A-1514-83
Attorney General of Canada (Applicant)
v.
Michel Giguere (Respondent)
Court of Appeal, Heald, Mahoney and Stone
JJ.—Toronto, March 1; Ottawa, March 7, 1984.
Unemployment insurance — Application to set aside
Umpire's decision dismissing Commission's appeal from deci
sion of Board of Referees — Board allowing respondent's
appeal against disentitlement to benefit under s. 44(1) Unem
ployment Insurance Act, 1971 — Respondent losing full-time
employment at Inco due to labour dispute, and subsequently
losing part-time liquor store job due to work shortage —
Part-time employment continuing beyond commencement of
Inco strike — S. 44(1) applying to "claimant who has lost his
employment" — Employment defined as "state of being
employed" — Claimant not losing his employment when loses
one employment since continuing "state of being employed" —
Disentitlement under s. 44(1) illegally imposed — Application
dismissed — Unemployment Insurance Act, 1971, S.C. 1970-
71-72, c. 48, ss. 2(1)(g) (as am. by S.C. 1976-77, c. 54, s.
26(4)), 44(1) — Federal Court Act, R.S.C. 1970 (2nd Supp.), c.
10, s. 28.
CASES JUDICIALLY CONSIDERED
DISTINGUISHED:
Attorney General of Canada v. Schoen, [1982] 2 F.C.
141 (C.A.).
REFERRED TO:
Abrahams v. Attorney General of Canada, [1983] 1
S.C.R. 2; 142 D.L.R. (3d) 1.
COUNSEL:
Edward R. Sojonky, Q.C. and S. D. Clarke
for applicant.
Brian Shell for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Brian Shell c/o United Steelworkers of
Canada, Toronto, for respondent.
The following are the reasons for judgment
rendered in English by
MAHONEY J.: This section 28 application on
behalf of the Unemployment Insurance Commis
sion seeks to set aside a decision by an Umpire
dismissing the Commission's appeal from a deci-
sion of a Board of Referees. The Board allowed
the respondent's appeal against a disentitlement to
benefit imposed by the Commission under subsec
tion 44(1) of the Unemployment Insurance Act,
1971 [S.C. 1970-71-72, c. 48]. The Board found
that the respondent had met the relieving condi
tion of paragraph 44(1)(b). The Umpire found
that he had met the relieving condition of para
graph 44(1)(c) and, while apparently disagreeing
with the basis upon which the Board had reached
its decision, found it had been correct in the result.
Subsection 44(1) of the Act 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 occupa
tion that he usually follows, or
(c) he has become regularly engaged in some other
occupation,
whichever event first occurs.
The respondent's principal or "full-time"
employment was with Inco Limited as a loader-
man underground operating a self-propelled
loader, so small that its operator walked beside it
rather than riding on it, at an hourly wage of $7.
His "part-time" employment was with the Liquor
Control Board of Ontario at an hourly wage of
$4.49 per hour. He was designated a clerk by the
L.C.B.O. He occasionally worked on cash and
counter service but spent the majority of his time
unloading cases of merchandise from trucks,
moving and stacking them in the warehouse sec
tion. The Board appears to have concluded that his
occupation in both jobs was essentially manual
labour and that he had become bona fide
employed in the same occupation by the L.C.B.O.
The respondent did not argue before this Court
that that was a correct basis upon which to dispose
of the matter. He did, however, argue that the
Umpire was correct in holding that he had become
regularly engaged in another occupation, relying,
as did the Umpire, on the discussion of what
constitutes "regular" employment by the Supreme
Court of Canada in Abrahams v. Attorney Gener
al of Canada, [1983] 1 S.C.R. 2; 142 D.L.R.
(3d) 1.
Before considering whether any of the relieving
conditions of subsection 44(1) have been met, it is
necessary to determine whether the conditions
precedent to the imposition of the disentitlement
were met. The respondent described his part-time
work with the L.C.B.O. (Case, page 40) as follows:
With the eh ... work week they go from two weeks eh ... from
dates to dates so I put down the dates, the period of pay day is
from October 3rd to the 15th of 77, I'd worked 10 hours, from
October 17th to the 29th of 77 I worked 10 hours, from
October 31st to November 12th I worked 12 hours from
November 14th to the 26th .of 77 I worked 4 hours, from the
. November 28th to December 10, 77 I worked 10 hours,
from December 12th to the 24th of 77 I worked 15 hours, from
December 26th to 77 ... January 7th of 78 I worked 14 hours,
and from February 6th to February 18th of 78 I worked 15
hours, from February 20 ... 20th to the March 4th I worked
12 hours, from March 6th to 18th of 78 I worked 8 hours, from
March 20th to April 1st I worked 24 hours, from April 3rd to
15th 78 I worked 8 hours, from April 17th to 29th of 78 I
worked 14 hours, from May 1st to 13th I worked 8 hours, from
May 15th to 27th, 12 hours, from June the 12th to the 24th, 16
hours, from June 26 to July 8, 17 hours, from July 10th to the
22nd 61 hours, July 24th to August the 5th, 54 hours, August
the 7th to 19th, 24 hours, from August 21st to September the
2nd, 13 hours, from October 12th to 14th, 16 hours, from
October 16th to 28th, 16 hours, from October 30th to Novem-
ber 1st ... November 11th, 24 hours, from November 13th to
November 25th, 22 hours, from November 27th to December
9th, 22 hours, December 11th to the ... 23rd, 80 hours, and
December 27th to the January 6th, 32 hours. And that's more
hours that eh ... total from the February 78 to eh ... the eh
... December 31st I had worked 496 hours. Then from January
right up to February around the middle of February I have
hardly worked and they start calling me back again to work for
a few hours. It varies from 6 to 12, sometimes 15, it varies.
The respondent's part-time employment was no
sham. It began in October, 1977, and continued
beyond the commencement of the Inco strike, Sep-
tember 15, 1978, until his lay-off, December 30,
1978, because of a shortage of work. He applied
for benefit on January 18, 1979.
The Act [paragraph 2(1)(g) (as am. by S.C.
1976-77, c. 54, s. 26(4))] defines "employment" to
mean "the act of employing or the state of being
employed". The respondent had two employments:
one with Inco, the other with the L.C.B.O. Both
were insurable employments. He was assessed and
paid unemployment insurance premiums in respect
of each employment and each employer did
likewise.
The crucial issue, in my view, is whether the
disentitlement under subsection 44(1) was proper
ly imposed in the first place. In Attorney General
of Canada v. Schoen, [1982] 2 F.C. 141 (C.A.),
this Court dealt with the reverse of the present
situation. The claimant there had lost his full-time
job by reason of a shortage of work and continued
in a part-time job which he later lost as a result of
a labour dispute. He had applied for benefit when
he lost his full-time job and his claim was allowed.
The benefit he was paid took account of his earn
ings from the part-time job. When he lost his
part-time employment, he was entirely disentitled
to benefit under subsection 44(1). That disentitle-
ment was sustained by the Court.
I do not think it necessary to deal here with
many of the hypotheses which the Court found it
necessary to deal with in Schoen in disposing of
the arguments raised there. Nor do I think it
appropriate to speculate on the effect, if any, the
subsequent decision of the Supreme Court of
Canada in Abrahams might have should the Court
again be faced with the facts of Schoen. This is, as
stated, a reverse situation and can be disposed of
in a manner that is, in my view, entirely consistent
with Schoen.
This respondent had two employments, as
defined by the Act, prior to the Inco strike. There
after, until his lay-off by the L.C.B.O., he had one.
Can a claimant, having two employments, be said
to have lost his employment when he loses one of
them? In my opinion, he cannot. He continues, as
defined, in "the state of being employed". The
respondent lost an employment due to the Inco
strike but he did not lose his employment until laid
off by the L.C.B.O. He did not lose his employ
ment by reason of anything prescribed by subsec
tion 44(1) and the disentitlement was, therefore,
illegally imposed. It is therefore not necessary to
consider whether the relieving conditions of the
section were met.
This Court has not the power to render the
decision that should have been rendered below. It
can only dismiss the application or allow it and set
aside the Umpire's decision and remit the matter
for reconsideration with directions. As I appreciate
it, the dismissal of this section 28 application will
have the same practical effect as remitting the
matter along the chain with a view to vacating the
disentitlement ab initio and I would, therefore,
dismiss it.
HEALD J.: I concur.
STONE 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.