A-90-81
Attorney General of Canada (Applicant)
v.
Gary Schoen (Respondent)
Court of Appeal, Pratte and Urie JJ. and Verchere
D.J.—Vancouver, October 8; Ottawa, October 28,
1981.
Judicial review — Unemployment insurance — Application
to review and set aside the Umpire's decision that the loss of
part-time employment by reason of a strike did not disentitle
the claimant from receiving benefits in respect of his full-time
employment which he lost due to a work shortage in July 1978
— Respondent worked part-time until October 1978 at which
time he lost that job due to a labour dispute — Respondent
received full benefits from that time until the end of December
1978 — Unemployment Insurance Commission held that he
had been disentitled under subs. 44(1) of the Unemployment
Insurance Act, 1971 from receiving benefits after the end of
October — Whether the Umpire erred in holding that under
subs. 44(1) the claimant, after losing a full-time job because
of a work shortage, and after losing a part-time job, which he
held while receiving unemployment insurance benefits, due to a
labour dispute was not disentitled from receiving benefits in
respect of his full-time employment — Application is allowed
— Unemployment Insurance Act, 1971, S.C. 1970-71-72, c.
48, ss. 16(1)(a), 27(2), 44(1) — Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10, s. 28.
APPLICATION for judicial review.
COUNSEL:
P. Partridge for applicant.
D. J. Egleston for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
D. J. Egleston, Vancouver, for respondent.
The following are the reasons for judgment
rendered in English by
PRATTE J.: This is a section 28 application to
review and set aside a decision of an Umpire under
Part V of the Unemployment Insurance Act, 1971,
S.C. 1970-71-72, c. 48.
From February 24, 1978, to July 7, 1978, the
respondent was employed on a full-time basis by
Rayonier Canada. He lost that job by reason of a
shortage of work and he thereafter worked part
time for Pacific Press Ltd., a company which had
employed him during the weekends since 1974. On
July 27, 1978, as a consequence of the termination
of his full-time employment with Rayonier
Canada, he made an initial claim for benefit to the
Unemployment Insurance Commission which, pur
suant to section 19 of the Act, established for him
a benefit period commencing on July 23, 1978.
The respondent, however, did not commence to
receive benefits until September 9, 1978, since,
before that date, the income that he derived from
his part-time employment at Pacific Press Ltd. and
from other casual jobs exceeded his benefit rate.
From September 9, 1978 to the end of October
1978, he received reduced benefits to allow for his
income from his part-time job. At the end of
October, he lost that job and was thereafter con
tinuously unemployed until the end of December
1978. During that last period, he received the full
benefits. The Commission later determined that he
had lost his part-time job at Pacific Press Ltd. as a
result of a labour dispute and that, as a conse
quence, he had been disentitled under subsection
44(1) of the Act' from receiving the benefits that
had been paid to him after the end of October. The
respondent appealed from that decision to a Board
of Referees. His appeal was dismissed. He then
appealed to an Umpire. The Umpire allowed the
appeal and referred the matter back to the Com
mission to be dealt with on the basis that the
appellant was not disentitled from benefits in
respect of his employment by Rayonier Canada by
reason of the labour dispute at Pacific Press. That
is the decision against which this application is
directed.
' That subsection reads as follows:
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.
It is common ground, as it was before the
Umpire, that the respondent lost his part-time
employment at Pacific Press "by reason of a stop
page of work attributable to a labour dispute at
the ... premises at which he was employed" and
that he cannot invoke the benefit of subsection
44(2). It follows that the sole question to be
determined by the Umpire was whether, under
subsection 44(1), a claimant, who, after losing a
full-time job because of a shortage of work, held a
part-time job while receiving unemployment insur
ance benefits, was disentitled from receiving those
benefits if he lost his part-time job by reason of a
strike at the workshop where he was employed. As
I have already indicated, the Umpire answered
that question by saying that, in those circum
stances, the loss of the part-time employment did
not disentitle the claimant from receiving benefits
in respect of his full-time employment which had
been previously terminated by reason of a shortage
of work.
I have difficulty understanding the learned
Umpire's decision. Under the Act, benefits are
payable to persons who are qualified and entitled
to receive them when those persons are unem
ployed; benefits are not payable in respect of the
various employments that a person may have held
in the past. It is true, in a sense, that the claimant
who is entitled to receive benefits has earned that
right by previously working in insurable employ
ment since, in order to qualify to receive benefits,
a person must have been employed in insurable
employment for a certain number of weeks and
since, also, the rate of benefit payable to a claim
ant is determined by reference to his earnings
during those weeks. However, it does not follow
that the benefits that are payable to a claimant are
payable in respect of those weeks of employment;
they are payable exclusively in respect of the
weeks during which he is unemployed. When,
therefore, unemployment insurance benefits are
paid to a claimant who held, either concurrently or
successively, many different jobs, the Act does not
provide for the division and allotment of the ben
efits between the various jobs. In so far as the
decision under attack was based on the incorrect
assumption that such a division and allotment
were possible under the Act, it should, in my view,
be set aside.
There is perhaps another way to explain the
Umpire's decision. While he did not say so, he may
have read subsection 44(1) as disentitling a claim
ant from receiving only the benefits or the portion
of the benefits that, if the subsection did not exist,
would become payable as a result of the loss of
employment attributable to a labour dispute. In
other words, according to that interpretation, the
subsection would not disentitle a claimant, whose
employment is terminated by a labour dispute,
from receiving the benefits to which he would have
been entitled if that employment had not been
terminated; it would merely disentitle him from
receiving additional benefits as a consequence of
the termination of his employment by reason of a
labour dispute. That interpretation would certainly
produce fair results. I have nevertheless reached
the conclusion that it must be rejected. Under the
Act, when a person is, by reason of section 44,
disentitled from receiving benefits for a day or a
period, that person thereby loses his right to
receive any benefit for that day or period. This, in
my view, flows from paragraph 16(1)(a) and sub
section 27(2). 2 It follows that, in my opinion,
subsection 44(1) cannot be interpreted so as to
disentitle a claimant of only a part of the benefits
that he would otherwise have the right to receive.
Counsel for the respondent conceded in argu
ment that the decision of the Umpire was wrong
inasmuch as it held that the respondent was dis-
entitled from receiving benefits in respect of his
part-time employment at Pacific Press. He argued
that subsection 44(1) should be interpreted so as to
have no application at all in this case. In his view,
the respondent was not subject to any disentitle-
ment by reason of subsection 44(1). However,
when he was asked to state the interpretation that
should be given to the subsection in order to
2 Those provisions read as follows:
16. (1) In this Part,
(a) "disentitled" means to be not entitled under section 23,
25, 29, 36, 44, 45, 46, 54 or 55 or under a regulation;
27....
(2) If a claimant is disentitled or disqualified from receiv
ing benefits for any working day in a week of unemployment,
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.
achieve that result, he could not give any satisfac
tory answer. He simply suggested, as I understood
him, that the subsection should not apply to per
sons having more than one employment, that it
should not apply to part-time employment, and,
also, that it should only apply to the loss of the last
employment before the establishment of a benefit
period. I cannot accept any of those suggestions. If
Parliament had intended the subsection to apply
only to the loss of the last employment before the
establishment of a benefit period, it would have
said so as it has in section 41. Moreover, not to
apply the subsection to the loss of an employment
during a benefit period would be difficult to recon
cile with the obvious purpose of that provision not
to permit that the funds of the Unemployment
Insurance Commission be used to subsidize a party
to a labour dispute. As to the suggestions that the
subsection be read so as not to apply to persons
having more than one employment and to persons
working part-time, I fail to see why the normal
meaning of the words used in the subsection
should be thus restricted.
In my opinion, therefore, subsection 44(1) must
be given its natural meaning even if it has the
unfortunate effect, in this case, of disentitling the
respondent from receiving any benefit under the
Act. In spite of my desire to reach another conclu
sion, I cannot think of any valid reason for not
following the decision rendered in Giroux v.
Attorney General of Canada (May 1, 1980, Court
File No. A-6-80) where this Court dismissed with
out reasons a section 28 application directed
against a decision of Mr. Justice Marceau who, as
an Umpire, held (CUB 5207A, December 5, 1979)
that, under subsection 44(1), the recipient of
unemployment insurance benefits, who had lost a
part-time job for the reason mentioned in the
subsection, had been thereby disentitled from
receiving any benefits under the Act.
I would, for those reasons, allow the application,
set aside the decision of the Umpire and refer the
matter back for decision on the basis that under
subsection 44(1) a claimant, who, after losing a
full-time job by reason of a shortage of work, holds
a part-time job while he is receiving unemploy
ment insurance benefits, is disentitled from receiv-
ing any benefit under the Act if he loses that
part-time job by reason of a stoppage of work
attributable to a labour dispute at the workshop
where he is employed.
* * *
URIE J.: I agree.
* * *
VERCHERE D.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.