CUB 7842
JUDGMENT OF THE FEDERAL COURT OF APPEAL
Date:
April 9, 1984
Docket:
A-1052-82
Umpire's Decision:
CUB 7842
"TRANSLATION"
CORAM :
PRATTE
LE DAIN
HUGESSEN JJ
BETWEEN :
ATTORNEY GENERAL OF CANADA,
applicant,
-and-
ROGER IMBEAULT,
ARTHUR DANCAUSE,
JEAN-MARC ST-LAURENT,
LAURENT ROBICHAUD,
respondents.
CORRESPONDING FEDERAL COURT DECISION: A-181-83
CORRESPONDING FEDERAL COURT DECISION: A-183-83
Heard in Quebec Wednesday February 15, 1984.
REASONS FOR JUDGMENT
(Judgment rendered at Ottawa, Monday, April 9, 1984)
PRATTE J:
This application pursuant to section 28 of the Federal Court Act is from a decision of an Umpire on appeals heard by him pursuant to Part V of the Unemployment Insurance Act, 1971. That decision decided nine different appeals. Applicant is only appealing here from a part of the Umpire's decision: that which dismissed the appeal by the Employment and Immigration Commission from the decision of a Board of Referees that respondent Dancause was entitled to the benefits which he was claiming.
Respondent Dancause had worked for the Quebec North Shore Limitée paper company since May 13, 1980 when, on July 14, 1980, he lost his employment because of a work stoppage due to a labour dispute at his place of employment. As the Umpire said, there was no doubt that at that point respondent Dancause became ineligible for benefits (s. 44(1) of the Act). Subsequently, however, respondent Dancause like several of his fellow-workers was employed by another employer while the strike continued. This is what resulted in the several appeals heard by the Umpire. In a sense, all these appeals raised the same question: did the ineligibility of respondent Dancause and his fellow-workers end pursuant to s. 44(1)(b), according to which a claimant's ineligibility ends if he becomes "bona fide" employed elsewhere in the occupation that he usually follows? In fact, however, the appeal regarding respondent Dancause raised a special problem. While in the case of his fellow-workers the question was whether their employment during the strike was employment "in the occupation that (they) usually follow", the question raised by the appeal concerning respondent Dancause was whether his employment by another employer during the strike was "bona fide" employment within the meaning of section 49 of the Unemployment Insurance Regulations. 1
During the strike, respondent Dancause worked for another employer for the weeks beginning September 28, November 2, November 23 and December 14, 1980. On December 31, 1980 he made an initial claim for benefits. On March 9, 1981 the Commission informed him that he was regarded as ineligible, first, because he had lost his employment by reason of a work stoppage attributable to a labour dispute, and second, because his employment by another employer during the strike was not "bona fide" employment within the meaning of section 49 of the Regulations, since he had not worked in that employment for two consecutive weeks.
The Board of Referees quashed this decision by the Commission, finding that in the case of part-time employment like that of the respondent, it was not necessary, in order for it to have been "bona fide" employment, for the employee to work for two consecutive weeks. The Commission appealed this decision to the Umpire. This appeal was heard, as I said above, concurrently with other appeals involving respondent Dancause's fellow-workers, and raising entirely different questions. This explains why the Umpire, in rendering the decision a quo, forgot that the appeal regarding respondent Dancause raised a special problem and omitted to rule on this question. It is common ground that the Umpire mistakenly treated the appeal involving respondent Dancause like those involving several of his fellow-workers, and that in all these cases he dismissed the appeals of the Commission on the ground that the employment held by these employees during the strike was in fact employment in the occupation that they usually followed.
The question is accordingly whether the Board of Referees erred in law in finding that respondent Dancause's employment during the strike was "bona fide" employment within the meaning of s. 49 of the Regulations, despite the fact that respondent had not help that employment for two consecutive weeks. If the Board erred in arriving at this decision, it follows that the Umpire also erred in the same way in not setting aside the Board's decision; while if the Board of Referees was correct, the decision of the Umpire is unassailable.
Under s. 49 of the Regulations, the phrase "bona fide employed" in s. 44(1)(b) of the Act means "genuinely employed in employment of not less than two weeks duration". Counsel for the application argued that this provision should be understood as requiring that the two weeks in question be consecutive. Counsel for the respondent maintained that this interpretation adds to the wording of the Regulation.
In my view, if we look at the English version of s. 49, it appears that a person is only "bona fide employed" within the meaning of s. 44(1)(b) of the Act if he has in fact worked in such employment for two weeks ("two weeks duration"). It appears to me that the idea of duration necessarily implies some continuity. It seems clear that it is not possible to say of someone who has worked in a job a half-day a week for twenty weeks that he has worked for two weeks’ duration: and this is true even if the person worked as much time as someone who worked for two continuous weeks of work. For the same reason, it appears to me that respondent Dancause, by not working for two consecutive weeks, did not meet the requirements of s. 49 of the Regulations.
I would accordingly allow the application, set aside the decision a quo in so far as it relates to respondent Dancause, and refer the matter back to the Chief Umpire for him to decide it, or cause it to be decided, by another Umpire on the assumption that s. 49 of the Regulations requires, in order for employment to be "bona fide" within the meaning of s. 44(1)(b) of the Act, that there must be genuine employment for two consecutive weeks.
"Louis Pratte"
J.F.C.C.
"I concur.
James K. Hugessen, J."
"I concur.
Gérald Le Dain, J."
1 Under s. 58(f) of the Act the Commission may, with the approval of the Governor in Council, make regulations "determining ... the meaning of "bona fide employed" for the purposes of section 44."
Pursuant to this power, the Commission adopted s. 49 of the Regulations, which reads as follows:
Sec. 49.1 For the purposes of paragraph 44(1)(b) of the Act "bona fide employed" means genuinely employed in employment of not less than two weeks duration.
Art. 49. Aux fins de l'alinéa 44(1)b) de la Loi, l'"engagement de bonne foi" s'entend de l'exercice réel d'un emploi pendant au moins deux semaines.
2011-01-10