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A-90-81
Attorney General of Canada (Applicant)
v.
Gary Schoen (Respondent)
Court of Appeal, Pratte and Urie JJ. and Verchere D.J.—Vancouver, October 8; Ottawa, October 28,
1981.
Judicial review — Unemployment insurance — Application to review and set aside the Umpire's decision that the loss of part-time employment by reason of a strike did not disentitle the claimant from receiving benefits in respect of his full-time employment which he lost due to a work shortage in July 1978 — Respondent worked part-time until October 1978 at which time he lost that job due to a labour dispute — Respondent received full benefits from that time until the end of December 1978 — Unemployment Insurance Commission held that he had been disentitled under subs. 44(1) of the Unemployment Insurance Act, 1971 from receiving benefits after the end of October — Whether the Umpire erred in holding that under subs. 44(1) the claimant, after losing a full-time job because of a work shortage, and after losing a part-time job, which he held while receiving unemployment insurance benefits, due to a labour dispute was not disentitled from receiving benefits in respect of his full-time employment — Application is allowed — Unemployment Insurance Act, 1971, S.C. 1970-71-72, c. 48, ss. 16(1)(a), 27(2), 44(1) — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
APPLICATION for judicial review. COUNSEL:
P. Partridge for applicant.
D. J. Egleston for respondent. SOLICITORS:
Deputy Attorney General of Canada for applicant.
D. J. Egleston, Vancouver, for respondent.
The following are the reasons for judgment rendered in English by
PRATTE J.: This is a section 28 application to review and set aside a decision of an Umpire under Part V of the Unemployment Insurance Act, 1971, S.C. 1970-71-72, c. 48.
From February 24, 1978, to July 7, 1978, the respondent was employed on a full-time basis by Rayonier Canada. He lost that job by reason of a shortage of work and he thereafter worked part time for Pacific Press Ltd., a company which had employed him during the weekends since 1974. On July 27, 1978, as a consequence of the termination of his full-time employment with Rayonier Canada, he made an initial claim for benefit to the Unemployment Insurance Commission which, pur suant to section 19 of the Act, established for him a benefit period commencing on July 23, 1978. The respondent, however, did not commence to receive benefits until September 9, 1978, since, before that date, the income that he derived from his part-time employment at Pacific Press Ltd. and from other casual jobs exceeded his benefit rate. From September 9, 1978 to the end of October 1978, he received reduced benefits to allow for his income from his part-time job. At the end of October, he lost that job and was thereafter con tinuously unemployed until the end of December 1978. During that last period, he received the full benefits. The Commission later determined that he had lost his part-time job at Pacific Press Ltd. as a result of a labour dispute and that, as a conse quence, he had been disentitled under subsection 44(1) of the Act' from receiving the benefits that had been paid to him after the end of October. The respondent appealed from that decision to a Board of Referees. His appeal was dismissed. He then appealed to an Umpire. The Umpire allowed the appeal and referred the matter back to the Com mission to be dealt with on the basis that the appellant was not disentitled from benefits in respect of his employment by Rayonier Canada by reason of the labour dispute at Pacific Press. That is the decision against which this application is directed.
' That subsection reads as follows:
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.
It is common ground, as it was before the Umpire, that the respondent lost his part-time employment at Pacific Press "by reason of a stop page of work attributable to a labour dispute at the ... premises at which he was employed" and that he cannot invoke the benefit of subsection 44(2). It follows that the sole question to be determined by the Umpire was whether, under subsection 44(1), a claimant, who, after losing a full-time job because of a shortage of work, held a part-time job while receiving unemployment insur ance benefits, was disentitled from receiving those benefits if he lost his part-time job by reason of a strike at the workshop where he was employed. As I have already indicated, the Umpire answered that question by saying that, in those circum stances, the loss of the part-time employment did not disentitle the claimant from receiving benefits in respect of his full-time employment which had been previously terminated by reason of a shortage of work.
I have difficulty understanding the learned Umpire's decision. Under the Act, benefits are payable to persons who are qualified and entitled to receive them when those persons are unem ployed; benefits are not payable in respect of the various employments that a person may have held in the past. It is true, in a sense, that the claimant who is entitled to receive benefits has earned that right by previously working in insurable employ ment since, in order to qualify to receive benefits, a person must have been employed in insurable employment for a certain number of weeks and since, also, the rate of benefit payable to a claim ant is determined by reference to his earnings during those weeks. However, it does not follow that the benefits that are payable to a claimant are payable in respect of those weeks of employment; they are payable exclusively in respect of the weeks during which he is unemployed. When, therefore, unemployment insurance benefits are paid to a claimant who held, either concurrently or successively, many different jobs, the Act does not provide for the division and allotment of the ben efits between the various jobs. In so far as the decision under attack was based on the incorrect assumption that such a division and allotment were possible under the Act, it should, in my view, be set aside.
There is perhaps another way to explain the Umpire's decision. While he did not say so, he may have read subsection 44(1) as disentitling a claim ant from receiving only the benefits or the portion of the benefits that, if the subsection did not exist, would become payable as a result of the loss of employment attributable to a labour dispute. In other words, according to that interpretation, the subsection would not disentitle a claimant, whose employment is terminated by a labour dispute, from receiving the benefits to which he would have been entitled if that employment had not been terminated; it would merely disentitle him from receiving additional benefits as a consequence of the termination of his employment by reason of a labour dispute. That interpretation would certainly produce fair results. I have nevertheless reached the conclusion that it must be rejected. Under the Act, when a person is, by reason of section 44, disentitled from receiving benefits for a day or a period, that person thereby loses his right to receive any benefit for that day or period. This, in my view, flows from paragraph 16(1)(a) and sub section 27(2). 2 It follows that, in my opinion, subsection 44(1) cannot be interpreted so as to disentitle a claimant of only a part of the benefits that he would otherwise have the right to receive.
Counsel for the respondent conceded in argu ment that the decision of the Umpire was wrong inasmuch as it held that the respondent was dis- entitled from receiving benefits in respect of his part-time employment at Pacific Press. He argued that subsection 44(1) should be interpreted so as to have no application at all in this case. In his view, the respondent was not subject to any disentitle- ment by reason of subsection 44(1). However, when he was asked to state the interpretation that should be given to the subsection in order to
2 Those provisions read as follows:
16. (1) In this Part,
(a) "disentitled" means to be not entitled under section 23,
25, 29, 36, 44, 45, 46, 54 or 55 or under a regulation;
27....
(2) If a claimant is disentitled or disqualified from receiv ing benefits for any working day in a week of unemployment, 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.
achieve that result, he could not give any satisfac tory answer. He simply suggested, as I understood him, that the subsection should not apply to per sons having more than one employment, that it should not apply to part-time employment, and, also, that it should only apply to the loss of the last employment before the establishment of a benefit period. I cannot accept any of those suggestions. If Parliament had intended the subsection to apply only to the loss of the last employment before the establishment of a benefit period, it would have said so as it has in section 41. Moreover, not to apply the subsection to the loss of an employment during a benefit period would be difficult to recon cile with the obvious purpose of that provision not to permit that the funds of the Unemployment Insurance Commission be used to subsidize a party to a labour dispute. As to the suggestions that the subsection be read so as not to apply to persons having more than one employment and to persons working part-time, I fail to see why the normal meaning of the words used in the subsection should be thus restricted.
In my opinion, therefore, subsection 44(1) must be given its natural meaning even if it has the unfortunate effect, in this case, of disentitling the respondent from receiving any benefit under the Act. In spite of my desire to reach another conclu sion, I cannot think of any valid reason for not following the decision rendered in Giroux v. Attorney General of Canada (May 1, 1980, Court File No. A-6-80) where this Court dismissed with out reasons a section 28 application directed against a decision of Mr. Justice Marceau who, as an Umpire, held (CUB 5207A, December 5, 1979) that, under subsection 44(1), the recipient of unemployment insurance benefits, who had lost a part-time job for the reason mentioned in the subsection, had been thereby disentitled from receiving any benefits under the Act.
I would, for those reasons, allow the application, set aside the decision of the Umpire and refer the matter back for decision on the basis that under subsection 44(1) a claimant, who, after losing a full-time job by reason of a shortage of work, holds a part-time job while he is receiving unemploy ment insurance benefits, is disentitled from receiv-
ing any benefit under the Act if he loses that part-time job by reason of a stoppage of work attributable to a labour dispute at the workshop where he is employed.
* * *
URIE J.: I agree.
* * *
VERCHERE D.J.: I agree.
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