A-872-80
Attorney General of Canada (Applicant)
v.
Dennis Abrahams (Respondent)
Court of Appeal, Thurlow C.J. and Hyde and
Culliton D.JJ.—Toronto, May 25 and 29, 1981.
Judicial review — Unemployment insurance — Work stop
page — Application to review and set aside Umpire's decision
entitling respondent to benefit — Respondent lost his employ
ment by reason of a labour dispute — He subsequently
obtained other employment, but left after six months —
Umpire held that respondent was "regularly engaged in some
other occupation" — Umpire applied a new and different
interpretation to the word "regularly" — Whether Umpire
erred — Unemployment Insurance Act, 1971, S.C. 1970-71-
72, c. 48, s. 44(1) — Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10, s. 28.
This is an application to review and set aside the decision of
an Umpire entitling the respondent to unemployment insurance
benefit. The respondent, who lost his employment by reason of
a labour dispute, subsequently found other employment, but
left after six months for personal reasons. The respondent had,
at all times, every intention of returning to his former employ
ment once the labour dispute was settled. The Umpire, revers
ing the decision of a Board of Referees, held that the respond
ent was "regularly engaged in some other occupation" pursuant
to section 44(1)(c) of the Unemployment Insurance Act, 1971.
In so doing, the Umpire dismissed the claimant's intention to
return to his former employment and held that when the facts
do not suggest a casual employment and when the claimant
pursues his secondary employment day in and day out for a
period of time, then the claimant holds regular employment for
the time it endures. The issue is whether the Umpire erred.
Held, the application is allowed. As section 44(1)(c) of the
Act has been interpreted by the Umpires with consistency in
dealing with many cases over a long period of time, during
which there have been many opportunities, both when the
statute was being amended and when it was revised in 1971, for
Parliament to correct the interpretation so put upon the provi
sion, if the interpretation was not what had been intended, it
would be wrong at this stage to adopt a new and different
interpretation. Thus casual, temporary or stop-gap employment
undertaken by a claimant for the mere purpose of riding out the
period of a labour dispute does not fall within the meaning of
section 44(1)(c) of the Act.
APPLICATION for judicial review.
COUNSEL:
Paul Plourde for applicant.
Brian Shell for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Brian Shell, % United Steelworkers of
America, Toronto, for respondent.
The following are the reasons for judgment
delivered orally in English by
THURLOW C.J.: This is an application under
section 28 of the Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10, to review and set aside a
decision of the Honourable J. L. Dubinsky as an
Umpire under the Unemployment Insurance Act,
1971, S.C. 1970-71-72, c. 48.
The decision reversed a majority decision of a
Board of Referees which had held the respondent-
claimant disentitled by subsection 44(1) of the Act
to unemployment insurance benefit. The subsec
tion provides:
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 occupa
tion that he usually follows, or
(c) he has become regularly engaged in some other
occupation,
whichever event first occurs.
The claimant, who had been employed as a
driller by International Nickel Company of
Canada Ltd. for some eight years, was one of a
large number of persons who lost their employ
ment by reason of a labour dispute. Some three
weeks after the loss of his employment, the claim
ant obtained employment as a porter at a hospital
where he worked three days a week. While so
employed, he attended university two days a week.
The employment continued for six months when,
for personal reasons, the claimant left the job. At
that time the labour dispute was still in progress.
At all material times, the claimant had every
intention of returning to his employment with
International Nickel Company of Canada once the
labour dispute was settled.
In holding the claimant disentitled to unemploy
ment insurance benefit, the majority of the Board
of Referees had directed its attention to paragraph
44(1)(b) and had found that the claimant had not
been bona fide engaged in the same occupation but
it had not discussed paragraph 44(1)(c). The dis
senting member had found that the claimant had
been "regularly engaged in some other occupa
tion" within the meaning of that paragraph.
The learned Umpire reached the same conclu
sion but did so after applying an interpretation of
the paragraph which was new and which differed
from the interpretation placed on it by previous
decisions of the Umpires, including decisions of
Addy J., in the case of Lavallée, CUB 4404, and
of Cattanach J., in the case of Desrochers, CUB
4750, which the learned Umpire declined to
follow.
As far back as 1949, it had been held by Mr.
Justice Savard that jobs that did not give a prom
ise of lasting employment but were mere tempo
rary substitutes which did not intervene in the
chain of causality between the claimants' unem
ployment and the stoppage of work due to a labour
dispute would not satisfy paragraph 44(1)(c).
Jurisprudence developed subsequently by other
Umpires, including Cameron J., Kearney J., Cat-
tanach J., and Addy J., had established the impor
tance of the claimant's intention to return to his
former employment when the labour dispute ended
as a fact to be taken into consideration in deter
mining whether periods of employment of varying
duration engaged in by claimants pending or
during the continuance of a labour dispute should
be regarded as satisfying the requirement of
"regularly engaged in some other occupation" in
paragraph 44(1)(c).
Cameron J., in CUB 1247, had said:
The expression "regularly engaged" is not defined in the Act,
and I do not consider it advisable or proper to lay down a hard
and fast rule. Whatever is its meaning, however, it apparently
purports to mean something beyond the taking of temporary
employment until the stoppage of work is finished. In other
words, it involves an engagement beyond that found in a stop
gap employment.
Kearney J., in CUB 2263, had said:
Now, in interpreting the word "regularly", according to the
jurisprudence established by the Umpire, less importance must
be given to the duration of the occupation than to the claim
ant's intention when he became engaged in that occupation; it
cannot be said that he became "regularly" engaged if he
accepted employment with the intention of leaving it to resume
his former usual occupation at the termination of the labour
dispute and the stoppage of work.
Cattanach J., in CUB 4750, had said:
On the other hand a claimant is entitled to receive benefit
when under paragraph (c) of section 44(1) he becomes regular
ly engaged in some other occupation. That clearly means that
the claimant must have abandoned his former occupation and
adopted another.
To be eligible under paragraph (b) he must be employed in
the occupation he usually follows, that is the same occupation,
but under paragraph (c) he must be engaged in some other
occupation. The introduction of the word "other" therefore
presupposes a different occupation from which he usually fol
lows and an abandonment of his former occupation ....
Addy J., in CUB 4404, had said:
One cannot reasonably conclude that the claimant "became
regularly engaged in some other occupation" (section 44(1)(c)
of the Act) since he intended to hold that job only for the
duration of the dispute. He remained interested in the outcome
of the dispute and certainly did not consider his new job regular
in the same way as a claimant who decides to leave his usual
occupation for a career elsewhere. The word "regularly"
implies that the employee has given up his former job and not
simply accepted a temporary one that he intends to leave as
soon as he is able to return to his former employment.
Other Umpires, including Gibson J., Walsh J.,
and Marceau J., had followed the same principles.
The interpretation of paragraph 44(1)(c) adopt
ed by the learned Umpire in the present case was
based on dictionary meanings of "regularly", on
an English decision holding that a person who
occupied a position for five years while replacing
an incumbent who was absent on war service was
"regularly employed" within the meaning of The
Poor Law Officers' Superannuation Act and on
the principle of construction that the grammatical
and ordinary sense of words in written instruments
is to be adhered to unless that would lead to some
absurdity, or some repugnancy or inconsistency
with the rest of the instrument.
The learned Umpire concluded that:
... where the facts pertaining to the secondary employment—
as in the case at Bar—do not give rise to the slightest sugges
tion that the employment was to have been only of temporary
duration or as Farwell, J., put it, "casual" and the claimant in
question had pursued his secondary employment day in and day
out for a period of time, then even if that employment came to
an end shortly after he had begun, it was in my view, regular
employment for the time that it endured.
It will be observed that in this interpretation the
word "regularly" is given a meaning approximate
ly equivalent to "repetitiously" or "continuously"
and not temporary, in the sense that the employ
ment was available for an indefinite time, and that
no effect is given to its casual or temporary char
acter, if present, from the point of view of the
intent of the claimant as to the period in which he
intended or proposed or expected to be engaged in
the new occupation. While this interpretation has
the attraction of posing a somewhat more objective
test, it seems to me that in the context in which the
word "regularly" is found it connotes something
more than mere repetitiveness or continuity or the
probability of the employment being available
more or less permanently and that an interpreta
tion is to be preferred in which the expression
"regularly engaged in some other occupation" is
applied as a whole to the facts of a situation for
the purpose of determining whether the claimant is
in truth regularly engaged in a new and different
occupation or is merely engaging in casual, tempo
rary or stop-gap employment for the purpose of
riding out the period of his unemployment result
ing from the labour dispute.
In this interpretation, the intention of the claim
ant assumes importance as is apparent from the
decision of Walsh J., in CUB 4312 where, though
the employment in question was for but five days
with the prospect of some further weeks of work
later on, the Umpire was satisfied that the claim
ant did not intend to go back to his former job at
the end of the labour dispute.
Apart from this view, however, I am of the
opinion that as the paragraph has been interpreted
by the Umpires with consistency in dealing with
many cases over a long period of time, during
which there have been many opportunities, both
when the statute was being amended and when it
was revised in 1971, for Parliament to correct the
interpretation so put upon the provision, if the
interpretation was not what had been intended, it
would be wrong at this stage to adopt a new and
different interpretation.
Accordingly, I am of the opinion that the deci
sion should be set aside and that the matter should
be referred back to the Umpire for determination
on the basis that casual, temporary or stop-gap
employment undertaken by a claimant for the
mere purpose of riding out the period of a labour
dispute is not within the meaning of "regularly
engaged in some other occupation" in paragraph
44(1)(c) of the Act.
I would make the same disposition of the
application in A-834-80, Attorney General of
Canada v. Zayack, which was heard at the same
time.
* *
HYDE D. J. concurred.
* * *
CULLITON D. J. concurred.
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.