IN THE MATTER OF the Unemployment Insurance Act, 1971
- and -
IN THE MATTER OF an appeal to an umpire by Arthur HURREN
from the decision of a Board of Referees, rendered
at Niagara Falls, Ontario, on June 21, 1984.
CORRESPONDING FEDERAL COURT DECISION: A-942-85
DECISION ON APPEAL
MULDOON, J.:
The claimant brings this application for a review, pursuant to section 95 of the Act, of referees' unanimous decision which upheld the Commission's position to disentitle him from benefits under section 44 of the Act. In his application for review, the claimant invoked all the grounds of appeal specified in section 95. That is, he avers that the board of referees:
(a) failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
(b) erred in law in making its decision or order, whether or not the error appears on the face of the record; or
(c) 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.
At this hearing and, as it appears from the transcript, before the referees, the claimant was represented by counsel, David A. Hurren, of the Ontario Bar, his son. The Commission was represented at this hearing also by counsel, Marlene Thomas.
This claimant's application for review under section 95 of the Act was, by consent of the parties, heard and argued together and in common with that of Bartholomew Purpura, because, it was agreed by counsel, there are sufficient like or common elements in each claimant's case to make such a procedure desirable and conveniently useful. Mr. Purpura also invoked all grounds of appeal specified in section 95 of the Act, and Mr. Hurren (Jr.) also appeared as that claimant's counsel at this review hearing. Mr. Hurren's appeal had been heard approximately two weeks earlier than Mr. Purpura's appeal and by a differently constituted board of referees, except for the chairman who presided in both cases.
In both applications for review of the referees' respective unanimous decisions, the claimants make virtually the same complaint in regard to ground of appeal (a), thus:
The Board made representation prior to the commencement of the hearing, which indicated it was predisposed to dismiss the Claimant's claim without having heard all the evidence, thereby not granting an impartial hearing, thereby not granting the Claimant reasonable opportunity to be heard and thereby depriving itself of the jurisdiction to hear the case.
(exhibit 23-4)
Fortunately, in each of the cases under review, there is a transcript of the proceedings before the referees. Neither transcript provides support for this ground of appeal. Both transcripts do indicate nothing more than that the referees were aware of the claimant's basis of appeal, the issues involved, and some of the pertinent jurisprudence. That, which is laudable preparation, is nothing remotely akin to the grave failure of natural justice and abuse of jurisdiction contemplated by paragraph 95(a) of the Act. Nor did it figure in the oral submissions of the respective counsels at this review hearing. Accordingly, ground (a) is rejected and both claimants appeals are dismissed in that regard. It should be noted that the referees in the Hurren case clearly permitted, and apparently grasped, the arguments of counsel, even though they did not agree with them in the result.
Before dealing with the substantive law and facts, it should be noted that there is one further matter which arose in the Hurren review alone. This claimant complained that he was misinformed by Commission personnel at the Fort Erie office. Counsel for the Commission indicated that this hearing was the first occasion upon which she had ever heard of any allegation of misinformation at the Fort Erie office, or anywhere else, and that it was hard to know the circumstances in that regard at that late hour. Counsel for the claimant then quite properly stated: "I don't put much weight on the misinformation at Fort Erie: there was no evidence of it before the referees." The matter is, accordingly, a non-issue on this review.
The claimant's counsel, in each case, makes the point that the claimant did not take an early retirement, but opted to become fully and finally retired from his employment, having attained the requisite combination of age and years of service provided in the employer's retirement policy (exhibit 5). Article 10.06, g. of the collective agreement (exhibit 8-6) specifies that 65 years of age is "the normal retirement age", from employment with Horton CBI, Limited, the employer. The claimant was 63 years of age when he elected to retire. He retired voluntarily during the course of a legal strike by the members of his union, Local 3598, United Steelworkers of America, against his employer.
The previous collective agreement had expired on January 31, 1984, (exhibit 7-5) and the work stoppage began at 12:01 a.m. on February 2, 1984. On February 29, 1984, the claimant wrote to the employer (exhibit 6-2) to inform that as of March 1st he would "be taking my retirement with Horton C.B.I.". The claimant then filed an initial application for benefit on March 5, 1984, (exhibit 2) for effect from March 4, 1984. An indefinite disentitlement (exhibit 13), effective on the latter date, was imposed pursuant to subsection 44(1) of the Act.
The first two subsections of section 44 headed "Labour disputes" are particularly relevant here. They are :
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.
(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 claimant had been a member of the grades and classes of workers comprising Local 3598 of the Steelworkers, the bargaining unit in the dispute at the employer's premises where the stoppage of work was taking place, and whose members were participating in, financing or directly interested in the dispute. Exhibit 7 demonstrates the veracity of that finding. It is equally clear that he had lost his employment by reason of a stoppage of work attributable to a labour dispute at the premises where he was employed.
Claimant's counsel urges that since the claimant did not take what he called an "early" retirement, he would have the benefit of subsection 44(2) because the claimant took a "final" retirement. That means, counsel says, that the claimant thereupon had no interest in the work stoppage and its outcome; and that the claimant ceased to be a member of the class because of his "final" retirement. Counsel for the claimant argues that paragraph 44(2)(b) is ambiguous. The time which is material, he says, is the time at which the claimant made his claim in March, and not the time at which the strike started on February 2, 1984. In face of this alleged ambiguity he argues for a "liberal interpretation" favoured by Madam Justice Wilson writing for a unanimous Supreme Court in Abrahams v. Attorney General of Canada [1983] 1 S.C.R. 2, at page 10. In that same case, at page 7, in construing and parsing paragraph 44(1)(c), she rightly asserted "that every word counts".
What is then ambiguous about paragraph 44(2)(b)? Whether purposely or not "the claimant" is kept singular and the "workers" and their "included members" are kept plural. In order to avoid the application of subsection 44(1), "the claimant" must prove that "he does not belong to" [what?] "a grade or class of workers that" [when?] "immediately before the commencement of the stoppage included" [whom?] "members who were employed" [where?] "at the premises at which the stoppage is taking place and are participating... etc."
The singular subject of this section does not become a "claimant" surely until he makes a claim. See exhibit 2, dated March 5, 1984. To paraphrase Wilson J. in the Abrahams case, if Parliament had intended what the Commission argues, it would have been very easy to have enacted that subsection (1) is not applicable "if a claimant proves that (a) he is and never was participating in ... the labour dispute that caused the stoppage of work; and (b) he does not and never did belong to a grade or class of workers Those easily enacted words would have accommodated the Commission's posture in this case and made certain that no claimant could ever distance himself from a labour dispute until the three conditions of subsection 44(1) were fulfilled. But then there would be no need for subsection 44(2). However, Parliament must have had the very present-tense purpose which it evinced to permit a "claimant" to prove that he is no longer involved in the labour dispute. That was surely the case as of March 5, 1984.
The cases of Armstrong et al., CUB-8653, and McAndrew, CUB-8668, were cited here in support of the Commission's position. The claimant's counsel would distinguish those cases from this one on the distinction between "early" retirement and "full and final" retirement which he draws. An equally, if not more, important distinction is that no grammatical analysis of subsection 44(2) was performed in those cases, despite reference to the Abrahams decision in which Madam Justice Wilson performed such an analysis of paragraph 44(1)(c).
Whether the claimant's retirement were "early" or "full and final", it was obviously absolute, in terms of severing ties with his employer and his union local. The claimant has indeed proved "that he meets all the conditions enumerated in section 44(2)" to quote Mr. Justice Pratte for a unanimous appeal division in a case curiously and improperly styled Attorney General of Canada v. The Umpire... [1977] 2 F.C. 696. In upholding the insurance officer's decision to disentitle the claimant from benefits, the referees ran afoul of paragraph 95(b) of the Act by erring in law in making their decision. The question of law is correctly decided, therefore, in conformity with the above-expressed interpretation of subsection 44(2) of the Act.
Accordingly, pursuant to section 96 of the Act, the referees' decision is rescinded; and the decision which they should have given is that the claimant's appeal is allowed and the disentitlement imposed on him from March 4, 1984, (exhibit 13) is itself rescinded.
Umpire
Ottawa, Ontario
November 14, 1985