Judgments

Decision Information

Decision Content

Robin A. McPherson (Applicant)
v.
Attorney General of Canada (Respondent)
Court of Appeal, Thurlow J., Sheppard and Bastin D.JJ.—Vancouver, B.C., May 1 and 3, 1973.
Unemployment insurance—Leaving employment because of pregnancy—Period of entitlement—Unemployment Insur ance Act, s. 30(2).
Applicant left her employment on August 13, 1971, because of illness due to pregnancy. Her expected date of confinement was February 3, 1972. She was paid unemploy ment insurance benefits for 15 weeks commencing August 15, 1971, but was denied benefits for the 10 weeks follow ing, to which she claimed entitlement.
Held, affirming the Umpire, under section 30(2) of the Unemployment Insurance Act, she was not entitled to ben efits for those 10 weeks.
JUDICIAL review. COUNSEL:
David W. Mossop for applicant.
G. C. Carruthers and W. T. Begg for respondent.
SOLICITORS:
D. W. Mossop, Vancouver, for applicant.
Deputy Attorney General of Canada for respondent.
THURLOW J.—This is an application under section 28 of the Federal Court Act to review and set aside as erroneous in law a decision of the Umpire under the Unemployment Insurance Act which upheld the denial by the Board of Referees of the applicant's claim of entitlement to unemployment insurance benefit for the ten weeks' period commencing on December 12, 1971.
The applicant left her employment on August 13, 1971 because she was pregnant and ill in consequence. Her expected date of confinement was February 3rd, 1972. She applied for and was paid benefits under the Unemployment
Insurance Act for a period of fifteen weeks, from August 15th, 1971 but her entitlement to benefits for the ten weeks' period in question, which followed, was denied on the ground that it did not fall within what the Act refers to as her "initial benefit period."
Speaking generally the scheme of the Unem ployment Insurance Act is to provide a system of entitlement to benefits for defined periods for interruption of earnings from employment for persons who are capable and available for employment but who are unable to obtain suit able employment. The scheme also includes provisions for like benefits, though for a more limited period, for interruption of earnings from employment for persons who become incapable of work by reason of any prescribed illness, injury or quarantine.
For this purpose under section 160 of Regula tions made on July 6, 1971 it was prescribed that "Illness, injury or quarantine" is any ill ness, injury or quarantine that renders a claim ant incapable of performing duties or work.
In the scheme of the Act the extent of entitle ment of an unemployed person who qualifies for benefits is ascertained by reference to an "initial benefit period" which is established for him by reference to sections 19 and 20 and which, again speaking generally, commences with the Sunday of the week in which an inter ruption of earnings occurs or in which his initial claim for benefit is made and continues for a period which depends on the number of weeks of insurable employment the claimant has had in his qualifying period. In the case of the appli cant the number of weeks of qualifying employ ment was sufficient to make her initial benefit period 29 weeks but the maximum number of weeks for which initial benefits could be paid to her in her initial benefit period was fifteen and under section 20(6) of the Act the initial benefit period itself terminated when the applicant had been paid benefit for the maximum number of fifteen weeks for which she was entitled to be paid in that period, that is to say on December 11th, 1971.
The scheme of the Act further provides for the immediate re-establishment of the initial
benefit period for a further ten weeks during which a person who is capable and available for work but unable to obtain suitable employment may be entitled to benefits but the statute does not provide for such benefits to be paid in the re-established period to persons who are inca pable of work by reason of a prescribed illness, injury or quarantine.
With respect to an interruption of earnings due to pregnancy section 46 provides that:
46. Subject to section 30, a claimant is not entitled to receive benefit during the period that commences eight weeks before the week in which her confinement for preg nancy is expected and terminates six weeks after the week in which her confinement occurs.
This, as I read it, has the effect of confining the benefits payable in respect of the period mentioned to those referred to in section 30, regardless of what may be the cause of an interruption of earnings in that period.
In this context section 30(2) makes the fol lowing provision for benefits for a major attach ment claimant.
30. (2) Benefits under this section are payable for each week of unemployment in
(a) the fifteen week period that begins eight weeks before the week in which her confinement is expected, or
(b) the period that begins eight weeks before the week in which her confinement is expected and ends six weeks after the week in which her confinement occurs,
whichever is the shorter, if such a week falls in her initial benefit period established pursuant to section 20 exclusive of any re-established period under section 32.
The precise point on which leave was given to the applicant to appeal to the Umpire and which was raised again on this application turns on the interpretation of this provision. The applicant had received benefits for fourteen weeks in her initial benefit period when the period referred to in section 46 began. She thereupon became en titled to the benefits provided by section 30(2). Her initial benefit period came to an end when she had been paid for one week under section 30(2) because that completed the fifteen weeks for which benefits might be paid in that period. The question is whether the proviso at the end of section 30(2) disentitles her to further ben efits for the re-established initial benefit period consisting of the next ten weeks.
The construction put forward by counsel for the applicant, as I understood it, was that the words "such a week" in section 30(2) refer to a week of the fifteen week period defined in (a) or a week of the period defined in (b) and that the proviso means only that if such a week falls in the initial benefit period referred to, the shorter of the two periods is to be applicable and that whether the proviso applies or not to require the shorter period, the applicant is en titled to benefit for all such weeks as fall within her re-established initial benefit period.
I am in agreement with the view of the learned Umpire that section 30(2) does not bear this interpretation. In my opinion the expression "such a week" refers to a "week of unemploy ment" mentioned in the opening part of the subsection and the proviso confines the period in which benefits may be paid under the subsec tion to the initial benefit period as therein described. So construed the subsection is in harmony with the provisions for limiting the period of benefits for interruption of earnings in cases of prescribed illness, injury and quaran tine to the same initial benefit period. Otherwise construed the subsection is capable of giving substantially longer periods of benefit in cases of pregnancy than in any of these instances.
Grammatically, it seems to me to be possible to read the English language version of section 30(2) as I have done or to read it as meaning that if any week of unemployment falls within the initial benefit period as referred to, the claimant is entitled to benefit for the whole of the applicable (a) or (b) period but I think this too must be rejected, first, because it would not harmonize with the other provisions for ben efits, secondly, because it would set up a basis for entitlement or disqualification for which no reason or basis is apparent and, finally, because it is a construction to which the French lang uage version of the statute, as I read it, is not open.
It was also argued that the proviso in section 30(2) was exclusionary and in consequence, in accordance with principles of construction of exclusionary clauses in insurance policies, should be construed strictly against the Crown. In my opinion there is no basis for such a contention. The statute is not a policy of insur ance drawn and tendered by an insurance com pany and it must be interpreted as any other statute according to recognized canons of statu tory construction. Moreover as I read it section 30(2) as a whole is not an exclusionary provi sion but one which confers rights and the prob lem is simply one of determining from the lan guage used the extent of the rights so conferred.
I would dismiss the application.
* * *
SHEPPARD D.J.—I concur.
* * *
BASTIN D.J.—I concur.
 You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.