IN THE MATTER OF the Unemployment Insurance Act 1971
-and-
IN THE MATTER OF a claim for benefit by
Douglas GARLAND
-and-
IN THE MATTER OF an appeal to an Umpire by the Canada Employment and
Immigration Commission from a decision of the Board of Referees
given at Calgary, Alberta on November 23, 1983.
CORRESPONDING FEDERAL COURT DECISION: A-1132-84
DECISION
MR. JUSTICE DUBINSKY, UMPIRE:
This appeal from a unanimous decision of the Board of Referees came before me on May 18, 1984 at Calgary, Alberta. Acting on behalf of the appellant, the Canada Employment and Immigration Commission, hereinafter referred to as the Commission, was Johannes Van Iperen, Q. C. The respondent, Douglas Garland, was present and represented himself.
As a background to this case, from the Observations of the Commission to the Board of Referees (Exhibit 14), I extracted the first two paragraphs and I was satisfied and found as accurate the facts stated therein:
"Douglas Garland filed an initial application for benefit 15 Aug. 1983 (Ex. 2), at which time he supplied the Record of Employment from Digitech STD (Ex. 3) and completed an application for extension of the Benefit Period, which didn't apply to the claimant but was considered as an extension of the qualifying period (Ex. 4). A request for additional information was sent and returned with a letter from Alberta Solicitor General (Ex. 5 & 6). A phone call was made to the records department on 14 Sept. 1983, to clarify information on the letter from the Alberta Solicitor General (Ex. 7) and after assessing the claim a notice of Insufficient Insured Weeks was sent to the claimant (Ex. 8) on 20 Sept. 1983.
On 28 Sept. 1983, the claimant came into the office to supply further information (ex. 9) and another letter from Alberta Solicitor General's Dept. was submitted (Ex. 10). After a further review of the claim was made, a Notice of Decision Maintained was sent, as the additional information did not result in a change (Ex. 11). The claimant came into the office to supply further information on 12 Oct. 1983 (Ex. 12) and a letter of appeal was received on 18 Oct. 1983. (Ex. 13)."
Pursuant to his letter of Appeal (Exhibit 13), the Board of Referees heard his appeal on November 23, 1983 and unanimously upheld his appeal. Following is a portion of the Board's decision.
"(2) All relevant facts obtained during the hearing and not reported in the exhibits:
The claimant again stated that he feels that he was confused by virtue of the Temporary Absence Agreement to his father's farm and that this should be considered.
(3) Reasoning and statements of the finding of the board of the referees on questions of the fact material to the decision.
Having duly considered all the facts presented to us, the Board or Referees finds that the claimant by virtue of his Temporary Absence Agreement which allowed him to reside and work only at his parent's farm, was confined in a jail, penitentiary or other similar institution from 24 September 1982 to 24 March 1983 and that appropriate recalculations of insurable weeks in his qualifying period should be made.
The claimant's appeal is ALLOWED."
On December 9, 1983, the Commission entered an appeal to an Umpire against the decision of the Board of Referees and selected clause (b) of Section 95 of the Unemployment Insurance Act, 1971 as the grounds of its appeal. In due course, the matter came before me sitting as an Umpire.
I carefully examined all the exhibits in the file and have noted particularly the Observations of the Commission on the one hand and the comments and submissions made by and on behalf of the claimant on the other. After careful consideration, I came to the conclusion that the decision of the Board of Referees was not in order and had to be overruled. There was no legal merit whatsoever to the claimant's appeal.
The relevant statutory provision is Section 18 (2) of the Act and it reads as follows:
"(2) Where a person proves in such manner as the Commission may direct that during any qualifying period mentioned in paragraph (a) of subsection (1) he was not employed in insurable employment for the reason that he was for any week
(a) incapable of work by reason of any prescribed illness, injury, quarantine- or, pregnancy, (1978-79, c. 7, s. 4.1.)
(b) confined in any gaol, penitentiary or other similar institution,
(c) in attendance at a course of instruction or other program to which he was referred by such authority as the Commission may designate, or
(d) in receipt of temporary total workmen's compensation payments for an illness or injury,
that qualifying period shall, for the purposes of this section, be extended by the aggregate of any such weeks. (1976-77, c. 54, ss. 31(2), (3).)
It was Maxwell on Interpretation of statutes who reminded us at p. 6 that "the golden rule is that the words of a statute must prima facie be given their ordinary meaning". It as Lord Wensleydale in Grey v. Pearson (1857), 6 H.L.C. 61, who formulated the "golden rule" of construction when at p. 106, he stated as follows:
"In construing wills and, indeed, statutes and all written instruments, the grammatical and ordinary sense of the words to be adhered to unless that would lead to some absurdity, or some repugnancy or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified so as to avoid the absurdity and inconsistency but no further."
Applying the so-called "golden-rule" of construction and keeping in mind the ordinary common sense dictionary meaning of the words, I have no difficulty whatsoever in understanding the meaning of Section 18 (2) of the Unemployment Insurance Act, 1971. I have carefully studied Mr. MacLeod Dixon's submission and I commend him for it. However, I have no hesitation in saying that I prefer to adopt the reasoning of Ms. Marny Reeve of the Commission. In her No. 3. argument of the Observations of the Commission to the Umpire, she stated:
3. The Commission submits that the board of referees erred in law when it concluded that the conditions imposed by the Temporary Absence Agreement as described in exhibits 9, 10, 16.1, 16.2 constituted confinement in a similar institution within the meaning of Section 18 (2) (b) of the Unemployment Insurance Act and thereby allowing an extension of the qualifying period. Section 18 (2) (b) of the Act allows for extension of the qualifying period when a person proves that during any period of that qualifying period he was not employed in insurable employment for the reason that he was, for any week, confined in any gaol, penitentiary or similar institution.
As evidenced in exhibit 6, the claimant was confined in a correctional institute from January 14, 1982, to September 24, 1982 at which time he was released into his parents' custody under a Temporary Absence Agreement. As evidenced in exhibit 4, an extension of the qualifying period was allowed for a total of 37 weeks, the period he was actually incarcerated. This resulted in the claimant having 6 weeks of insurable employment in his extended qualifying period which was insufficient to qualify him to receive benefit under Section 17 of the Act (exhibit 8).
As evidenced by exhibit 11, the extension was not allowed for the period the claimant was participating in the Temporary Absence Agreement. It was considered that the conditions imposed, that the claimant reside and work on his parents' farm, do not equate to confinement in an institution similar to that of a gaol or penitentiary.
Under Section 45 of the Unemployment Insurance Act a claimant is not entitled to receive benefits for any period during which he is an inmate of any prison or similar institution. Section 55 of the Regulations, however, provides that a claimant not be disentitled from receiving benefit by reason only of Section 45 of the Act if that claimant has been granted a temporary absence. It is considered that, once a temporary absence is granted, the claimant is not prevented from being employed by reason of his confinement only. It would follow, therefore, that the claimant, for the period he was released in accordance with the temporary absence agreement, was not prevented from working in insured employment due to being confined in a gaol, penitentiary or similar institution as required by Section 18 (2) (b) of the Act.
The Commission submits, therefore, that a further extension of the qualifying period cannot be granted for the period from September 1982 to March 1983 as the claimant was not prevented from being employed in insurable employment for the reason that he was confined in an institution similar to that of a gaol or penitentiary."
Since May 1, 1980, Section 95 of the Act reads as follows:
"Sec. 95. An appeal lies of right to an umpire in the manner prescribed from any decision or order of a board of referees at the instance of the commission, a claimant, an employer or an association of which the claimant or employer is a member, on the grounds that
(a) the board of referees failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
(b) the board of referees erred in law in making its decision or order, whether or not the error appears on the face of the record; or
(c) the board of referees based its decision or order on an erroneous finding of fact that it made in a perverse and capricious manner or without regard for the material before it."
I am very cognizant of the fact that, in view of the above-quoted Section, an Umpire should be most careful before reversing a decision of a Board of Referees. As a general rule, I have the highest regard for decisions rendered by Boards of Referees throughout Canada and, as a matter of fact, I find myself only rarely having to overrule the Boards. However, in this case, I am completely satisfied that this Board of Referees definitely erred in law in making the decision it did and, under the provisions of Section 95 (b), I have no hesitation whatsoever in reversing it. That, however, is not the only applicable clause.
The Board's decision had to be reversed also on account of Section 95(c). In finding as it did, the Board of Referees made its decision in a perverse and capricious manner and without regard for the material before it.
For the above reasons, the appeal of the Commission had to be allowed, and this written decision confirms the oral one given by me at the hearing in Calgary, Alberta, on May 18, 1984.
_____________________
UMPIRE
HALIFAX
September 11, 1984