Judgments

Decision Information

Decision Content

A-166-74
Gladys Petts and the Alberta Teachers' Associa tion (Applicants)
v.
The Umpire constituted under section 92 of the Unemployment Insurance Act, 1971 (Respondent)
Court of Appeal, Jackett C.J., Smith and Prim rose D.JJ: Edmonton, October 28; Ottawa, December 16, 1974.
Judicial review—Decision of Unemployment Insurance Umpire—Whether Regulation 158 is ultra vires the powers given to Commission under section 58(h) of the Unemploy ment Insurance Act, 1971, S.C. 1970-71-72, c. 48—Federal Court Act, s. 28.
Regulation 158, made pursuant to the powers conferred on the Unemployment Insurance Commission by section 58(h) of the Unemployment Insurance Act, 1971, prohibits payment of benefit of any week of unemployment that falls in a "non-teaching" period. This Regulation does not fall within the concept of "imposing additional conditions and terms with respect to the payment and receipt of benefit" nor is it a regulation "restricting the amount or period of benefit". It does not restrict the maximum number of ben efit weeks; it does not restrict the length of any of the benefit periods; and it does not cut down the amounts payable per week. The statute does prohibit payment of benefit in respect of certain periods falling within benefit periods (sections 25 and 44(1)) and section 58(h) does not expressly authorize additional prohibitions of that kind. Regulation 158 is not a valid exercise of the powers con ferred by section 58(h) and is, therefore, ultra vires. The section 28 application is allowed, the decision of the Umpire is set aside and the matter is referred back for re-consideration.
APPLICATION. COUNSEL:
C. P. Clarke for the applicants. T. J. Maloney for respondent.
SOLICITORS:
Field & Owen, Edmonton, for applicants.
Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment delivered in English by
JACKETT C.J.: This is a section 28 application to set aside a decision of an Umpire under the Unemployment Insurance Act, 1971.
It was common ground on the hearing in this Court that if, as the applicant contends, Unem ployment Insurance Regulation 158 is ultra vires the powers given by the statute to the Unem ployment Insurance Commission or is void because it is vague or uncertain in application, the section 28 application is to succeed and the decision in question set aside but, if the regula tion in question is intra vires and fully operative, the section 28 application is to be dismissed.' It is not necessary, therefore, to review the facts or proceedings in the particular case. 2
At the conclusion of the opening argument of counsel for the applicants, counsel for the respondent was told that the Court did not require to hear them on any question except the question whether Regulation 158 falls within the powers conferred by section 58(h) of the Unem ployment Insurance Act, 1971. That is the sole question, therefore, that will be dealt with by these Reasons.
The relevant part of section 58 of the Unem ployment Insurance Act, 1971, reads as follows:
58. The Commission may, with the approval of the Gov ernor in Council, make regulations
(h) imposing additional conditions and terms with respect to the payment and receipt of benefit and restricting the amount or period of benefit, in relation to persons
' No such contention was, apparently, raised before the Umpire but the respondent did not question the applicant's right to raise such contentions in this Court.
2 It also appeared at the hearing that the teacher applicant will probably be granted the relief sought in the proceedings that gave rise to this matter on new proceedings that may be instituted if this section 28 application is dismissed but, as this does not, technically, remove the "lis" between the parties in this case, and as the parties wished to proceed with this section 28 application, we allowed the matter to proceed.
(i) who work or have worked for any part of a year in an industry or occupation in which the Commission determines that there is by custom or pursuant to a relevant contract of employment a repetitive annual period during which no work is performed in that industry or occupation, or 3
Regulation 158 reads as follows:
158. (1) In this section, "teaching" means the occupation of teaching in a pre-elementary, an elementary, an inter mediate or a secondary school, including a technical or vocational school.
(2) The Commission having determined that there is, by custom or pursuant to relevant contracts of employment, a repetitive annual period during which no work is performed in teaching (hereinafter referred to as a "non-teaching peri od"), a claimant who was employed in teaching for any part of his qualifying period shall not be paid benefit for any week of unemployment that falls in a non-teaching period at the school where he is or was last employed unless one of the following conditions is satisfied:
(a) his contract of employment to teach at the school where he was last employed in teaching was terminated four or more weeks prior to the commencement of the non-teaching period at the school;
(b) he was employed in teaching as a casual or substitute teacher only; or
(c) he qualifies to receive benefit because of employment in an occupation other than teaching.
(3) Where benefit is payable to a claimant described in subsection (2) by reason only of the fact that he satisfies the condition set out in paragraph 2(c), the rate of weekly benefit so payable for a week of unemployment that falls in a non-teaching period at the school where he is or was last employed shall not exceed the rate that would be payable if his employment in teaching were disregarded.
As background to considering the ambit of the powers conferred by section 58(h), it is relevant to have in mind the following provi sions of the Unemployment Insurance Act, 1971:
INTERPRETATION
2. (1) In this Act,
(n) "interruption of earnings" means that interruption that occurs in the earnings of an insured person when after a period of employment with an employer the insured person has a lay-off or separation from that employment;
3 There is another sub-paragraph in paragraph (h) that is not relevant to the present problem.
INSURABLE EMPLOYMENT
3. (1) Insurable employment is employment that is not included in excepted employment and is
(a) employment in Canada by one or more employers, under any express or implied contract of service ... .
PART II
UNEMPLOYMENT INSURANCE BENEFITS
16. (1) In this Part,
(c) "initial claim for benefit" means a claim made for the purpose of establishing a claimant's initial benefit period;
(d) "major attachment claimant" means a claimant who has been employed in insurable employment for twenty or more weeks in his qualifying period;
(e) "minor attachment claimant" means a claimant who has been employed in insurable employment for eight or .nore weeks but less than twenty weeks in his qualifying period;
Eligibility
17. (1) Unemployment insurance benefits are payable as provided in this Part to an insured person who qualifies to receive such benefits.
(2) An insured person qualifies to receive benefits under this Act if he
(a) has had eight or more weeks of insurable employment in his qualifying period, and
(b) has had an interruption of earnings from employment.
18. The qualifying period of an insured person is the shorter of
(a) the period of fifty-two weeks that immediately pre cedes the commencement of an initial benefit period under subsection (1) of section 20, and
(b) the period that begins on the commencement date of an immediately preceding initial benefit period and ends with the end of the week preceding the commencement of an initial benefit period under subsection (1) of section 20.
Initial Benefit Period
19. When a person who qualifies under section 17 makes a claim for the purpose of establishing an initial benefit period, an initial benefit period shall be established for him and thereupon benefits are payable to him in accordance with this Part for each week of unemployment of the claimant that falls in the initial benefit period.
20. (1) An initial benefit period begins on the Sunday of the week in which
(a) the interruption of earnings occurs, or
(b) the initial claim for benefit is made, whichever is the later.
(2) The length of an initial benefit period shall be based on the number of weeks of insurable employment of the
claimant in his qualifying period as shown in Table 1 of Schedule A.
(3) An initial benefit period shall not be established for the claimant if a prior initial benefit period or any benefit period that arises from the prior initial benefit period has not terminated.
(6) An initial benefit period is terminated when
(a) the claimant has been paid benefits for the maximum number of weeks for which initial benefits may be paid under section 22, or
(6) the benefit period would otherwise terminate under subsection (2),
whichever is the earlier.
21. (1) A week of unemployment for a claimant is a week in which he does not work a full working week.
(2) A week during which a claimant's contract of service continues and in respect of which he receives or will receive his usual remuneration for a full working week, is not a week of unemployment, notwithstanding that the claimant may be excused from the performance of his normal duties or does not in fact have any duties to perform at that time.
22. The maximum number of weeks for which initial benefits may be paid in an initial benefit period shall be based on the number of weeks of insurable employment of the claimant in his qualifying period as shown in Table 1 of Schedule A.
23. A claimant is not entitled to be paid benefit for a week in an initial benefit period until following the commence ment of that initial benefit period he has served a two week waiting period that begins with a week of unemployment for which benefits would otherwise be payable.
24. (1) The rate of weekly benefit payable to a claimant for a week that falls in an initial benefit period
(a) in the case of a claimant without a dependant is an amount equal to sixty-six and two-thirds per cent of his average weekly insurable earnings in his qualifying weeks or twenty dollars, whichever is the greater, and
25. A claimant is not entitled to be paid benefit for any working day in an initial benefit period for which he fails to prove that he was either
(a) capable of and available for work and unable to obtain suitable employment on that day, or
(b) incapable of work by reason of any prescribed illness, injury or quarantine on that day.
26. (1) If a claimant has earnings in respect of any time that falls in his waiting period, an amount not exceeding
such earnings may, as prescribed, be deducted from the benefits payable in respect of the first three weeks for which benefits are otherwise payable.
(2) If a claimant has earnings in respect of any time that falls in a week of unemployment, that is not in his waiting period, the amount of such earnings that is in excess of an amount equal to twenty-five per cent of the claimant's weekly benefit rate shall be deducted from the benefit payable to the claimant in that week.
27. (1) If a claimant is not entitled to receive benefits for any working day in his waiting period, an amount equal to one-fifth of his weekly rate of benefit for each such working day shall be deducted from the benefits payable in respect of the three weeks described in subsection (1) of section 26.
(2) If a claimant is disentitled or disqualified from receiv ing benefits for any working day in a week of unemploy ment, that is not in his waiting period, an amount equal to one-fifth of his weekly rate of benefit for each such working day shall be deducted from the benefits payable in respect of that week.
29. (1) If the interruption of earnings of a minor attach ment claimant was caused by his becoming incapable of work by reason of illness, injury or quarantine, he is not entitled to receive benefit for the duration of the illness, injury or quarantine.
(2) When benefits are payable to a claimant in respect of unemployment caused by illness and any allowances, monies or other benefits are payable in respect of that illness to the claimant under a provincial law, the benefits payable to the claimant under this Act shall be reduced or eliminated as prescribed.
(3) A claimant is not entitled to receive benefit for any week for which he receives total temporary workmen's compensation for an illness or injury.
(4) If earnings are received by a claimant for any period in a week of unemployment during which he is incapable of work by reason of illness, injury or quarantine, subsection (2) of section 26 does not apply and all such earnings shall be deducted from the benefits payable in respect of that week.
Re-Establishment of Period
32. Immediately following the termination of an initial benefit period under subsection (6) of section 20, that initial benefit period shall be re-established for a further period of ten weeks from the date on which it would have terminated under that section.
33. (1) Subject to this section, benefits are payable for any week of unemployment that falls in the ten week period described in section 32, at the rates and subject to the provisions applicable to the payment of benefits in an initial benefit period.
(2) Notwithstanding paragraph (b) of section 25, a claim ant is not entitled to be paid benefit for any working day in a
week in the re-established portion of his initial benefit period for which he fails to prove that he was capable of and available for work and unable to obtain suitable employment.
Extended Benefit Periods
34. (1) Immediately following the termination otherwise than under subsection (3) of section 33 of a re-established initial benefit period established under section 32 for a claimant, an extended benefit period shall, subject to this section, be established for that claimant and benefits are payable for any week of unemployment that falls in that period.
(2) An extended benefit period begins at the termination of a re-established initial benefit period.
(3) The extended benefit period of a minor attachment claimant who resides in Canada is
(a) nil, if the national rate of unemployment at the end of his re-established initial benefit period is four per cent or less,
(b) four weeks, if the national rate of unemployment at the end of his re-established initial benefit period is more than four per cent but not more than five per cent, or
(c) eight weeks, if the national rate of unemployment at the end of his re-established initial benefit period is more than five per cent.
35. (1) The rate of weekly benefit payable to a claimant for a week that falls in an extended benefit period
(a) in the case of a claimant without a dependant is an amount equal to sixty-six and two-thirds per cent of his average weekly insurable earnings in his qualifying weeks or twenty dollars, whichever is the greater, and
36. (1) Notwithstanding paragraph (b) of section 25, a claimant is not entitled to be paid benefits for any working day in a week in an extended benefit period for which he fails to prove that he was capable of and available for work and unable to obtain suitable employment.
General
38. The maximum number of weeks for which benefit may be paid under this Part to a claimant in respect of an initial benefit period and an extended benefit period that arises from it is fifty-one weeks.
40. (1) A claimant is disqualified from receiving benefits under this Part if without good cause
(a) he refuses or fails to apply for a situation in suitable employment that is vacant, after becoming aware that such situation is vacant or becoming vacant, or fails to accept such a situation after it has been offered to him;
(b) he neglects to avail himself of an opportunity for suitable employment;
(c) he fails to carry out any written direction given to him by an officer of the Commission with a view to assisting him to find suitable employment, if the direction was reasonable having regard both to his circumstances and to the usual means of obtaining that employment;
(d) he fails to attend an interview that the Commission has directed him to attend pursuant to section 107; or
(e) he fails to attend a course of instruction or training that such authority as the Commission designates referred him to for his attendance in order that he become or keep fit for entry into or return to employment.
41. (1) A claimant is disqualified from receiving benefits under this Part if he lost his employment by reason of his own misconduct or if he voluntarily left his employment without just cause.
44. (1) 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 event first occurs.
45. A claimant is not entitled to receive benefit while he is an inmate of any prison or penitentiary or an institution supported wholly or partly out of public funds or, while he is resident, whether temporarily or permanently, out of Canada, except as may otherwise be provided by the regulations.
53. No benefit is payable to any person under this Act unless a claim therefor has been made by him or on his behalf to the Commission, and any information required by the Commission has been supplied, in the prescribed manner.
54. No person is entitled to any benefit under this Act until he proves that
(a) he is qualified to receive benefit,
(b) he meets the requirements entitling him to receive benefit, and
(c) no circumstances or conditions exist that have the effect of disentitling or disqualifying him from receiving benefit.
SCHEDULE A TABLE 1
Maximum number
Weeks of insurable of weeks for
employment in Length of which initial
qualifying initial benefit benefits may
period period be paid
8 to 15 weeks 18 weeks 8 weeks
16 weeks 20 weeks 9 weeks
17 weeks 22 weeks 10 weeks
18 weeks 24 weeks 11 weeks
19 weeks 26 weeks 12 weeks
20 or more weeks 29 weeks 15 weeks
This statute is even more difficult than most modern complicated statutes, in my view, to comprehend. It is replete with special concepts created for the purpose of the statute. Its gener al scheme is almost completely obscured by being buried in detailed provisions.
Benefits are payable under the statute to an insured person who "qualifies to receive such benefits". One of the requirements is that he has had an "interruption of earnings". Another is that he has had a certain amount of "insurable employment" in his "qualifying period". Ben efits are payable in an "initial benefit period", a re-established "initial benefit period" or an "extended benefit period". Each of these con cepts is arbitrarily defined by complicated statu tory rules. Within any one of those periods, a claimant is excluded from benefit unless he proves that he is "capable and available for work and unable to obtain suitable employ ment" or that he is "incapable of work by reason of ... illness ...". There are various statutory "disqualifications". There are detailed rules in the statute as to the amount of benefit payable per week and as to the maximum number of weeks for which benefit may be paid in one of the benefit periods. It is against this background that I have described in a very sketchy and inadequate way that one must decide the ambit of the power to make regula tions conferred on the Commission by section 58(h) and whether Regulation 158 falls within that power.
What Regulation 158 does is prohibit pay ment of benefit for any week of unemployment that falls in a "non-teaching period". It was not contended before us that this falls within the authority to make regulations "imposing addi tional conditions and terms with respect to the payment and receipt of benefit"; 4 and, apart from any concession, it does not seem to me that a prohibition of payment for a particular period can fall within the concept of "further terms and conditions" for payment of benefit in the context of this particular statutory scheme. I have equal difficulty in regarding such prohibi tion as a regulation "restricting the amount or period of benefit". It does not restrict the max imum number of benefit weeks (section 22), it does not restrict the length of any of the benefit periods. It does not cut down the amounts that are payable per week. On the other hand, the statute does prohibit payment of benefit in respect of certain periods falling within benefit periods—see, for example, section 25 and sec tion 44(1)—and section 58(h) does not expressly authorize additional prohibitions of that kind. My conclusion is, therefore, that Regulation 158 is not a valid exercise of the powers conferred by section 58(h) of the Act.
Any regret that I might otherwise have had because I have reached that conclusion is elimi nated by the fact that I have not been able to conceive of any problem in connection with the non-teaching period of teachers that is not ade quately dealt with by section 2(l)(n) and section 21(2). Whether a teacher receives 1/12 of his annual salary at the end of each month of the year, 1/10 at the end of each of ten months of the year, or, as in Alberta, 1/12 at the end of each of nine months and 3/12 at the end of a tenth month, if his contract of service continues
4 At the conclusion of the argument for the respondent, leave was granted to junior counsel for the respondent to file a memorandum re the scheme of the Act. Subsequently a memorandum was filed by senior counsel re-arguing the case and changing his position on this question.
throughout the year, there has been no "lay-off" or "separation from ... employment" giving rise to an "... interruption ... in ... earnings" and he is receiving his "usual remuneration"; and I do not, therefore, conceive of the circum stances in which Regulation 158, or some simi lar provision, is necessary to avoid payment of unemployment benefits to teachers who are not out of work in the ordinary acceptation of that expression.
In my view, the section 28 application should be allowed, the decision of the Umpire set aside, and the matter referred back to the Umpire for re-consideration on the basis that Regulation 158 is not a valid or operative regulation.
* *
SMITH D.J.: I concur.
* * *
PRIMROSE DJ.: 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.