CUB 11403
JUDGMENT OF THE FEDERAL COURT OF APPEAL
Date:
June 12, 1986
Docket:
A-942-85
Umpire's Decision:
CUB 11403
CORAM :
THE CHIEF JUSTICE
HUGESSEN, J.
COWAN D. J.
IN THE MATTER of the Unemployment Insurance Act, 1971,S.C. 1971, Chapter 48, as amended,
AND IN THE MATTER OF a Decision of the Honourable Mr. Justice Francis Muldoon, sitting as an Umpire pursuant to the provisions of the Unemployment Insurance Act, 1971;
AND IN THE MATTER OF an Application pursuant to Section 28 of the Federal Court Act, R.S.C. 1970, (2nd Spp.), Chapter 10, to review and set aside the Decision of the Umpire.
BETWEEN :
THE ATTORNEY GENERAL OF CANADA,,
applicant,
-and-
ARTHUR HURREN,
respondent.
Heard at Toronto on Monday, May 26, 1986.
REASONS FOR JUDGMENT
(Judgment rendered at Ottawa
on Thursday, June 12, 1986)
HUGESSEN, J.:
This section 28 application raises but a single, narrow issue. It is the question of the relationship between and the proper interpretation of subsections (1) and (2) of section 44 of the Unemployment Insurance Act, 1971. In concrete terms, the question is to know whether a striking employee who retires from the work force during the currency of a strike continues to be disentitled to unemployment insurance benefits.
The respondent Hurren was sixty-three at the relevant times. He had worked for the same employer for over forty-four years. When the union of which he was a member went out on strike, it was obvious that he had little to gain from participating in the dispute. He accordingly elected to take his retirement and, when this became effective, about one month after the strike had started, he applied for benefits. The Commission turned him down and this decision was confirmed by the Board of referees on the grounds that the respondent
"could not obtain relief by voluntarily separating from his employment following the commencement of the stoppage of work."
Muldoon J., sitting as an umpire, reversed that decision. He held that subsection 44(1) of the Act did not apply because the respondent had brought himself within the terms of subsection 44(2). In my view, he was right to do so.
It was not disputed at the hearing before us that the respondent had truly retired, had given up his membership in the union, and was no longer participating in or directly interested in the outcome of the strike. The applicant argued somewhat faintly that the respondent might have an eventual interest in the settlement of the strike should he decide to return to work; assuming that such an interest was different from that of the public at large, it would not be "direct" within the intendment of paragraph 44(2)(a). The issue therefore was not whether the respondent had met the burden imposed on him by subsection 44(2) but rather whether that provision could ever be applicable to someone who had already become disentitled under subsection 44(1).
Subsection 44.(1) of the Act reads as follows:
44.(1) 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.
As a matter of straightforward grammatical construction, it seems to me that the following are, for the purposes of the present case, the salient features of this text:
1. the text creates a disentitlement.
2. It looks backwards in time from the moment of the claim to the time of loss of employment.
3. If the loss of employment has occurred for the reason assigned, the disentitlement follows.
4. Once disentitlement is established, it continues until the happening of one of the events mentioned in paragraphs (a), (b) and (c).
For its part, subsection 44(2) reads as follows:
44. ...
(2) Subsection (1) is not applicable if a claimant proves that
(a) he is not participating in or financing or directly interested in the labour dispute that caused the stoppage of work; and
(b) he does not belong to a grade or class of workers that, immediately before the commencement of the stoppage, included members who were employed at the premises at which the stoppage is taking place and are participating in, financing or directly interested in the dispute.
The following points emerge from this text:
1. It operates to render subsection (1) inapplicable.
2. It speaks in the present tense to the moment of the claim.
3. There is no requirement that the loss of employment should be simultaneous with the labour dispute or the stoppage of work and it clearly contemplates that it may be later in time (as, for example, where non-union employees are laid off by an employer some time after a strike has begun). 1
4. The condition of being a claimant being a continuous one, there is equally no requirement that the claim should be simultaneous with the loss of employment.
From the foregoing, there appears to me to be no irreconcilable conflict between the two texts. Subsection (1) speaks of a claimant who is disentitled and of how that disentitlement may be brought to an end. A claimant who brings himself under subsection (2), however, is not disentitled at all and no part of subsection (1) has any application to him. A disentitlment which has come into being under subsection (1) continues until the happening of one of the "events" listed in paragraphs (a), (b) and (c); this does not, however, exclude the possibility of the disentitlement become inapplicable by reason of the claimant subsequently proving that he now falls under subsection (2).
There is nothing in the foregoing interpretation which is contrary to the Act. That policy, as I understand it, is to provide benefits to unemployed persons while avoiding having such benefits used for the purposes of financing a labour dispute. An employee who retires (voluntarily or compulsorily, it matters not) severs his relationship with his employer. He no longer has anything to win or lose from the outcome of the labour dispute. He has become a free agent. The source of his loss of employment, a critical factor for the purposes of determining disentitlement under subsection 44(1) is no longer relevant for he has voluntarily given up the possibility of ever getting it back.
I would dismiss the application.
"James K Hugessen"
J.
"I agree.
A.L. Thurlow.,C.J."
"I concur
G.S. Cowan, D.J."
... the language of section 44(2) speaks to the time of the occurence of the labour dispute...
An application to set aside the decision in MOTYCHKA was dismissed by this Court (Court file A-1784-83, September 18, 1984) but, since no reasons were given, we do not know on what basis it had been attacked.
2011-01-10