A-970-82
Phyllis Anderson (Applicant)
v.
Attorney General of Canada and Canada Employ
ment and Immigration Commission (Respondents)
Court of Appeal, Heald, Urie, Le Dain JJ.—
Toronto, March 14 and 16, 1983.
Unemployment insurance — Teacher, incapable of work
because of illness, claiming benefits for "non-teaching period"
— Whether disentitling provision, s. 46.1 of Regulations, valid
— Court of Appeal decision declaring predecessor Regulation
ultra vires applies to present Regulation as not differing in
substance — Application for judicial review allowed — Unem
ployment Insurance Act, 1971, S.C. 1970-71-72, c. 48, s.
58(h)(i) — Unemployment Insurance Regulations, C.R.C., c.
1576, s. 46.1 (as added by SOR/80-536) — Unemployment
Insurance Regulations, SOR/55-392, s. 158 (rep. and sub.
SOR/73-352) — Federal Court Act, R.S.C. 1970 (2nd Supp.),
c. 10, s. 28.
Due to illness, the applicant, a teacher under contract of
employment, was unable to work for the last four months of the
school year. She was entitled to unemployment insurance ben
efits for the latter part of that period but her claim for benefit
for the months of July and August was disallowed pursuant to
subsection 46.1(3) of the Unemployment Insurance Regula
tions. The applicant was on leave of absence from June 22 to
August 31. Her contract was not terminated and she was
expected to return to work on September 1. An Umpire under
the Unemployment Insurance Act, 1971 allowed the appeal of
the respondent Commission from a unanimous decision of a
Board of Referees that the applicant was entitled to benefits
during the non-teaching period.
Held, the section 28 application should be allowed. In Petts
et al. v. The Umpire (Unemployment Insurance), [1974] 2 F.C.
225, the Court of Appeal found section 158 of the old Regula
tions ultra vires the regulation-making powers vested in the
Commission under paragraph 58(h) of the Act. Section 46.1
was adopted in order to remedy the defect pointed out in Petts.
The changes in the language, however, are purely cosmetic and
there is no difference in substance between the two provisions.
Section 46.1 is therefore also ultra vires for the reasons given in
Petts. A prohibition of payment for a particular period is
something quite different from "additional conditions and
terms with respect to the payment and receipt of benefit" and
"restricting the amount or period of benefit" as authorized by
subparagraph 58(h)(i).
CASE JUDICIALLY CONSIDERED
APPLIED:
Petts et al. v. The Umpire (Unemployment Insurance),
[ 1974] 2 F.C. 225.
COUNSEL:
Maurice A. Green for the applicant.
Lois Lehmann for the respondents.
SOLICITORS:
Golden, Green & Starkman, Toronto, for the
applicant.
Deputy Attorney General of Canada for the
respondents.
The following are the reasons for judgment
rendered in English by
HEALD J.: This is a section 28 application to
review and set aside the decision of an Umpire
under the Unemployment Insurance Act, 1971
[S.C. 1970-71-72, c. 48] whereby he allowed the
appeal of the respondent Commission from a
unanimous decision of a Board of Referees that
the applicant was entitled to unemployment insur
ance benefits during the period June 28, 1981 to
August 29, 1981. The relevant facts are not in
dispute. The claimant, at all material times, was a
school teacher employed by the London Ontario
Board of Education under a contract of employ
ment. Her last day worked was March 6, 1981.
She entered hospital on March 9, 1981 for treat
ment of Crohn's disease, underwent surgery and
treatment, and remained in the hospital for six
weeks. Her salary under her contract, including
paid sick leave, ceased on March 20, 1981. She
was then paid wage loss benefits under a wage loss
plan until June 22. On June 3 she applied for
unemployment insurance benefits. Her claim was
allowed and she was held entitled to receive sick
ness benefits for the period June 14 to June 27,
inclusive. However her claim for benefit for the
months of July and August was disallowed pursu
ant to subsection 46.1(3) of the Unemployment
Insurance Regulations [C.R.C., c. 1576, as added
by SOR/80-536]. The claimant was on leave of
absence without pay for the period June 22 to
August 31, inclusive. Her contract was not ter
minated and she was expected to return to work on
September 1.
It is common ground that if subsection 46.1(3),
which came into effect on July 11, 1980, is valid,
the applicant herein was properly disentitled from
receiving benefits during the non-teaching period,
namely June 28 to August 31 inclusive. Thus the
validity of Regulation 46.1 is the sole issue in this
application.
Section 46.1 reads as follows:
46.1 (1) In this section,
"teaching" means the occupation of teaching in pre-elemen
tary, an elementary, an intermediate or secondary school,
including a technical or vocational school;
"non-teaching period" means the period described in subsection
(2).
(2) The Commission has 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.
(3) In addition to the requirements imposed by Part II of the
Act, a claimant who was employed in teaching for any part of
his qualifying period shall, before he is entitled to receive
benefit for any week of unemployment that falls in his non-
teaching period, fulfil one or more of the following conditions:
(a) his contract of employment in teaching was terminated
on or before the commencement of the non-teaching period;
(b) he was employed in teaching as a casual or substitute
teacher only; and
(c) he qualifies to receive benefit because of employment in
an occupation other than teaching.
(4) Where benefit is only payable to a claimant described in
subsection (3) by reason of the fact that he fulfils the condition
set out in paragraph (3)(c), the rate of weekly benefit so
payable for a week of unemployment that falls within the
non-teaching period shall equal the rate that is payable without
regard to his employment in teaching.
(5) Notwithstanding subsection (3), a claimant who fulfils
the requirements of subsection 30(1) of the Act is entitled to be
paid benefit pursuant to section 30 of the Act during the
non-teaching period.
It is also common ground that the authority to
make the regulation, if it exists at all, is to be
found in subparagraph 58(h)(i) of the Act:
58. The Commission may, with the approval of the Governor
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
(i) who work or have worked for any part of a year in an
industry or occupation in which the Commission deter
mines 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
The Umpire observed that the predecessor regu
lation to Regulation 46.1 was Regulation 158
[SOR/55-392, rep. and sub. SOR/73-352] and
that this Court had declared that Regulation ultra
vires in the case of Petts et al. v. The Umpire
(Unemployment Insurance).' He also said, (cor-
rectly in my view) that subsection 158(2) of the
old Regulations covered the same ground as that
dealt with in subsections 46.1(2) and (3) supra. 2
In finding Regulation 158 to be ultra vires, Jack-
ett C.J. speaking for the Court said at page 234
[Federal Court Reports]:
What Regulation 158 does is prohibit payment of benefit for
any week of unemployment that falls in a "non-teaching peri
od". It was not contended before us that this falls within the
authority to make regulations "imposing additional conditions
and terms with respect to the payment and receipt of benefits";
(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 memo
randum was filed by senior counsel re-arguing the case and
changing his position on this question.) 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 dif
ficulty in regarding such prohibition as a regulation "restricting
the amount or period of benefit". It does not restrict the
maximum 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 section 44(1)—and section 58(h) does not
' [[I974] 2 F.C. 225]; 53 DLR (3d) 126 [C.A.].
2 Regulation I58(2) reads as follows:
158. ...
(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.
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.
In my view the defect which was fatal to the
validity of Regulation 158(2) as decided by the
Petts case is still present in Regulation 46.1. The
effect of that Regulation is still to prohibit pay
ment of benefit for any week of unemployment
that falls in a "non-teaching period". The lan
guage of the section has been changed somewhat
but these changes are purely cosmetic and do not
serve to remedy the essential defect pointed out in
Petts. A prohibition of payment for a particular
period is something quite different from "addition-
al conditions and terms with respect to the pay
ment and receipt of benefit" and "additional con
ditions and terms . .. restricting the amount or
period of benefit" as authorized by subparagraph
58 (h)(i) supra.
In upholding the validity of Regulation 46.1, the
learned Umpire, after comparing Regulation
158(2) with Regulation 46.1, observed:
Put shortly, the new regulation provides that the claimant
must fulfil one of the three conditions before being entitled to
benefit during the non-teaching period while the old regulations
provided that, unless one of the conditions was fulfilled, the
claimant should not be paid benefit.
With every deference, I fail to see any difference
in substance between the two sections or in the
learned Umpire's description of them. To me, the
two descriptions given by the Umpire are simply
two different means used to describe the same
prohibition.
I have accordingly concluded that Regulation
46.1 is ultra vires the regulation-making powers
vested in the Commission pursuant to subpara-
graph 58(h)(i) of the Act for the reasons given by
this Court in the Petts case supra.
In my view, therefore, the section 28 application
should be allowed, the decision of the Umpire set
aside, and the matter referred back to the Umpire
for reconsideration on the basis that Regulation
46.1 is not a valid or operative regulation.
URIE J.: I agree.
LE RAIN J.: I agree.
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.