Federal Court Decision #A-551-92 - THE ATTORNEY GENERAL OF CANADA v. LOUIS, DUFFENAIS

JUDGMENT OF THE FEDERAL COURT OF APPEAL

Date:
April 23, 1993

Docket:
A-551-92

Umpire's Decision:
CUB 20944

CORAM:

STONE J.A.
LINDEN J.A.
LÉTOURNEAU J.A.

BETWEEN:

THE ATTORNEY GENERAL OF CANADA,

applicant,

- and -

LOUIS DUFFENAIS,

respondent.

Heard at Toronto, Ontario, Friday, April 23, 1993

REASONS FOR JUDGEMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario
on Friday, April 23, 1993)

LÉTOURNEAU, J.A.:

This is an application for judicial review pursuant to section 28 of the Federal Court Act (R.S.C. 1985, c. F-7) to review and set aside the March 5, 1992 decision of an Umpire appointed under the Unemployment Insurance Act (R.S.C. 1985, c. U-1).

The learned Umpire's decision favoured the respondent whose employment with Bell Canada had been initially reduced from full-time to two days and later to one day per week. On February 13, 1991, the respondent who was to begin working one day a week on February 18 filed a claim for unemployment insurance benefits. He contends that at the time of filing his claim he inquired as to what constitutes an interruption of earnings under the Act so as to be eligible for benefits. He said he spoke with an unidentified agent of the Canada Employment and Immigration Commission and was then told that he could do his day of work any day between Monday and Friday without prejudice to his entitlement to benefits. The respondent chose to work every Monday.

On April 3, 1991, the Commission informed the respondent that he was not eligible for benefits as he had not had an interruption of earnings as required by subsection 6(2) of the Act and subsection 37(1) of Unemployment Insurance Regulations. By the combined effect of these provisions an interruption of earnings occurs when, broadly stated, an insured employee is laid-off or separated form his employment and has a period of seven or more consecutive days during which no work is performed for that employer and no earnings arising from that employment are payable ¹. The respondent successfully appealed the Commission's decision to the Board of Referees. That decision of the Board was appealed by the Commission to an Umpire who dismissed the Commission's appeal and upheld the Board of Referee's decision.

In dismissing the Commission's appeal, the learned Umpire applied by analogy the "good cause" test found in subsection 9(4) of the Act. Under that subsection, a claimant who delays filing a claim may still receive benefits prior to the application date if he had a good cause for delaying the filing of his claim. The Umpire found that the respondent did what a reasonable person in his situation would have done to satisfy himself as to his rights and obligations under the Act and that he had been induced into error by an agent of the Commission. In addition, he purported to distinguish the decision of this Court in Granger v. C.E.I.C. ², upheld by the Supreme Court of Canada ³, where Pratte J.A. wrote in relation to an initial but erroneous interpretation of a statutory provision given by the Commission which it later reversed and upon which a citizen had acted to his detriment:

It is beyond question that the Commission and its representatives have no power to amend the law, and that therefore the interpretations which they may give of that law do not themselves have the force of law. It is equally certain that any commitment which the Commission or its representatives may give, whether in good or bad faith, to act in a way other than that prescribed by the law would be absolutely void and contrary to public order. ⁴

With due respect, this case is indistinguishable from the Granger case. The respondent acted, so it seems, upon the erroneous interpretation or understanding of the law by an agent of the Commission with the result that he had no interruption of earnings as required by the Act to qualify for benefits.

In addition, the fact that the respondent did what a reasonable person would have done to inquire as to his rights and obligations under the Act is irrelevant in the context of what constitutes an interruption of earnings because the definition of "interruption of earnings" in subsection 37(1) of the Regulations allows for no exception or justification relating to the claimant's behaviour as does subsection 9(4) of the Act.

Finally, by having started to work the Monday following the filing of his claim and every Monday thereafter, the respondent, assuming that the reduction of his weekly hours of work could amount to a lay-off ⁵, could still not qualify under subsection 37(1) of the Regulations which requires that the period during which there are no earnings from employment be at least seven consecutive days.

For these reasons, this application for judicial review will be granted, the decision of the learned Umpire dated March 5, 1992, will be set aside and the matter will be referred back to the Umpire for redetermination on the basis that the applicant's appeal from the decision of the Board of Referees dated May 2, 1991, must be allowed.

"Gilles Létourneau"

J.A.

¹ Subsection 6(2) of the Act and 37(1) of the Regulations read:

6(2) An insured person, other than a new entrant or re-entrant to the labour force, qualifies to receive benefit under this Act if the person

a) has, during the person's qualifying period, had at least the number of weeks of insurable employment set out in Table 1 of the schedule in relation to the regional rate of unemployment that applies to the person; and
b) has had an interruption of earnings from employment.

² [1986] 3 F.C. 70. This decision was followed by our court in Barzan v. The Minister of Employment and Immigration FCA, April 1, 1993, no. A-373-92.

³ [1989] 1 S.C.R. 141.

⁴ [1986] 3 F.C 70, at p. 77.

⁵ The applicant did not raise the question whether the reduction of an employee's status from regular full-time employee to regular part-time employee amounts to a lay-off or not.