Pursuant to subsection 36(1) of the Employment Insurance Act, a disentitlement to benefits will be removed when either the work stoppage terminates or, the claimant becomes regularly engaged elsewhere in insurable employment.
Subsection 36(1) Employment Insurance Act
Section 53 of the Employment Insurance Regulations provide that a stoppage of work is terminated when both the work force and the production level reach eighty-five percent (85%) of their normal level. The concept of the end of a strike should not be confused with termination of a stoppage of work.
Section 53 Employment Insurance Regulations
Rasmussen v. Canada (A.G.), October 23, 1996, F.C.J. No. 1526 (F.C.A.) A-647-95
The work stoppage may also terminate, even where the 85% level is not obtained, where the circumstances described in subsection 53(2) of the Employment Insurance Regulations exist.
Subsection 53(2) Employment Insurance Regulations
The question of whether a work stoppage has terminated is a question of fact. It does not terminate simply because the employer has managed to continue or resume its operation by resorting to temporary, exceptional or extraordinary measures.
Canada (A.G.) v. Simoneau, [1982] 1 F.C. 469 (F.C.A.) A-143-80
In accordance with paragraph 36(1)(b) of the Employment Insurance Act, a disentitlement may be removed where a claimant becomes "regularly engaged elsewhere in insurable employment".
Paragraph 36(1)(b) Employment Insurance Act
In order to be regularly engaged, it is not enough that a claimant simply be hired. The claimant must work in the new occupation and do so regularly. Therefore, a claimant who is hired to work in accordance with a regular work schedule and who begins that work, is regularly engaged. The word "regularly" is to be contrasted with "casual" or "intermittent". It requires a fixed pattern, rather than a fixed period, of employment. It is not the duration of the hiring which is relevant but the regularity of the work schedule. Therefore, the employment need not be long-term. It may only be for the duration of the strike provided it is "regular". A regular work schedule "implies that the hours of work were distributed at equal, or more or less equal, intervals and reasonably predictable frequencies".
Abrahams v. Canada (A.G.) , [1983] 1 S.C.R. 2 (S.C.C.) File no. 16698 A-872-80
C.E.I.C. v. Roy, [1986] 1 F.C. 193 (F.C.A.) A-1198-84; A-1199-84; A-1201-84
Malo v. C.E.I.C. (1986), F.C.J. No. 251 (F.C.A.) A-765-85
Canada (A.G.) v. McKenzie, June 2, 1993, F.C.J. No. 526 (F.C.A.) A-1460-92
However, if the employment is for so short a period of time that it is impossible to determine the regularity of the work schedule then it is not regular employment but rather "casual employment".
C.E.I.C. v. Roy, [1986] 1 F.C. 193 (F.C.A.) A-1198-84; A-1199-84; A-1201-84
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2009-04-28