A-505-75
Attorney General of Canada (Applicant)
v.
The Umpire constituted under section 92 of the
Unemployment Insurance Act (Respondent)
Court of Appeal, Pratte, Heald and Ryan JJ.—
Ottawa, February 5 and 6, 1976.
Judicial review—Unemployment insurance—Whether Um
pire erred in deciding that Unemployment Insurance Com
mission had no authority to enact section 150 of the Regula-
tions—Unemployment Insurance Act, S.C. 1970-71-72, c. 48,
ss. 2(1)(u), 20(4), 58(y) and Regulations s. 150.
Applicant attacks the decision of an Umpire appointed under
section 92 of the Unemployment Insurance Act, 1971, alleging
that the Umpire erred in deciding that the Unemployment
Insurance Commission had no authority under the Act to enact
section 150 of the Regulations.
Held, the application is dismissed. Section 150(2) and (3) of
the Regulations exceeds the Commission's power to make
regulations prescribing the conditions referred to in section
20(4). The provisions in Regulation 150(2) and (3) do not
prescribe conditions; they fix a maximum period for which a
claim may be antedated, i.e. they impose a limitation on the
power, unlimited under the Act, to antedate a claim. The Act
authorizes the Commission to prescribe things that must exist
or be done before the power to antedate is exercised, not to
limit the power to antedate a claim which meets the prescribed
conditions.
APPLICATION for judicial review.
COUNSEL:
E. R. Sojonky for applicant.
M. W. Wright, Q.C., for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Soloway, Wright, Houston, Greenberg,
O'Grady & Morin, Ottawa, for respondent.
The following are the reasons for judgment of
the Court delivered orally in English by
PRATTE J.: This section 28 application is direct
ed against the decision of an Umpire under the
Unemployment Insurance Act, 1971, allowing the
appeal of Mr. William Thauberger from a decision
of a Board of Referees and directing that Mr.
Thauberger's claim for benefit be antedated Octo-
ber 11, 1971.
The applicant's only ground of attack is that the
Umpire erred in deciding that the Unemployment
Insurance Commission had no authority, under the
Unemployment Insurance Act, 1971, to enact
regulation 150 of the Unemployment Insurance
Regulations.
The relevant provisions of the Act and Regula
tions read as follows:
Unemployment Insurance Act, 1971:
2. (1) In this Act,
(u) "prescribed" means prescribed by regulation;
20. (4) When a claimant makes an initial claim for benefit
on a day later than the day he was first qualified to make the
claim and shows good cause for his delay, the claim may,
subject to prescribed conditions, be regarded as having been
made on a day earlier than the day on which it was actually
made.
58. The Commission may, with the approval of the Governor
in Council, make regulations
(y) prescribing anything that by this Act is to be prescribed
by regulations.
Unemployment Insurance Regulations:
150. (1) An initial claim for benefit may be regarded as
having been made on a day prior to the day on which it was
actually made if the claimant proves that
(a) on the prior day he fulfilled, in all respects, the condi
tions of entitlement to benefit and was in a position to furnish
proof thereof; and
(b) throughout the whole period between that prior day and
the day he made the claim he had good cause for delay in
making the claim.
(2) Subject to subsection (3), no initial claim for benefit
shall be regarded as having been made on a day that is more
than thirteen weeks prior to the day on which it was made.
(3) An initial claim for benefit may be regarded as having
been made on a day that is more than thirteen and not more
than twenty-six weeks prior to the day on which it was made if
the claimant proves that subsequent to the prior day he was
incapable of work by reason of sickness, injury or quarantine.
Mr. Wright, who appeared on behalf of Mr.
Thauberger, did not try to support the reasons
given by the Umpire for his decision. They are
obviously based on a misreading of the Act. He did
not try, either, to support the Umpire's conclusion
that the whole of regulation 150 is ultra vires. Mr.
Wright did not challenge the validity of regulation
150(1). He submitted, however, that regulation
150(2) and (3) exceeded the Commission's power
to make regulations prescribing the conditions
referred to in section 20(4). We are in agreement
with that submission for reasons, however, that are
different from those advanced by Mr. Wright.
Sections 2(1)(u), 58(y) and 20(4) of the Act
give the Commission the power to prescribe the
conditions that must be met in order that a "late"
claim may be regarded as having been made on a
day earlier than the day on which it was actually
made. If the provisions contained in regulation
150(2) and (3) imposed conditions of that kind,
their validity, in our view, could not be doubted.
But such is not the case. Mr. Wright's submission
was that those provisions did not prescribe condi
tions of the kind contemplated by section 20(4) of
the Act. We go further: in our opinion, those
provisions do not prescribe conditions. They fix a
maximum period for which a claim may be
antedated. This is not the prescription of a condi
tion but, rather, the imposition of a limitation on
the power, unlimited under the Act, to antedate a
claim. The Act, in our view, authorizes the Com
mission to prescribe the things that must exist or
be done before the power to antedate a claim is
exercised; it does not empower the Commission to
limit, as it has done in regulation 150(2) and (3),
the power to antedate a claim meeting the pre
scribed conditions.
For these reasons, the application will be
dismissed.
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.