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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.
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