A-1052-82
Attorney General of Canada (Applicant)
v.
Roger Imbeault, Arthur Dancause, Jean-Marc
St-Laurent, Laurent Robichaud (Respondents)
Court of Appeal, Pratte, Le Damn and Hugessen
JJ.—Quebec City, February 15; Ottawa, April 9,
1984.
Unemployment insurance — Application to review and set
aside Umpire's decision dismissing appeal from decision of
Board of Referees that respondent Dancause entitled to ben
efits — Respondent losing employment due to work stoppage
at place of employment — Subsequently employed by another
while strike continuing — Commission finding respondent
ineligible for benefits because employment by another during
strike not bona fide employment within meaning of s. 49 of
Regulations since he had not worked in that employment two
consecutive weeks — Board finding not necessary for part-
time employee to work two consecutive weeks for bona fide
employment — S. 49 of Regulations defining "bona fide
employed" for purposes of s. 44(1)(b) of Act as genuinely
employed in employment of not less than two weeks duration
— Idea of duration implying continuity — Application
allowed — S. 49 of Regulations requiring genuine employment
for two consecutive weeks — Unemployment Insurance Act,
1971, S.C. 1970-71-72, c. 48, ss. 44(1)(b), 58(f) — Unemploy
ment Insurance Regulations, C.R.C., c. 1576, s. 49 — Federal
Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
COUNSEL:
Jean-Marc Aubry for applicant.
Marwan Bachir for respondents.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Boivin, Dandenault, Bachir, Baie -Comeau,
for respondents.
The following is the English version of the
reasons for judgment rendered by
PRATTE J.: This application pursuant to section
28 of the Federal Court Act [R.S.C. 1970 (2nd
Supp.), c. 10] is from a decision of an Umpire on
appeals heard by him pursuant to Part V of the
Unemployment Insurance Act, 1971 [S.C. 1970-
71-72, c. 48]. That decision decided nine different
appeals. Applicant is only appealing here from a
part of the Umpire's decision: that which dis
missed the appeal by the Employment and Immi
gration Commission from the decision of a Board
of Referees that respondent Dancause was entitled
to the benefits which he was claiming.
Respondent Dancause had worked for the
Quebec North Shore Limitée paper company since
May 13, 1980 when, on July 14, 1980, he lost his
employment because of a work stoppage due to a
labour dispute at his place of employment. As the
Umpire said, there was no doubt that at that point
respondent Dancause became ineligible for ben
efits (subsection 44(1) of the Act). Subsequently,
however, respondent Dancause like several of his
fellow-workers was employed by another employer
while the strike continued. This is what resulted in
the several appeals heard by the Umpire. In a
sense, all these appeals raised the same question:
did the ineligibility of respondent Dancause and
his fellow-workers end pursuant to paragraph
44(1)(b), according to which a claimant's ineligi
bility ends if he becomes "bona fide" employed
elsewhere in the occupation that he usually fol
lows? In fact, however, the appeal regarding
respondent Dancause raised a special problem.
While in the case of his fellow-workers the ques
tion was whether their employment during the
strike was employment "in the occupation that
[they] usually follow", the question raised by the
appeal concerning respondent Dancause was
whether his employment by another employer
during the strike was "bona fide" employment
within the meaning of section 49 of the Unemploy
ment Insurance Regulations [C.R.C., c. 1576].'
' Under paragraph 58(f) of the Act the Commission may,
with the approval of the Governor in Council, make regulations
"determining ... the meaning of 'bona fide employed' for the
purposes of section 44".
Pursuant to this power, the Commission adopted section 49
of the Regulations, which reads as follows:
49. For the purposes of paragraph 44(1)(b) of the Act
"bona fide employed" means genuinely employed in employ
ment of not less than two weeks duration.
During the strike, respondent Dancause worked
for another employer for the weeks beginning Sep-
tember 28, November 2, November 23 and
December 14, 1980. On December 31, 1980 he
made an initial claim for benefits. On March 9,
1981 the Commission informed him that he was
regarded as ineligible, first, because he had lost his
employment by reason of a work stoppage
attributable to a labour dispute, and second,
because his employment by another employer
during the strike was not "bona fide" employment
within the meaning of section 49 of the Regula
tions, since he had not worked in that employment
for two consecutive weeks.
The Board of Referees quashed this decision by
the Commission, finding that in the case of part-
time employment like that of the respondent, it
was not necessary, in order for it to have been
"bona fide" employment, for the employee to work
for two consecutive weeks. The Commission
appealed this decision to the Umpire. This appeal
was heard, as I said above, concurrently with other
appeals involving respondent Dancause's fellow-
workers, and raising entirely different questions.
This explains why the Umpire, in rendering the
decision a quo, forgot that the appeal regarding
respondent Dancause raised a special problem and
omitted to rule on this question. It is common
ground that the Umpire mistakenly treated the
appeal involving respondent Dancause like those
involving several of his fellow-workers, and that in
all these cases he dismissed the appeals of the
Commission on the ground that the employment
held by these employees during the strike was in
fact employment in the occupation that they usual
ly followed.
The question is accordingly whether the Board
of Referees erred in law in finding that respondent
Dancause's employment during the strike was
"bona fide" employment within the meaning of
section 49 of the Regulations, despite the fact that
respondent had not held that employment for two
consecutive weeks. If the Board erred in arriving at
this decision, it follows that the Umpire also erred
in the same way in not setting aside the Board's
decision; while if the Board of Referees was cor
rect, the decision of the Umpire is unassailable.
Under section 49 of the Regulations, the phrase
"bona fide employed" in paragraph 44(1)(b) of
the Act means "genuinely employed in employ
ment of not less than two weeks duration". Coun
sel for the applicant argued that this provision
should be understood as requiring that the two
weeks in question be consecutive. Counsel for the
respondent maintained that this interpretation
adds to the wording of the Regulations.
In my view, if we look at the English version of
section 49, it appears that a person is only bona
fide employed within the meaning of paragraph
44(1)(b) of the Act if he has in fact worked in
such employment for two weeks ("two weeks dura
tion"). It appears to me that the idea of duration
necessarily implies some continuity. It seems clear
that it is not possible to say of someone who has
worked in a job a half-day a week for twenty
weeks that he has worked for two weeks' duration:
and this is true even if the person worked as much
time as someone who worked for two continuous
weeks of work. For the same reason, it appears to
me that respondent Dancause, by not working for
two consecutive weeks, did not meet the require
ments of section 49 of the Regulations.
I would accordingly allow the application, set
aside the decision a quo in so far as it relates to
respondent Dancause, and refer the matter back to
the Chief Umpire for him to decide it, or cause it
to be decided, by another Umpire on the assump
tion that section 49 of the Regulations requires, in
order for employment to be "bona fide" within the
meaning of paragraph 44(1)(b) of the Act, that
there must be genuine employment for two con
secutive weeks.
LE DAIN J.: I concur.
HUGESSEN J.: I concur.
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.