of Canada v. Quinlan, A-1206-92, February 28, 1994 (F.C.A.), the discussion also dealt in large part with the fact that the cheques, which included salary insurance, were issued by the employer in accordance with the collective agreement. I will return to that decision below. [34] All these matters, taken together with those involved in the interpretation of the collective agreements (was this a loan, did the collective agreement provide a reimbursement procedure, did the employer undertake to make payments and so on) tend to relegate if not to oblivion, at least to the back burner, the nature of the group plan, that of the amounts paid and, as Judge Lamarre Proulx said in Régie Intermunicipale de Traitement de l'eau potable, Saint-Romuald/Saint-Jean v. Canada (Minister of National Revenue - M.N.R.), [1997] T.C.J. No. 744, at paragraph 19, the purpose and aim of the payments. [35] These four matters, which because of their essential nature and importance are at the very heart of a solution to the question, lead me to conclude that in the case at bar the amounts at issue were not insurable earnings within the meaning of the Act. [36] To begin with, the group plan established by the AOHS is in legal terms a legislative insurance plan covering indemnities for the pregnant person, which is not part of the contract of employment concluded between the applicant and its employees, and which as already mentioned is financed by contributions from employers: see by analogy the similar classification by the Supreme Court of Canada of workmen's compensation plans in Bell Canada v. Québec (Commission de la santé et de la sécurité du travail), [1988] 1 S.C.R. 749, at paragraph 294. By its universal and public nature, therefore, the plan differs from private insurance plans or special insurance plans that are found among employers, and in certain cases make the employer the insurer: see Université Laval, supra; Attorney General of Canada v. National Bank of Canada, 2003 FCA 242. In my humble opinion, the AOHS clearly indicates that the CSST is acting as a third party insurer for pregnant employees who exercise the right to precautionary cessation of work. [37] Second, for income from an employer to be earnings, it must have been paid pursuant to a labour or employment contract: see Wong v. M.N.R., 12 C.C.E.L. (2d) 257; M.N.R. v. Visan, [1983] 1 F.C. 820 (F.C.A.); Biron v. Canada (Minister of National Revenue - M.N.R.), [1998] T.C.J. No. 76. The amounts paid by the CSST here were not paid pursuant to a contract of employment between the employees and the CSST. [38] Further, the amounts from the CSST were legally classified by the AOHS as an "income replacement indemnity". They were not in the nature of earnings. They did not correspond to services. To paraphrase Urie J., speaking for this Court in Visan, supra, at 829, they were at the opposite pole from payments of that kind as their purpose was to indemnify employees in part for the loss of payments that would have been made for services they would have rendered if they had not been prevented from doing so by their pregnancy: see also Brière v. Canada (Minister of National Revenue - M.N.R.), [1998] T.C.J. No. 111. [39] Finally, and I will not dwell on the point at any length since I have already amply covered it, the purpose and aim of the payments contemplated by the AOHS, and made by the CSST, are to indemnify a pregnant employee for loss of income she would otherwise have been entitled to, a loss which would have resulted in a loss of earnings if there were no income replacement indemnity. [40] Before concluding, I must look at two judgments of this Court which counsel for the two employees cited in support of his arguments: Quinlan, supra, and Nanaimo Regional General Hospital v. Canada (Minister of National Revenue - M.N.R.), [1997] F.C.J. No. 1706. [41] The facts of Quinlan were special and clearly different from those at issue here. They involved the amounts of salary insurance paid under a private contractual salary insurance plan. The case did not involve a public legislative plan. Additionally, working relations between the employer and its employees were governed by a clause resulting from an agreement between the parties by which [TRANSLATION] "any employee participating in the salary insurance plan will continue to receive his or her full salary and hand over any salary insurance indemnity cheque to the O.T.E.U. as reimbursement". There is nothing of this kind in the case at bar, although the facts of Quinlan make clear the need for a policy of harmonization on the point and the possibility of differential treatment in terms of the legal consequences relating to insurability of earnings, if the parties can determine the nature, purpose and aim of insurance payments by agreement. The scope of Quinlan must be limited to its particular facts. [42] This Court's judgment in Nanaimo was limited to saying that the facts at issue there could not be distinguished from those in Quinlan. The Court, which had before it a question involving indemnity payments by the British Columbia Workers' Compensation Board (the Board) for an industrial accident, does not appear to have realized that the insurance plan in Quinlan was not a public legislative insurance plan as in the case at bar. [43] Additionally, on the facts in Nanaimo the payments made by the Board represented 75% of the employee's income. However, the employer paid the difference, so that the employee received the equivalent of his or her usual salary. It is in these circumstances that the determination as to the nature of the payments made by the Board was raised. [44] Further, the judgment by the Supreme Court in Bell Canada, which describes the legal nature of such an insurance plan, and hence the legal consequences resulting from it, does not appear to have been drawn to the Court's attention. I referred to this earlier, but I feel it is worth citing the passage in question, which deals specifically with workers' compensation indemnities. At paragraph 294, the Supreme Court wrote: In general, workers' compensation plans, whether in British Columbia, Quebec or the plans in all or most of the provinces, are statutory insurance plans of no-fault collective liability, which replace the former systems of individual civil liability based on fault. They are generally financed, at least in part, by contributions from employers . . . Their main purpose is compensation and thus more or less a form of final exhaustion of remedies . . . Although their purpose is to compensate workers they are not part of the contract of employment, they are not labour relations schemes and they do not constitute working conditions: they do not intervene to compensate workers until after their health or safety has been affected. They also do not impinge on the management or operation of undertakings. (My emphasis.) [45] Finally, some confusion may have resulted from the fact that the cheques in the full amount came from the employer and the latter did not regard the employee as being on leave, but as in regular service. [46] I feel sure that if the Court had realized the significant factual differences between the two cases, and if its attention had been directed to the Supreme Court judgment, its own decision would have been different. [47] In any case, since that decision which is already over six years old, the case law has evolved and amounts paid as income replacement indemnities under legislative insurance plans are, for more than one reason, payments by a third party insurer that do not constitute insurable earnings. [48] For these reasons, I would allow the application for judicial review, without costs in the circumstances, I would set aside the decision of the Tax Court of Canada deputy judge and I would refer the matter back to the Chief Justice of that Court, or to a person appointed by him, to be again decided on the basis that the amounts paid by the CSST for the periods at issue, following the precautionary cessation of work by the two employees concerned, are not insurable earnings within the meaning of the Employment Insurance Act. "Gilles Létourneau" J.A. "I concur Robert Décary J.A." "I concur Marc Nadon J.A." Certified true translation Suzanne M. Gauthier, C Tr, LLL FEDERAL COURT OF APPEAL SOLICITORS OF RECORD DOCKET: A-661-02 STYLE OF CAUSE: CITÉ DE LA SANTÉ DE LAVAL v. MINISTER OF NATIONAL REVENUE et al. PLACE OF HEARING: Montréal, Quebec DATE OF HEARING: March 8, 2004 REASONS FOR JUDGMENT BY: LÉTOURNEAU J.A. CONCURRED IN BY: DÉCARY J.A. NADON J.A. DATED: March 23, 2004 APPEARANCES: Pierre St-Onge FOR THE APPLICANT Nathalie Lessard FOR THE DEFENDANT SOLICITORS OF RECORD: Monette, Barakett et associés Montréal, Quebec FOR THE APPLICANT Morris Rosenberg Deputy Attorney General of Canada Montréal, Quebec FOR THE RESPONDENT