CUB 7842
JUDGMENT OF THE FEDERAL COURT OF APPEAL
Date:
April 9, 1984
Docket:
A-181-83
Umpire's Decision:
CUB 7842
"TRANSLATION"
CORAM :
PRATTE
LE DAIN
HUGESSEN JJ
BETWEEN :
ROGER IMBEAULT "ET AL", (see appendix),
applicants,
- v. -
UNEMPLOYMENT INSURANCE COMMISSION,
- and -
MARCEAU J,
respondents.
Hearing held at Québec on Wednesday, February 15, 1984.
CORRESPONDING FEDERAL COURT DECISION: A-182-83
CORRESPONDING FEDERAL COURT DECISION: A-183-83
CORRESPONDING FEDERAL COURT DECISION: A-1052-82
Application for leave to appeal dismissed by the Supreme Court of Canada:
Imbeault v. Canada (AG), [1984] S.C.C., No. 229, File no. 18801
REASONS FOR JUDGMENT
(Judgment rendered at Ottawa
on Monday, April 9, 1984)
PRATTE J:
Applicants are asking the Court to set aside the decision of an umpire on an appeal pursuant to Part V of the Unemployment Insurance Act, 1971.
This case raises two quite separate questions: one concerns the way in which the amount of $150.00 received by certain applicants after being separated from their employment should be allocated, and the other, a much more important question, concerns the interpretation that must be given to s 44 of the Act.
Applicants were employed by the Quebec North Shore Limitée paper company when, on July 14, 1980, they lost their employment due to a labour dispute. This dispute was settled on May 10, 1981, and as a condition of this settlement, the employer paid all its employees whose names appeared on its pay list on June 28, 1980 a bonus of $150.00. Those of the applicants affected by this first question were not recalled to work at the end of the dispute: they accordingly claimed unemployment insurance benefits, so that the sum of $150.00 which was paid to them after the end of the dispute had to be allocated. The Commission allocated this amount in the manner provided for by s 58(16) of the Unemployment Insurance Regulations. This method was approved by the board of referees and by the umpire. Applicants argued that these decisions are incorrect and that the amount of $150.00 should have been allocated as provided for by s 58(18).
In order to understand the case the applicable provisions of the Regulations must be borne in mind:
58. (9) Earnings paid or payable as,
(a) bonuses or gratuities, other than as a result of a lay-off or separation from employment, and
(b) wages in lieu of notice,
at the time of a claimant's lay-off or separation from employment or prior thereto in contemplation of such lay-off or separation, shall, subject to this section, be allocated to the period for which those earnings are payable.
(16) Where the earnings described in subsections (9) and (14) are paid after a claimant's lay-off or separation occurs and have not been allocated pursuant to subsections (9), (10), (13), (14) or (15); those earnings shall be allocated to such number of consecutive weeks, beginning with the week in which those earnings are paid, as will ensure that the claimant's earnings in each of those weeks, except the last, are equal to the weekly rate of his normal earnings from his employer or former employer.
(18) Where a claimant has earnings to which subsections (1) to (16) do not apply, those earnings shall be allocated,
(a) if they arise from the performance of services, to the period in which the services were performed; and
(b) if they arise from a transaction, to the week in which the transaction occurred.
Counsel for the applicants argued that the bonus in question here was not "earnings" within subs (9), because it was not paid in contemplation of a layoff or separation from employment of the claimants. This argument is without foundation. It can be seen from a careful reading of s 58(9) and (16) of the Regulations that earnings are "described in subsections (9)..." if they are earnings paid for one of the reasons stated in paras (a) or (b) of that subsection. If these earnings are paid at the time or in contemplation of the separation from employment, their allocation is governed by subs (9); if they are paid after the separation from employment, their allocation is governed by subs (16). This being so, it seems quite simply impossible to say that the umpire committed one of the errors mentioned in s 28 of the Federal Court Act in deciding as he did.
2. Interpretation of s 44
Those of the applicants affected by this second question also lost their employment with Quebec North Shore as a result of the dispute which lasted from July 14, 1980 to May 10, 1981. It was established that, as a consequence of this loss of employment, s 44(1) of the Act made them ineligible for benefits so long as one of the three situations mentioned in that subsection had not occurred. 1 In spite of this, applicants maintained they were entitled to benefits for a period of several weeks following the Friday before Christmas Day, 1980, because it was the employer's well-established policy to close down its operations each year during the holiday period. As applicants would not have worked during this period even if there had been no labour dispute, they said they were entitled to benefits during this time despite the exclusion imposed by s 44(1). The board of referees ruled in their favour and set aside the decision of the Commission which had denied them benefits. On an appeal by the Commission, the umpire reversed the decision of the board of referees and restored the ineligibility of applicants.
Applicants argued that the umpire's decision is unlawful in that it cannot be reconciled with the interpretation which other umpires have long given to s 44(1), notably in decisions CUB 1121, 3102 and 3265. Under those decisions, in cases where a claimant has become ineligible for benefits under s 44(1), this ineligibility ceases when the claimant can establish that, even in the absence of a labour dispute, he would not have been able to work: this is so, they argued, because the labour dispute then ceases to be the real cause of the claimant being unemployed.
For the umpire to be blamed for not following these "precedents", they must have been in accordance with the wording of s 44. That does not appear to me to be the case. Although the umpire decisions relied on were clearly prompted by a laudable concern for fairness, I consider that they cannot be reconciled with the wording of the Act, which provides that the ineligibility imposed by s 44(1) only ends when one or other of the situations mentioned in paras (a), (b) and (c) of that subsection arises. I do not feel it is possible to interpret any of these three paragraphs as meaning that the ineligibility ends when the labour dispute ceases to be real cause of the unemployment.
Accordingly, the decision a quo appears to be without foundation. I would dismiss the application.
"Louis Pratte"
J.C.F.C.
I concur.
Gerald Le Dain J.
1 These three situations are as follows:
(a) the termination of the stoppage of work,
(b) he becomes bona fide employed elsewhere in the occupation that he usually follows, or
(c) he has become regularly in some other occupation.
REASONS FOR JUDGMENT
HUGESSEN J
I am entirely in agreement with the conclusions of my brother Pratte J on the two aspects of the case at bar, and would only add certain observations regarding the ineligibility imposed by s 44 of the Unemployment Insurance Act, 1971.
Subsection (1) of s 44 reads as follow:
A claimant who has lost his employment by reason of a stoppage of work attributable to a labour dispute at the factory, workshop or other premises at which he was employed is not entitled to receive benefit until:
(a) the termination of the stoppage of work,
(b) he becomes bona fide employed elsewhere in the occupation that he usually follows, or
(c) he has become regularly engaged in some other occupation, whichever event first occurs.
In my opinion, the use of the past tense of the verb "to lose" in the first phrase inevitably takes us back to the time when the claimant became unemployed. It is the cause of his loss of employment at this particular time, not the cause of his subsequent unemployment, which makes him ineligible; once established, the ineligibility does not end until one of the three situations listed in paras (a), (b) and (c) occurs. In other words, the question that must be asked is "How did the claimant lose his employment at the start of his period of unemployment?", and not "Why is the claimant unemployed now?" Accordingly, once a claimant loses his employment for the reason stated in s 44(1), he becomes ineligible; he remains so as long as one of the conditions in paras (a), (b) and (c) has not occurred, even if had there been no labour dispute he would subsequently have lost his employment in any case for some other reason.
I would dispose of the appeal as my brother Pratte J suggests.
"James K. Hugessen"
J.