CORRESPONDING FEDERAL COURT DECISION: A-451-85
IN THE MATTER OF the Unemployment Insurance Act, 1971
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IN THE MATTER OF a claim for benefit by
Carm CRUPI
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IN THE MATTER OF an appeal to an Umpire by
the claimant from a decision of the Board of Referees
given at Ottawa, Ontario, on September 25, 1984.
DECISION
J.L. DUBINSKY, UMPIRE:
This appeal from a majority decision of the Board of Referees came before me on March 6, 1985, at Ottawa, Ontario. The appellant, Carm Crupi, hereinafter referred to as the claimant, was present and was represented by Charles MacDonald, LL.B. The respondent, the Canada Employment and Immigration Commission, hereinafter referred to as the Commission, was represented by Judith McCann, LL.B., of the Department of Justice, Ottawa. In view of the unusualness of the issue involved, decision was reserved and briefs were requested from counsel. These were later submitted on March 18 and March 21, 1985.
The facts in this case are relatively brief and not contested. The matter is entirely a question of law. The claimant filed what was treated as an initial claim for unemployment insurance dated March 13, 1984 (Exhibit 2) effective as of March 18, 1984. Benefits were paid to the claimant for all weeks of proven entitlement up to May 21, 1984. On May 29, 1984, the Commission was advised by the Nepean Police Force that the claimant had been remanded by Court Order to the Penetanguishene Mental Health Centre for physiatric assessment (Exhibit 4). Exhibit 5 dated June 1, 1984, is a reported interview between a Commission official and someone from Penetanguishene. It is to the effect that in clinical records the claimant "was admitted to the institution on 22 May 1984. Presently he is kept in the maximum security section."
On June 1, 1984, the Commission sent to the claimant a Notice of Refusal (Exhibit 6) and this read in part as follows:
"On the information which has been presented in connection with your claim for benefit you are not entitled to receive benefit under Section 45(a) of the Unemployment Insurance Act, and Regulation 55 as you are an inmate of an institution. Payment of benefit is suspended from 22 May 1984 for as long as you are an inmate."
On July 20, 1984 the claimant contacted the Commission and advised that he now was available and capable for work. He was told that his disentitlement would be terminated as of July 18, 1984. He thereupon requested reinstatement back to May 22, 1984 on the grounds of medical disability and to support his claim for sickness benefits from May 22, 1984 to July 18, 1984, he submitted a medical certificate by Dr. E.T. Barker. The Commission then advised the claimant that there would be no change in its original position. The claimant apparently presented another medical certificate but the Commission nevertheless refused to change its view, namely that he had not been at the Penetanguishene Mental Health Centre by his own choice, that he had been remanded there by a Court Order and that therefore the sections mentioned in the Notice of Refusal (Exhibit 6) were applicable to him.
On September 4, 1984, the claimant entered an appeal against the Commission's decision, and as intimated in the heading to these reasons, the appeal came on before the Board of Referees on September 25, 1984. The Board in a majority decision dismissed the claimant's appeal. Following are the majority and minority decisions: order of the
"Statement of Facts"
CONCLUSION:
It is the conclusion of the majority of the Board that the claimant was in fact in, pre-trial custody and that Penetanguishine is an institution which can be classified within the definition of Section 45A: "he is an inmate of any prison or "similar institution". The definition could possibly be challenged as it was by Mr. MacDonald, that the Claimant went in a "hospital" and not as alleged in a "similar institution" to a prison. The basis of the majority conclusion is; (a) that Mr. Crupi had been charged with an offence and was taken in custody (b) that he was remanded by a Court order on the advice of a Dr. Blair of the Provincial Court House for psychiatric assessment. (c) That he was first referred to The Royal Ottawa Hospital and then transferred to the Penetanguishine Mental Health Centre which is an institution with a maximum security facility (d) that the Claimant was in custody throughout his stay at Penetanguishine which is part of a Penitentiary complex and that he was also held for a period in the maximum security section of the institution. (e) That after serving a 60 days assessment period, Mr. Hopi was later convicted by due process of law and sentenced to a probation period. The "dénouement" of his probation can hardly be argued as proof that he was not in real custody pending trial, but rather as alleged by Mr. MacDonald that the Claimant was in reality a patient under assessment in a health facility which because of its more advanced resources was in fact the Penetanguishine Health Centre. The Insurance Officer was in our view, correct in his conclusion and no change should be made to his decision.
DECISION: That the decision of the Insurance Officer be upheld.
Statement of Facts
Mr. Carm Crupi appeared before the Board and was represented by his legal Advisor Mr. C. McDonald of the firm of Karam, Tannis, Greenspon, in Ottawa. During the period from May 22, 1984 to July 18, 1984 Mr. Crupi was confined to the Royal Ottawa Hospital and the Mental Health Centre Penetanguishine for psychiatric assessment and treatment. Mr. Crupi had been charged with an offence under the Criminal Code and was later found guilty of this offence and was placed under probation. Mr. Crupi's trial took place after he was released from Penetanguishine Mental Health Centre. The Commission ruled that while Mr. Crupi was confined in these two institutions he was disqualified for benefits under the Section 45(a) of the Unemployment Insurance Act which states that a claimant is not entitled to receive benefits while "he is an inmate of any prison or similar institution" Mr. Crupi was appealing against that decision. The basis of the appeal as expressed by Mr. McDonald was firstly, that Mr. Crupi while in these institutions was not an inmate but as a person under treatment as a patient; secondly that the Penetanguishine Mental Health Centre cannot be considered to be a prison since it is listed under the Ontario Mental Hospital Act as a mental hospital; thirdly that the definitions applicable to inmates, to hospitals and to prisons must be closely followed. Mr. Crupi submitted a further statement to the Board which is included as Ex. 15-1 and 15-2.
MINORITY DECISION
As Chairman I am dissenting from the majority opinion on the following basis. Mr. Crupi was confined to the two institutions concerned for the purposes of assessing his disability and subsequently for treatment. He was not held for trial but was on a remand order. He was released prior to his trial. Therefore Mr. Crupi was basically not an inmate of an institution but rather was a patient. He was in fact ill and was being treated as such. Secondly the institutions concerned are mental hospitals, not prisons. The fact that Mr. Crupi was confined and not able to leave was irrelevant in this case. The relevant consideration is the mental illness of Mr. Crupi at that time. The conclusion of the Chairman is therefore that Section 45(a) of the Act does not apply in the case of Mr. Crupi. Exibit 15-1.
On September 28, 1984, the claimant launched an appeal against the Board's decision and he based his appeal on clause (c) of Section 95 1 of the Unemployment Insurance Act, 1971. In due course, the matter came before me sitting as an Umpire under the Act.
Before I get to the case itself, I must pay deserved tribute now, as I did at the hearing, to Mr. Charles MacDonald for his very fine submission on behalf of the claimant herein. Mr. MacDonald's presentation at the hearing was deserving of a much better fate than that accorded to it by me. The fact, however, that I did not–indeed could not–share his point of view on this particular claimant's case, did not lessen in the slightest my appreciation for his efforts on behalf of his client. May I also compliment Ms. McCann for her fine presentation of the Commission's position herein.
To begin with, the relevant statutory provisions in this case is Section 45(a) of the Unemployment Insurance Act, 1971 and Section 55 of the Unemployment Insurance Regulations. They read as follows:
"45. Except under section 31, a claimant is not entitled to receive benefit for any period during which
(a) he is an inmate of any prison or similar institution;
55. A claimant who is an inmate of a prison or similar institution and has been granted parole, partial parole or temporary absence, or a certificate of availability for the purpose of seeking and accepting employment in the community, is not disentitled from receiving benefit by reason only of section 45 of this Act."
Counsel for the claimant strongly contended that for the period of time during which the claimant was at Penetanguishene Mental Health Centre, he was there as a patient. On the other hand Commission counsel equally stressed the fact that he was an inmate there. The Shorter Oxford English Dictionary speaks of an inmate as "one who dwells with others in the same house (now rare); an occupant along with others; indweller, inhabitant, occupier; dwelling in the same house with or in the house of another." Black's Law Dictionary refers to an inmate as "a person confined to a prison, penitentiary, or the like; a person who lodges or dwells in the house with another, occupying different rooms, but using the same door for passing in and out of the house." Britannica World Language Dictionary defines inmate as one who lives in a place with others; an associate or mate in occupancy." The latter dictionary;: also describes an inmate as "one who is kept or confined in a prison, asylum or similar institution." As for patient, Britannica World Language Dictionary defines the word thus: "A person undergoing treatment for disease or injury."
Were the claimant at Penetanguishene but for a day or two, one could hardly have called him an inmate of the place. But in view of the length of time that he did spend at the institution there can hardly be any doubt that he became an inmate. However, that does not rule out the fact that he was also a patient at the Centre and so it is my view that he was both an inmate and a patient at Penetanguishene from May 22, 1984 until on or about July 20, 1984 when he was discharged from the institution.
With all due respect to counsel, the issue in this case does not turn on what was the claimant's status while at Penetanguishene Mental Health Centre. The issue, in my considered judgment, is whether or not the Centre falls within the language of Section 45(a) of the Act. Put simply, was Penetanguishene "a prison or similar institution" for the claimant, Carm Crupi?
The next obvious question must be: what is a prison? Over 300 years ago, a brilliant English poet, Richard Lovelace, in his famous poem "To Althea: From Prison" gave to the world his never to be forgotten definition:
"Stone walls do not a prison make nor iron bars a cage. Minds innocent and quiet take that for an hermitage."
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 was 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 villa and, indeed, statutes and all written instruments, the grammatical and ordinary sense of the words is to be adhered to unless that would lead to some absurdly, or some repugnancy or inconsistency with the rest of the instrument, instrument 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 45(a) of the Unemployment Insurance Act, 1971. The ordinary and grammatical sense of the word "prison" is to be found in several well-known publications of which I have selected four.
Black's Law Dictionary (1979) 5th edition defines "prison" as a public building or other place for the confinement of persons whether as a punishment imposed by law or otherwise in the cause of the administration of justice, (my underlining).
Earl Jowitt's The Dictionary of English Law (1959) tells us that prisons are places in which persons are kept either for safe custody until they have been tried for an offence of which they stand charged or for punishment after being tried and convicted. (my underlining)
In Stroud's Judicial Dictionary we have the following definition of prison:
PRISON.(1) "Every place where any person is restrained of his liberty is a prison; as, if one take SANCTUARY and depart thence, he shall be said to 'break prison'" (Hobert and Stroud's Case, Cro. Car. 210); so, of a place where you are only at liberty on parole (ibid.); so, where "un fuit mis in les cippes come suspect de felony, et la vient un. autre que luy lessa aler charge–ces est felony per common ley, de frangentibus prisonis" (Dyer. 99, pl. 60). See further GAOL; IMPRISONMENT. Probably a fuller definition of "prison" is "a place of restraint for the safe custody of a person to answer any action, personal or criminal" (Cowel), or of a person convicted of an offence or who for any cause is legally ordered into confinement. See further 2 Hawk. P.C. Ch. 18, s. 4; 10 Encyc. 402-404; BREAK OUT; ESCAPE; RESCUE; PRISONER. (my underlining)
Finally, from 72 Corpus Juris Secundus, we have the following:
a. Prison
A prison is a place of confinement for the safe custody of persons, in order to their answering in any action, civil or criminal;1 places maintained by public authority for the detention of those confined under legal process;2 a building for the safe custody or confinement of criminals and more specicustody or confinements; of criminals and more specifically convicted criminals.3 In a general sense the term may said to include every place of confinement under legal process or lawful arrest,4 but usually it is specifically applied to the place of confinement of convicted criminals, and is used to designate an institution for tire imprisonment of persons convicted of the more serious crimes.6 A prison is not a place of refuge for a criminal; it is for his punishment.7
(my underlining)
It goes without saying that the claimant originally had been charged with a criminal offence. Pursuant to this, he was remanded to the Penetanguishene Mental Health Centre and was held in the maximum security section of that institution. In due course after his release from Penetanguishene, he was tried for the offence for which he had been charged and on being found guilty, was released on probation. While I have much sympathy for the claimant who, I am satisfied, is endeavoring sincerely to re-establish himself as a respected and law-abiding citizen and for his efforts I commend him highly and wish him good luck, nevertheless I have no other course to follow on the uncontradicted facts of this case but to dismiss the claimant's appeal. For the period of time that he spent in Penetanguishene Mental Health Centre, he was in prison and hence under the clear context of Section 45(a) of the Act was not entitled to receive benefits.
There is another good reason why I must dismiss this appeal. The claimant specified clause (c) of Section 951 of the Act as grounds of his appeal. However, I shall touch upon all three clauses.
As to Section 95(a), I am satisfied that the Board of Referees did not fail to observe a principle of natural justice. The claimant was present before the Board of Referees together with his counsel and I have no doubt that they were given every opportunity to present his case. There is absolutely nothing to suggest that the Board was not impartial or that the Board was biased and therefore clause (a) of Section 95 is not applicable.
Insofar as Section 95(b) is concerned, as I have endeavoured to explain in the preceding paragraphs, I am satisfied beyond any question that the majority of the Board of Referees did not commit any error of law with regard to any provision of the Unemployment Insurance Act, 1971, or with regard to the recognized jurisprudence touching upon the Act. Accordingly, Section 95(b) is not applicable herein.
As to Section 95(c), the questions which the Board of Referees was called upon to determine were unquestionably those that involved a pure appreciation of facts and circumstances established by proof. There is constant and impressive jurisprudence which holds that an Umpire–since the adoption of the new Section 95 of the Act–cannot overrule a decision of the Board of Referees or reject or modify in any way the conclusions reached by the Board, unless that decision or conclusions appear to be manifestly wrong in relation to the entire file, that is to say, that the finding of fact was made in a perverse and capricious manner. Even if I were tempted to agree with the claimant–which I could not do–I could not uphold his appeal unless it fell squarely within any one of the three clauses of Section 95. My very careful examination of the facts of this case indicates clearly that such is not the situation herein. Hence the appeal from the majority decision of the Board of Referees has to be dismissed.
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UMPIRE
HALIFAX
April 9 1985
1 "Sec. 95. An Appeal lies of right to an umpire 1 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 action 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 of without reward for the material before it."
2011-01-10