CUB 9397
JUDGMENT OF THE FEDERAL COURT OF APPEAL
Date:
November 20, 1985
Docket:
A-1132-84
Umpire's Decision:
CUB 9397
CORAM :
PRATTE J.
HEALD J.
URIE J.
IN THE MATTER OF an application under section 28 of the Federal Court Act to review and set aside a decision or Order of the Umpire under the Unemployment Insurance Act, 1971;
AND IN THE MATTER OF Section 18(2)(b) of the Unemployment Insurance Act, 1971
BETWEEN :
DOUGLAS GARLAND,
applicant,
-and-
CANADA EMPLOYMENT AND IMMIGRATION COMMISSION,
respondent.
Heard at Calgary on Thursday, October 31, 1985.
REASONS FOR JUDGMENT
(Judgment rendered at Ottawa
on Wednesday, November 20, 1985)
HEALD J.:
This is a section 28 application to review and set aside the decision of an Umpire appointed pursuant to the provisions of the Unemployment Insurance Act, 1971, (the Act).
In that decision the Umpire reversed the unanimous decision of a Board of Referees. The relevant facts are not in dispute and may be shortly stated. The applicant was employed by Digitech Ltd., in Calgary from February of 1979 until January of 1982. On January 14, 1982, he was incarcerated in the Calgary Remand Centre, a correctional institution operated by the Solicitor General of Alberta. He remained there until April 2, 1982, when he was transferred to the Calgary Correctional Centre. On June 25, 1982, he was transferred to the Bow River Correctional Centre where he remained until September 24, 1982. Thus, at all times from January 14, 1982 until September 24, 1982, he remained in direct, physical custody. On September 24, 1982, he was released on Temporary Absence on "... the specific understanding and condition that he reside at his parents' farm near Crossfield, Alberta and work on that farm for the period of his Temporary Absence." The Temporary Absence release enabled the applicant to complete his sentence outside the setting of a correctional institution but under the supervision of a Probation Officer. His sentence was completed on March 24, 1983. The applicant's release on Temporary Absence was subject to some twelve conditions (Case, p. 30). Those conditions required the applicant, inter alia : to remain until the expiry of the Temporary Absence under the authority and supervision of a designated Correctional Services supervisor; to remain in "the immediate designated area" and not leave that area without prior permission from his supervisor and to report in person to a designated correctional institution or police station on specified dates. Failure to comply with any of the twelve conditions enumerated therein rendered the Temporary Absence permit null and void and required the applicant to return to a designated correctional institution or to be declared unlawfully at large therefrom.
This section 28 application was argued on the basis that from January 14, 1982 until September 24, 1982, the applicant was in direct, physical custody in a correctional institution and that from September 24, 1982 until March 24, 1983, he was physically resident and present at his parents' farm near Crossfiled, Alberta. However, there is uncontradicted evidence on the record suggesting that for approximately one and one-half months after September 24, 1982, he was required to return to the correctional institution each night (Case, p. 24).
On August 15, 1983, an application for unemployment insurance benefits was filed with the Commission by the applicant. Pursuant to sections 17 and 18(1) of the Act, the applicant, in order to qualify for benefits, was required to have ten or more weeks of insurable employment during the period from August 15, 1982 to August 13, 1983 (the qualifying period for this applicant). Subsection (2) of section 18 provides :
18. ...
(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,
(b) confined in any gaol, penitentiary of 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.
Since the applicant was unemployed from March 24, 1983 until August 13, 1983, the end of his qualifying period, he was only credited with six weeks out of the total of ten weeks of insurable employment required during the qualifying period and on this basis, the Commission denied his application for benefits. It was the Commission's decision that subsection 18(2) only entitled the applicant to an extension of the qualifying period for those weeks during the qualifying period when he was physically confined to the institution (from August 15, 1982 to September 24, 1982 --a period of six weeks). It was the Commission's interpretation of subsection 18(2) that the applicant was not entitled to credit for the time he was physically present on his parents' farm, pursuant to the Temporary Absence permit referred to supra.
The applicant appealed this decision to a Board of Referees. The Board disagreed with the Commission's interpretation of subsection 18(2) and held that the applicant was "confined in a goal, penitentiary or other similar institution from 24 September, 1982 to 24 March, 1983" within the meaning of subsection 18(2). Accordingly, the Board allowed the applicant's appeal to it and ordered that "appropriate recalculations of insurable weeks" in the applicant's qualifying period should be made.
The Commission then appealed the Board's decision to an Umpire. The Umpire applied the "golden rule" of statutory construction and concluded that the ordinary common sense dictionary meaning of the phrase "... gaol, penitentiary or other similar institution" as employed in subsection 18(2) supra, would not entitle the applicant to include as qualifying weeks the time he spent on his parents' farm during the qualifying period. On this basis, he allowed the Commission's appeal and reversed the decision of the Board.
Accordingly, the narrow issue to be resolved on this section 28 application is the meaning to be ascribed to subsection 18(2)(b) as applied to the facts at bar. Put another way, can this applicant, who was released from a correctional institution under a Temporary Absence permit on condition that he work and reside on his parents' farm, be said to have been confined to a goal, penitentiary or other similar institution during the period that he was physically present and resident on that farm?
The facts in the instant case produce an anomalous and unjust result if the Umpire is correct in his interpretation of subsection 18(2)(b). Counsel for the Commission conceded that if the applicant had remained in a correctional institution for the balance of his sentence -- that is, from September 24, 1982 until March 24, 1983, he would have clearly been eligible for unemployment insurance benefits. However, because of his early physical release on a Temporary Absence permit and notwithstanding the many restrictive conditions imposed upon him, he is not so eligible. Although the record before us contains no information relating to the basis upon which the applicant was granted Temporary Absence, it is a fair inference that he was so treated because of his trustworthiness and good conduct as an Umpire. It seems absurd that he should be penalized in such circumstances.
What then is the proper approach to the interpretation of the phrase "confined in any goal, penitentiary or similar institution" as used in subsection 18(2)(b) of the Act? Dr. Driedger, in Construction of Statutes, 2nd Edition, states at page 87 :
To-day there is only one principle or approach, namely, the words of an Act are to be read in their entire contect and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament.
Chief Justice Culliton in the Mojelski case (1968, Vol. 65, W.W.R. 565 at 570) stated the same principle in more specific terms. It was his opinion that if there is no ambiguity, uncertainty or conflict with any other provision of the Statute under review and provided that there is no repugnance to the general purview of the Statute, the Court must give the words used in the enactment their ordinary and natural meaning. Lord Reid in Westminster Bank Ltd. v. Zang, (1965, A.C. 182 at p. 222) stated the principle in the following manner :
"But no principle of interpretation of statutes is more firmly settled than the rule that the Court must deduce the intention of Parliament from the words used in the Act. If those words are in any way ambiguous -- if they are reasonably capable of more than one meaning -- or if the provision in question is contradicted by or is incompatible with any other provision in the Act, then the Court may depart from the natural meaning of the natural meaning of the words in question. But beyond that we cannot go."
As we have seen, the jurisprudence establishes that if the words are clear and unambiguous they must be followed. However, it is necessary to read the statute containing the words in issue in its entirety as an initial step. Only after that has been done can it be determined with any precision whether or not the words being interpreted are clear and unambiguous. This concept was well stated by Viscount Simonds in the Prince Augustus case (1957, A.C. 436 at p. 463) where he said :
... it must often be difficult to say that any terms are clear and unambiguous until they have been read in their context. That is not to say that the warning is to be disregarded against creating or imagining an ambiguity ... It means only that the elementary rule must be observed that no one should profess to understand any part of a statute or of any other document before he has read the whole of it. Until he has done so he is not entitled to say that it or any part of it is clear and unambiguous.
I proceed now to a consideration of the scheme of the Unemployment Insurance Act, insofar as it pertains to the factual situation in this case having regard to the canons of statutory interpretation enunciated supra. Part II of the Act is entitled "Unemployment Insurance Benefits" and encompasses sections 16 to 58 inclusive of the Act. As noted earlier herein, sections 17 and 18(1) required the applicant to have ten or more weeks of insurable employment in his qualifying period. "Qualifying period" is defined in subsection (1) of section 18 and on these facts the qualifying period was from August 15, 1982 to August 13, 1983. Subsection (2) of section 18 provides that an applicant's qualifying period may be extended in certain specified situations. The situations detailed in subparagraphs (a), (b), (c) and (d) have a common rationale. They all envisage a factual scenario in which the applicant is not available for employment through external circumstances beyond his control. Subparagraph (a) refers to illness, injury, quarantine or pregnancy. Subparagraph (d) relates to a jog-related illness or injury. Subparagraph (c) deals with unavailability because of required attendance at an approved course of instruction. Subparagraph (b), the provision here in issue, addresses those who are confined in a penal institution and thus unavailable for insurable employment. By the enactment of subsection 18(2), Parliament has, in my view, manifested a clear intention to relieve the individuals caught in the circumstances therein enumerated from the unfair consequences of those circumstances -- namely, ineligibility for benefits. The method chosen by Parliament in subsection (2) to prevent such an unjust result, is to provide for an extension of the qualifying period in such circumstances. In the case at bar, this applicant was unavailable for employment not only for the period from January 14, 1982 to September 24, 1982, when he was physically confined but also during the period from September 24, 1982 to March 24, 1983 when he was equally unavailable for employment because of the specific terms of his Temporary Absence permit. Furthermore, on any fair appreciation of the word "institution" in its present context, the applicant was just as institutionalized on the facts of this case as if he were confined to a building for the purpose of confining prisoners. Thus, in my view, since the rationale for subsection (2), as above stated, subsisted in this applicant's case for the entire period beginning on January 14, 1982 and ending on March 24, 1983, I conclude that the applicant is entitled to the full benefit of the extension provided under subsection (2). Furthermore, I think this conclusion is fortified by a consideration of section 45 of the Act and section 55 of the Regulations. Section 45 provides :
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; or
(b) he is not in Canada,
except as may otherwise be prescribed.
Regulation 55 is entitled "Inmates of an institution" and reads :
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.
It should be noted that section 45 of the Act applied to "... an inmate of any prison or similar institution." (Emphasis added). Regulation 55 modifies the effect of section 45 of two conditions are met :
1. the claimant is on some form of temporary release, and
2. he is not prevented from looking for work.
I would observe, initially, that section 45 and Regulation 55 use the word "inmate" in a prison or similar institution whereas subsection 18(2) refers to a person "confined" to a goal, penitentiary or other similar institution. Regulation 55 exempts from the prohibition of section 45, those inmates who have been physically released from prison for the purpose of seeking and accepting employment in the community. When subsection 18(2) is considered along with section 45 and Regulation 55, it is clear to me that Parliament intended that the class of individuals described in subsection 18(2)(b) must necessarily include those prisoners who, while not still remaining in physical confinement, are nevertheless still within the class since they are not yet available for employment. This applicant comes within that class, in my view.
This Court had the occasion to consider the correct interpretation to be given section 45 of the Act and section 55 of the Regulations in the case of The Attorney General of Canada v. Allan Tanner, (F.C.A. A-869-81, CUB 6940A). At page 391, Chief Justice Thurlow said :
The evidence referred to by the Board is not in the record before the Court but it seems clear that the question which the Board addressed was that of whether the respondent was available for work and that the Board found that he was available. The Board does not appear to have addressed or answered the question posed by Regulation 55; that is to say, whether the respondent had been granted temporary absence from prison within the meaning of the Regulation. If they did, it seems that they treated the availability of a temporary absence permit to work as equivalent to a "temporary absence" within the meaning of the Regulation.
In so doing, we think the Board erred in law. In our view, what Regulation 55 contemplates is that the inmate has been granted parole or temporary absence and is not disabled by his incarceration from looking for work. The Regulation also provides that an inmate who may still be in custody but who has been granted a certificate of availability for the purpose of seeking and accepting employment in the community will not be disentitled by section 45 of the Act from receiving benefits. The Board did not find either that the respondent has been grant ed a temporary absence permit or a certificate and it is common ground that he remained in prison. (Emphasis added).
This view of the matter confirms my conclusion expressed supra, that since this applicant was not available for employment during the period of his Temporary Absence, he must be considered to have remained in the class of individuals described in subsection 18(2)(b) during that period.
For these reasons, I conclude that the decision of the Board of Referees was correct and that the Umpire erred in law in reversing the Board's decision. I would allow the section 28 application, set aside the decision of the Umpire and refer the matter back to an Umpire to be dealt with on the basis that the applicant was confined in a goal, penitentiary or other similar institution from September 24, 1982 to March 24, 1983.
"Darrel V. Heald"
J.F.C.C.
"I agree.
John J. Urie, J."
PRATTE J.:
I have read the reasons for judgment prepared by my brother Heald and regret not to be able to share his opinion.
The only question to be resolved is whether the applicant was "confined in [a] goal, penitentiary or other similar institution" within the meaning of paragraph 18(2)(b) of the Unemployment Insurance Act, 1971, when, after his release from prison under a Temporary Absence Permit, he resided and worked at his parents' farm. In my opinion, he was not. As I read it, paragraph 18(2)(b) is clear and admits of no other interpretation. While I am ready to concede that the applicant was, in view of the terms of the Absence Permit, confined in his parents' farm, that farm was clearly not a "goal, penitentiary or other similar institution".
I would, therefore, dismiss the application.
"Louis Pratte"
J.F.C.C.