(Delivered from the Bench at Toronto,
on Friday, March 27, 1992)
JUDGMENT OF THE FEDERAL COURT OF APPEAL
Date:
March 27, 1992
Docket:
A-762-90
Umpire's Decision:
CUB 16027A
CORAM:
THE HONOURABLE MR. JUSTICE STONE
THE HONOURABLE MR. JUSTICE MacGUIGAN
THE HONOURABLE MR. JUSTICE LINDEN
IN THE MATTER OF: the Unemployment Insurance Act, 1971
AND IN THE MATTER OF: a claim for benefit
by George Keagan et alAND IN THE MATTER OF: an appeal to the Umpire by the claimants
from a decision of the Board of Referees given at
St. Catharines, Ontario on September 2, 1987AND IN THE MATTER OF: an application by the Attorney General of Canada pursuant to the provisions of section 28 of the Federal Court Act and Court no. A-100-89 whereby the Federal Court of Appeal, on June 29, 1990, unanimously set aside the Umpire's decision of December 12, 1988 and referred it back to the Umpire
AND IN THE MATTER OF: the decision on reference back from the
Federal Court of Appeal of the Umpire dated August 8, 1990
BETWEEN:
GEORGE KEAGAN, BLAINE BANNAR, JAMES ECKHARDT,
SHELLEY MORRISH, KEVIN REID, KEVIN SCOTT,
ROBERT STAVENOW, GERRY WARD, RAYMOND WHEELER,
BRIAN PRICE, NIKKI CALDWELL, SCOTT BELYEA,
LIL McKIM, AND GARY MOLLINS,
applicants,
- and -
THE ATTORNEY GENERAL OF CANADA,
respondent.
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto,
on Friday, March 27, 1992)
MacGUIGAN J.A.:
This s. 28 review is a follow-up to our decisions in Attorney General of Canada v. Kelly et al., A-100-89, A-101-89, A-102-89, A-103-89, A-104-89, A-105-89, A-106-89, A-268-89, A-286-89, decided June 29, 1990, which returned the matters in question to the umpire for reconsideration on the basis that the leave pay provisions of the collective agreement are irrelevant for the purpose of applying s. 37(3) and 42(4) of the Unemployment Insurance Regulations ("the Regulations") 1 s. 37(3) and 42(4) of the Unemployment Insurance Regulations ( to the facts of the various cases.
When these matters were returned to the umpire, after reciting the gist of the Appeal decision common to all the cases, the entirety of his reasons for decision is as follows (Case at 403):
In light of this decision, the claimant's appeal from the Board of Referees' decision of September 2, 1987, is dismissed. [Emphasis added]
It is clear to us from these sparse words that the learned Umpire did not, as he should have done reconsider the matter on the basis of our decision, but rather took the view that our decision alone resolved all the issues. In so doing, in our view he fell into error.
In particular, the Umpire did not direct his mind to whether there is any provision for leave days in the relevant collective agreement. Desjardins J.A. had this to say about the issue in Kelly, supra at 23-4:
The collective agreement does not provide for accumulated leave but only for "accumulated leave pay" (Article XVII), for "vacation" and "vacation pay" (Article XVI). My reasoning here is however the same as previously stated.
The Umpire, in my view, confused accumulated leave pay and leave day ("vacations"). Article XVI of the collective agreement was the only governing provision for the purposes of applying subsections 37(3) and 42(4) of the Regulations.
She directed the Umpire's attention to Article XVI of the Collective Agreement, which deals only with vacations and vacation pay. The Umpire in his original reasons for decision accepted a convoluted analysis by the Unemployment Insurance Commission with the aim of converting vacation days into leave days. He was undoubtedly brought to this point by his view that "the Canada Labour Code...makes provisions for a lay-day plan" (Case at 305), which he seems to have interpreted as a mandatory provision. In fact, s. 12(1) of the East Coast and Great Lakes Shipping Employers Hours of Work Regulations, 1985, SOR/86-257, February 27, 1986, provides that an employer may adopt a lay-day (or "leave-day") plan for employment on board a ship. It is our view that Article XVI should not be construed as providing for leave days, and that no such indirect conclusion should be drawn from Article XVII, as contended by the respondent. It would seem to us that any allocation of time off for the employees in question by the Unemployment Insurance Commission ought to be dealt with under the vacation provisions of the Act and Regulations.
The s. 28 application will therefore be allowed, the decision of the Umpire of August 8, 1990, set aside, and the matter returned to him for reconsideration on the basis that the collective Agreement contains no provisions to which subsections 37(3) and 42(4) of the Unemployment Insurance Regulations are applicable.
Mark R. MacGuigan
JUDGE