A-823-82
Brenda Lipson (Applicant)
v.
Canada Employment and Immigration Commis
sion (Respondent)
Court of Appeal, Pratte, Urie and Le Dain JJ.—
Toronto, February 17, 1983.
Unemployment insurance — Maternity benefits — "Insur-
able employment" and exceptions therefrom Application to
review and set aside decision of Umpire that applicant not
entitled to benefits Applicant employed for 20 hours or
more in only 6 weeks, but employed for more than 15 hours in
10 weeks — Claim governed by exceptions from "insurable
employment" in force when claim presented, not by more
stringent exceptions in force while applicant employed —
Application allowed, decision set aside, matter referred back
to Umpire Unemployment Insurance Act, 1971, S.C. 1970-
71-72, c. 48, ss. 3(1), 4(3), 30 — Unemployment Insurance
Regulations, C.R.C., c. 1576, as am. by SOR/79-168, s. l;
SOR/80-805, s. l — Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10, s. 28.
CASE JUDICIALLY CONSIDERED
APPLIED:
Attorney General of Canada v. Desrochers, Federal
Court, A-235-81, judgment dated November 27, 1981.
COUNSEL:
D. K. L. Starkman and D. J. Lipson for
applicant.
Lois Lehmann for respondent.
SOLICITORS:
Golden, Levinson, Toronto, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment of
the Court delivered orally in English by
PRATTE J.: This is a section 28 application to
review and set aside a decision of an Umpire under
the Unemployment Insurance Act, 1971, S.C.
1970-71-72, c. 48, rejecting an appeal from a
Board of Referees and holding, in effect, that the
applicant had not worked the required number of
weeks in insurable employment so as to be entitled
to maternity benefits under section 30 of the Act.
That section prescribes that "benefits are pay
able to a major attachment claimant who proves
her pregnancy, if she has had ten or more weeks of
insurable employment in the twenty weeks that
immediately precede the thirtieth week before her
expected date of confinement".
The expression "insurable employment" is
defined in subsection 3(1) of the Act as "employ-
ment that is not included in excepted employ
ment", and the Commission is given the authority
by subsection 4(3) to make regulations for except
ing certain types of employment from insurable
employment. Until January 1, 1981, a regulation
[Unemployment Insurance Regulations, C.R.C., c.
1576, as am. by SOR/79-168, s. 1] adopted pursu
ant to that subsection excepted from insurable
employment any employment in which the
employee was employed for less than twenty hours
a week. As of January 1, 1981, however, that
regulation was changed [as am. by SOR/80-805, s.
1 ] so as to reduce to fifteen hours a week the
minimum duration of insurable employment.
The applicant was a part-time physiotherapist
who filed a claim for maternity benefits on April
21, 1981, indicating an expected date of confine
ment of May 16, 1981. During the twenty-week
qualifying period referred to in section 30 (which
period extended from May 25, 1980 to October 11,
1980), the applicant had only six weeks of employ
ment in which she was employed for twenty hours
or more; however, during the same period, there
were ten weeks during which she had worked for
more than fifteen hours. Therefore, the applicant's
claim had to be rejected if it was decided in the
light of the regulation existing when she had been
employed; it had to be admitted if it was con
sidered in the light of the regulation existing at the
time it had been made.
The Umpire confirmed the decision of the Board
of Referees and the Commission that the applicant
was not entitled to benefits under section 30. He
held that "whether a week was a week of insurable
employment can only be defined by the law in
force during the currency of each such week, not
by a law that came into force" afterwards.
We do not agree with that decision. The appli
cant's claim was made under section 30 of the Act
and, following our judgment in Attorney General
of Canada v. Desrochers (Court File No.
A-235-81, unreported decision pronounced on
November 27, 1981), it was governed by that
section as it stood at the time of the application,
rather than by the law existing when the applicant
was actually employed.
The application will therefore be allowed, the
decision under attack will be set aside and the
matter will be referred back to the Umpire for
decision on the basis that the applicant's entitle
ment to the benefits claimed by her is governed by
the law and regulations as they stood at the time
she presented her claim.
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.