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.