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.