The appellant, which operated a restaurant, paid “due-backs” to its servers representing the tips on sales processed on credit and debit cards (“electronic tips”) minus deductions made by it as a processing charge and amounts to be paid to kitchen staff, and further deductions based on the amount of cash sales collected by the servers. Monaghan JA indicated (at para. 52) that the question of whether a due-back constituted pensionable salary and wages for purposes of the Canada Pension Plan Act, or insurable earnings for purposes of the Employment Insurance Act, turned on the “question … whether, based on the relevant facts in the case, the amount in question is paid by the employer to the employee in respect of their employment.”
In confirming that the due-backs were amounts in respect of the servers’ employment, she referred to the broad meaning accorded to “in respect of in Nowegijick, and then stated (at paras. 25-26):
But for their employment with the appellant, the servers would not have received the due-backs from the appellant.
Moreover, nothing in the legislation suggests that, to qualify as an amount in respect of employment, the amount must be calculated in a particular way, or with reference to hours worked or sales or any other measurable factor. …
Furthermore, the due-backs were paid by the appellant to the servers (para. 37):
[T]here is no dispute the electronic tips came into possession of the appellant or that the appellant transferred the due-back, representing a portion of those electronic tips, to the servers.