CUB 32940
IN THE MATTER OF the Unemployment Insurance Act, 1971
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IN THE MATTER OF a claim for benefit by Rosemarie BOND and JENNIFER MAURICE
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IN THE MATTER OF an appeal to an Umpire by the claimants from a decision of the Board of Referees given at Welland, Ontario, on February 17th, 1994.
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IN THE MATTER OF a claim for benefit by Norman CHERUBINI
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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
Niagara Falls, Ontario on February 24th, 1994.
DECISION
HON. E. J. HOUSTON:
These appeals were heard together at Niagara Falls, Ontario, on November 20th, 1995.
The claimants-worked for the Welland County Roman Catholic School Board. They were occasional teachers. The three appellants were represented by David Bloom, a barrister. Robert Jaworski represented the Commission.
There was a stoppage of work because of a labour dispute on June 8th, 1993. In Exhibit 5 - the Insurance Agent advised the appellant that she was indefinitely suspended from June 8th, 1993. The decision was based on Section 31(l) of the Unemployment Insurance Act and Section 49 of the Regulations.
Section 31(l) of the Act, as applied to claims commencing after November 18th, 1990, reads:
"(1) Subject to the regulations, a claimant who has lost an employment or is unable to resume a previous 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 the earlier of:
a) the termination of the stoppage of work, and
b) the day on which the claimant becomes regularly engaged elsewhere in insurable employment."
(Section 31 was formerly Section 44)
The majority of the Board relied on the judgment of the Federal Court of Appeal in Imbeault - A-181-83. At page four, commencing at "2. Interpretation of s 44", Mr. Justice Pratte said:
"Those of the applicants affected by this second question also lost their employment with Quebec North Shore as a result of the dispute which lasted from July 14, 1980 to May 10, 1981. It was established that, as a consequence of this loss of employment, s 44 (l) of the Act made them ineligible for benefits so long as one of the three situations mentioned in that subsection had not occurred. In spite of this, applicants maintained they were entitled to benefits for a period of several weeks following the Friday before Christmas Day, 1980, because it was the employer's well-established policy to close down its operations each year during the holiday period. As applicants would not have worked during this period even if there had been no labour dispute, they said they were entitled to benefits during this time despite the exclusion imposed by s 44 (l). The Board of Referees ruled in their favour and set aside the decision of the Commission which had denied them benefits. On an appeal by the Commission, the Umpire reversed the decision of the Board of Referees and restored the ineligibility of applicants.
Applicants argued that the Umpire's decision is unlawful in that it cannot be reconciled with the interpretation which other Umpires have long given to s 44(l), notably in decisions CUB 1121, 3102 and 3265. Under those decisions, in cases where a claimant has become ineligible for benefits under s 44(l), this ineligibility ceases when the claimant can establish that, even in the absence of a labour dispute, he would not have been able to work: this is so, they argued, because the labour dispute then ceases to be the real cause of the claimant being unemployed. For the Umpire to be blamed for not following these "precedents", they must have been in accordance with the working of s 44. That does not appear to me to be the case. Although the Umpire decisions relied on were clearly prompted by a laudable concern for fairness, I consider that they cannot be reconciled with the wording of the Act, which provides that the ineligibility imposed by s 44(l) only ends when one or other of the situations mentioned in paras (a), (b) and (c) of that subsection arises. I do not feel it is possible to interpret any of these three paragraphs as meaning that the ineligibility ends when the labour dispute ceases to be real cause of the unemployment."
(Emphasis added)
Counsel for the appellants attempts to distinguish this judgment. It is to be noted that Mr. Justice Hugessen in his concurring judgment in Imbeault, after setting out the provisions of Section 44, says:
"In my opinion, the use of the past tense of the verb "to lose" in the first phrase inevitably takes us back to the time when the claimant because(sic) unemployed. It is the cause of his loss of employment at this particular time, not the cause of his subsequent unemployment, which makes him ineligible; once established, the ineligibility does not end until one of the three situations listed in paras (a), (b) and (c) occurs. In other words, the question that must be asked is "How did the claimant lose his employment at the start of his period of unemployment?", and not "Why is the claimant unemployed now?" Accordingly, once a claimant loses his employment for the reason stated in s 44(l), he becomes ineligible; he remains so as long as one of the conditions in Paras (a), (b) and (c) has not occurred, even if had there been no labour dispute he would subsequently have lost his employment in any case for some other reason. I would dispose of the appeal as my brother Pratte J suggests."
(Emphasis added)
On November 18th, 1990 legislation was passed defining the termination of stoppage of work.
Section 49 of the Regulations says:
"(1) For the purposes of section 31 of the Act and subject to subsection (2), a stoppage of work at a factory, workshop or other premises is terminated when:
(a) the work-force at the factory, workshop or other premises attains at least 85 per cent of its normal level; and
(b) the level of activities in respect of the production of goods or services at the factory, workshop or other premises attains at least 85 per cent of its normal level.(18 Nov.90)
(2) Where, in respect of a stoppage of work, an occurrence prevents the attainment of at least 85 per cent of the normal level of the workforce or activities in respect of production of goods or services at a factory, workshop or other premises, the stoppage of work terminates (a) if the occurrence is a discontinuance of business, a permanent restructuring of activities or an Act of God, when the level of the work-force and of those activities attains at least 85 per cent of that normal level as adjusted by taking that occurrence into account; and
(b) if the occurrence is a change in economic or market conditions or in technology, when (i) there is a resumption of activities at the factory, workshop or other premises, and (ii) the level of the work-force and of those activities attains at least 85 per cent of that normal level as adjusted by taking that occurrence into account. (18 Nov.90)
(3) For the purposes of calculating the percentages referred to in subsections (1) and (2), no account shall be taken of exceptional or temporary measures taken by the employer during the stoppage of work for the purpose of offsetting the effects of the stoppage. (18 Nov.90)."
These appellants were employed as occasional teachers in the 1992-93 school year, by the Roman Catholic Separate School Board of Welland County. They worked as long term occasional teachers from January 29th to June 7th, 1993.
The appellants, counsel argues that because there was no work for occasional teachers after June 25th, 1993, those teachers should be entitled to unemployment insurance benefits at that date.
Occasional teacher is defined in the Education Act R.S.O. 1990 Section (1)(1). There is no doubt that their contracts did not extend beyond the end of the school year.
The appellants presented a forceful argument that in view of the judgments of the Supreme Court of Canada in Hills v. Attorney General of Canada 48 D.L.R. (4th) 193 and Re Abrahams and A.G. Canada 142 D.L.R. (3d) 1 a "liberal interpretation" should be given to the legislation since the overall purpose of the Act is to make benefits payable to the unemployed.
In my opinion, the Imbeault decision is binding on this Umpire. The legislation is clear and unambiguous. I do not accept the submission that teachers are a special category because of the definition in the Education Act.
In Josephine White et al and Her Majesty The Queen and Antonio Gamboa and Her Majesty The Queen and Janie Harding and Her Majesty The Queen, Mr. Justice Linden delivered the judgment of the Court of Appeal (A-1036-92). On page one the learned Justice commences the judgment as follows:
"These three applications, heard together, raise the same main issue - whether subsection 31(l) of the Unemployment Insurance Act, R.S.C. 1985, c. U-1 disentitles the claimants, who were laid off just before a strike, to receive unemployment insurance benefits during the period of the strike. The section, with the relevant part underlined, reads as follows:
31.(l) 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 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.
Section 2(l) of the Act defines "labour dispute" and reads as follows:
2.(l) In this Act, "labour dispute" means any dispute between employers and employees, or between employees and employees, that is connected with the employment or non-employment, or the terms or conditions of employment, of any persons."
Note that Section 31(l) is set out in full and is the section as it presently is in the Act. In the Court of Appeal decision delivered by Mr. Justice Linden, the claimants had been laid off work before the commencement of the strike. (Emphasis added)
The appellants’ counsel argues that the Board erred in failing to conclude that the work stoppage terminated on or about June 25th, 1993. The submission is that pursuant to Section 49.1(a) and (b) of the Unemployment Insurance Regulations, a work stoppage is terminated when the work force attains 85 percent of its normal level and the level of activities reaches 85 percent of its normal level. I do not agree with the argument that the decision of Mr. Justice Dube in Labbe CUB-15424 assists the appellants.
There are numerous judgments and decisions dealing with work stoppages. Associate Chief Justice Jerome has written, several decisions on this branch of the law. In Robert Wallace CUB - 13738, the learned jurist at page six of the decision, after referring to Attorney General of Canada v. Hurren (A - 942-85) and Christie (CUB 12864), says:
"For either of these decisions to be of benefit to the claimant here, it must be shown that at some specific time he was no longer employed by this employer or connected to this union."
In Russell Hinds (CUB 14613), Walsh J., in a concise and very useful decision, considers the Imbeault and Hurren judgments. He concluded that the Imbeault judgment applied. Mr. Justice Hugessen delivered the judgment of the Court of Appeal (A139-88). The Court of Appeal upheld the decision of Walsh J., in delivering judgment from the Bench. Mr. Justice Hugessen had delivered the judgment of the Court in Hurren.
There may be ambiguity in some of the cases. However, in the cases at bar, I am of the opinion that there is no evidence that the appellants had truly severed their employment relationship. There was no evidence that there was no expectation of a contract renewal. The appellants may well have been vitally concerned with the outcome of the strike. The outcome determined the wages and working considerations of any subsequent contracts.
The appeals of the three claimants are dismissed.
HON. E. J. HOUSTON
UMPIRE
OTTAWA (Ontario)
February 7th, 1996