A-298-74
Louise Ricard (Appellant)
v.
Unemployment Insurance Commission (Respond-
ent)
and
Attorney General of Canada (Mis -en-cause)
Court of Appeal, Pratte, Hyde and St-Germain
JJ.—Quebec City, September 25, 1975.
Judicial review—Unemployment insurance—Applicant's
benefits cut off—Board of referees and umpire rejecting
appeal—Meaning of Regulation 145(9)—Whether s. 145(9)
null, void and ultra vires under s. 58(j)—Unemployment In
surance Act, S.C. 1970-71-72, c. 48, ss. 25,58(j) and Regula
tions, s. 145(9)—Federal Court Act, s. 28.
A Board of referees and an umpire both dismissed appli
cant's appeal on the discontinuance of her unemployment insur
ance benefits. The umpire's decision was based on section
145(9) of the Regulations; applicant claims that the section is
invalid and ultra vires the Commission under section 58(j) of
the Act. The applicant applied for judicial review.
Held, the application is dismissed. The Commission does not
have the power under section 58(j) to enact a regulation
subordinating proof of fulfilment of conditions specified by the
Act to proof of a fact with no logical relationship to the
fulfilment of these conditions. Rather, section 58(j) grants the
Commission power to adopt a regulation subordinating proof of
the fulfilment of the legal condition to proof of a fact which is
so interconnected with fulfilment of these conditions that it is
impossible to conceive of the legal conditions being fulfilled
without the existence of the fact required by the regulation.
Regulation 145(9) is this sort of proof. According to section 25
a claimant who is capable of working is entitled to benefit, not
because he is available for work, and unable to find it, but
because he can prove his availability, and inability to obtain
employment. It is impossible for a claimant to satisfy this
condition if he cannot prove he has made reasonable efforts to
find work.
JUDICIAL review.
COUNSEL:
J. Ricard for applicant.
Y. Brisson for respondent.
SOLICITORS:
J. Ricard, Matane, for applicant.
Attorney General of Canada for respondent.
The following is the English version of the
reasons for judgment of the Court delivered orally
by
PRATTE J.: Applicant (who is erroneously
referred to as an appellant in the case title) was
unemployed and benefited from the provisions of
the Unemployment Insurance Act for several
weeks; the Commission then decided, at the end of
March 1974, that as of March 24 she had ceased
to be entitled to benefit as specified by the Act.
First, applicant unsuccessfully appealed this deci
sion to a board of referees. She then appealed the
board's decision to an umpire, who dismissed her
appeal. It is this decision of the umpire which
applicant is now contesting under section 28 of the
Federal Court Act.
According to section 25 of the Unemployment
Insurance Act:
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
The umpire based his decision on the fact that
applicant had not proven that she had made
reasonable efforts to find employment; from this
he concluded, in accordance with section 149(9) of
the Unemployment Insurance Regulations, that
applicant had not established satisfactory evidence
according to the terms specified in section 25(a) of
the Act. Section 145(9) of the Regulations read as
follows at the time:
145. (9) For the purposes of paragraph 25(a) of the Act, a
claimant fails to prove that he is available for work and unable
to obtain suitable employment on each working day in a period
if he fails to prove that during that period he made reasonable
and customary efforts to obtain employment.'
Counsel for the applicant claims that Regula
tion 145(9) is invalid. He states that it is a regula
tion that the Commission did not have the power
to enact.
The words "il a fait, de façon habituelle, des démarches
raisonnables" are an awkward translation of "he made reason
able and customary efforts".
The only legislative provision on which the
Commission's authority to adopt this regulation
could rest is contained in section 58(j) of the Act:
58. The Commission may, with the approval of the Governor
in Council, make regulations
(j) respecting the proof of fulfilment of the conditions ...
from receiving or continuing to receive benefit ....
Counsel for the applicant claims that Regula
tion 145(9) is not a regulation "respecting the
proof of fulfilment of the conditions ... from
receiving or continuing to receive benefit", but
rather a regulation which is, under the conditions
specified by the Act (that is, availability for work
and inability to obtain employment) coupled with
another (that is, making reasonable efforts to
obtain employment). He therefore concludes that
it is a regulation ultra vires, and one on which the
umpire should not have based his decision.
In essence, Regulation 145(9) provides that in
order to prove the existence of certain facts, a
claimant must prove the existence of another fact.
Clearly, such a provision concerns the facts to be
proven and not only the method of proving them.
However, it does not necessarily follow that in
adopting this regulation, the Commission has
exceeded the power granted to it by section 58(j)
to establish rules of evidence. Legal rules related
to presumptions, to take only one example, are
rules of evidence even though they apply to both
the object of the evidence and the way in which it
is established.
In our opinion, the Commission does not have
the power under section 58(j) to enact a regulation
subordinating proof of fulfilment of the conditions
specified by the Act to proof of a fact with no
logical relationship to the fulfilment of these con
ditions. Such a regulation would add a condition to
those specified by the Act. Rather, section 58(j) in
our opinion grants the Commission power to adopt
a regulation subordinating proof of the fulfilment
of the legal conditions to proof of a fact which is so
interconnected with fulfilment of these conditions
that it is impossible to conceive of the legal condi
tions being fulfilled without the existence of the
fact required by the regulation. The Court consid
ers that Regulation 145(9) is this sort of proof.
According to section 25, a claimant who is
capable of working is entitled to benefit, not
because he is available for work and unable to
obtain employment, but rather because he can
prove his availability and his inability to obtain
employment. The Court does not think it is possi
ble for a claimant to satisfy this condition if he
cannot prove he has made reasonable efforts in the
circumstances to find employment.
For these reasons, we are of the opinion that the
Commission, in adopting Regulation 145(9), did
not exceed the powers it is granted by section
58(j).
Counsel for the applicant also claimed that the
umpire's decision was contradictory and dis
criminatory. As we indicated at the hearing, these
two arguments appear to be totally unfounded. It
must be remembered that the point at issue con
cerns an application under section 28 and not an
appeal where the Court may review the findings of
the trial judge.
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.