A-1198-84
Canada Employment and Immigration Commis
sion (Applicant)
v.
Martial Roy (Respondent)
and
Yvon Pinard J., Umpire (Mis -en-cause)
Court of Appeal, Pratte, Marceau and MacGuigan
JJ.—Montreal, September 11; Ottawa, October
23, 1985.
Unemployment insurance — Respondent finding new
employment after losing employment as result of work stop
page due to labour dispute — Whether respondent "regularly
engaged in some other occupation" within meaning of Act s.
44(1)(c) — Interpretation of Supreme Court of Canada deci
sion in Abrahams v. Attorney General of Canada — Unem
ployment Insurance Act, 1971, S.C. 1970-71-72, c. 48, ss.
3(2)(b), 44(1)(b),(c),(2), 58 — Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10, s. 28 — Unemployment Insurance Regula
tions, C.R.C., c. 1576, s. 49.
Martial Roy, the respondent herein, Marcel Cournoyer,
respondent in case No. A-1199-84 and Gratien Jacques,
respondent in case No. A-1201-84 all had for several years
been full-time employees of Sidbec-Feruni in Quebec. They lost
their employment by reason of a stoppage of work attributable
to a labour dispute. All three expected to resume their employ
ment as soon as the dispute was settled. In the meantime, all
three obtained alternative employment. The respondent's tem
porary employment, maintenance work on an ice cream stand,
would last only a few days, but the exact duration was not
certain at the outset. Jacques, an engine driver, was hired on an
exceptional basis by a soft drink company as a bottle washer.
He worked for a total of sixty-five hours, spread unevenly over
three weeks. Cournoyer, a blacksmith, worked in a packing
plant from late July until the end of the harvest in October.
The issue is whether, following the guidelines established by the
Supreme Court of Canada in Abrahams, the respondents
should be regarded as being "regularly engaged in some other
occupation" within the meaning of paragraph 44(1)(c) of the
Unemployment Insurance Act, 1971, thereby terminating their
disentitlement to unemployment benefits while a labour dispute
continued. The Commission gave a negative answer in all three
cases but the Board of referees and the Umpire took a different
view, holding that all three had been "regularly engaged in
some other occupation". This is a section 28 application to
review and set aside the Umpire's decision.
Held (Marceau J. dissenting herein and in case No.
A-1201-84), the applications should be dismissed.
Per Pratte J.: In Abrahams, it was decided that a striking
employee could be "regularly engaged" in employment within
the meaning of paragraph 44(1)(c) even if that employee
intended to leave the new employment at the end of the strike
and return to his usual occupation. The Supreme Court of
Canada agreed with the Umpire that the required characteris
tic was not the duration of the hiring but the regularity of the
work schedule. The Supreme Court adopted that interpretation
because, firstly, the legislator did not, as it could have, specify
that the duration of the employment was an essential aspect of
its regularity, secondly, because if "regularly" were held to
mean "permanently", it would encourage striking employees
not to work, which would be inconsistent with the aim of the
legislator in enacting subsection 44(1), namely to deter fraud
and abuse and, thirdly, because, in cases of doubt, the Act
should be interpreted in favour of the payment of benefits to
those in need of them. While the ideas of continuity and of a
regular work schedule necessarily assume some duration, where
an employee has actually been hired to do work in accordance
with a regular work schedule, as in the present case, that
employee, when he begins work, is regularly engaged in an
occupation within the meaning of paragraph 44(1)(c).
Per MacGuigan J.: Abrahams identified two conditions for
the regularity of employment required by paragraph 44(1)(c):
the first is the absence of fraud; the second requires the
claimant to establish positively that he regularly engaged in
some other occupation. The only regularity required of the
employment depends on the nature of the work itself. Thus,
seasonal employment requires only seasonal duration, short-
term employment, temporary duration. The determination of
whether an employment is too short to be accepted as genuine
is a question of fact. In the present case, there was no question
of fraud and, on the facts, applying the Abrahams rules, the
respondent was regularly engaged in a new occupation.
Per Marceau J. (dissenting herein and in case No.
A-1201-84): As regards the interpretation of paragraph
44(1)(c), Abrahams overruled an elaborate and long-standing
line of decisions by the Umpire. Previously, most of the
Umpires regarded the phrase "regularly engaged in some other
occupation" in the sense of undertaking new duties in such a
way as to demonstrate some degree of disinvolvement, dissocia
tion or lack of interest in the outcome of the labour dispute.
There never was below, nor is there now, any dispute as to
the facts themselves. The point at issue is how they should be
characterized, and this clearly raises a question of law. "Firm
commitment" are the key words in the entire analytical frame
work resulting from the Abrahams case. The "sort of fraud",
which is mentioned as being the "wrong" which Parliament
wished to avoid, is that resulting from engaging in an occupa
tion but without a firm and serious commitment and merely to
circumvent the disentitlement rule in section 44, without the
kind of real commitment a person wishing to leave the ranks of
the unemployed is ready to make. This interpretation is to be
preferred to that of the Board of referees and of the Umpire
which, making the regularity of the work schedule and the
absence of fraud the only points to be considered, deprive the
section 44 disentitlement rule of much of its meaning by
making it excessively easy to circumvent. And it is also to be
preferred to the interpretation of the Commission which,
making it possible to systematically disqualify any employment
not permanent as such, makes too little allowance for practical
reality and is difficult to reconcile with the liberal spirit which
the Supreme Court has indicated must govern the interpreta
tion of the provisions applicable herein. Accordingly, the
application herein and in case No. A-1201-84 should be
allowed, and that in case No. A-1199-84 should be dismissed.
CASE JUDICIALLY CONSIDERED
FOLLOWED:
Abrahams v. Attorney Genera! of Canada, [1983] 1
S.C.R. 2, overruling [1982] 1 F.C. 839 (C.A.).
COUNSEL:
J. Levasseur and G. Leblanc for applicant.
R. Cousineau and G. Campeau for respon
dent.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Campeau, Cousineau & Ouellet, Montreal,
for respondent.
The following is the English version of the
reasons for judgment rendered by
PRATTE J.: Marceau J. has indicated the facts
underlying these three cases and clearly explained
the problem raised by them. I do not need to
repeat what he has already said.
The question, then, is as to the interpretation
that should be given to paragraph 44(1)(c) of the
Unemployment Insurance Act, 1971 [S.C. 1970-
71-72, c. 48]' since the decision of the Supreme
' The text of subsection 44(1) of this Act is 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 occupa
tion, whichever event first occurs.
Court in Abrahams v. Attorney General of
Canada. 2
In Abrahams, the Supreme Court reversed a
judgment of this Court and restored the decision of
the Umpire that a striking employee could be
"regularly engaged" in employment within the
meaning of paragraph 44(1)(c) if that employee
intended to leave the new employment at the end
of the strike and return to his usual occupation.
Wilson J., speaking for the Court, first considered
what interpretation should be given to the words
"regularly" in paragraph 44(1)(c). She answered
this by approving as follows [at page 8] the rea
sons given by the Umpire in support of his
decision:
The Umpire concluded that "regularly" was used not with
the connotation of duration of time but with the connotation of
"continuity". It was to be contrasted with "casual" and "inter-
mittent". You would not be "regularly engaged" if, for exam
ple, you were simply on call to report in on such days as you
were required. "Regularly", he thought, required a fixed pat
tern rather than a fixed period of employment. Two days a
week could be "regular" employment. A particular shift each
day could be "regular" employment. The required characteris
tic was not the duration of the hiring but the regularity of the
work schedule. It is implicit in this interpretation that the
employment need not be long-term. It may be for the duration
of the strike only so long as it is "regular" during the period of
its subsistence.
In my view this interpretation is to be preferred for a number
of reasons.
Wilson J. went on to indicate the reasons why she
preferred this interpretation to that adopted by
this Court. The first of these reasons was that if
the duration of the employment had been an essen
tial aspect of its regularity, it would have been
easy for the legislator to say so; the second was
that the interpretation adopted by the Court of
Appeal, according to which "regularly" meant
"permanently", would encourage striking
employees not to work, which would be inconsist
ent with the aim of the legislator in enacting
subsection 44(1). Speaking of the aim sought by
Parliament, Wilson J. said the following [at pages
9 and 10]:
I have concluded that again what the legislature was seeking to
deter was some sort of fraud on the Commission. A "token"
engagement in another occupation should not have the effect of
restoring benefits. It has to be a "regular" job and not just a
day or two here and there with no firm commitment by either
the claimant or the new employer. The legislative purpose in
2 [1983] 1 S.C.R. 2.
inserting the adverbial qualifications into both these paragraphs
was, in my view, to protect against abuses under the section. I
think the legislature wanted benefits to be restored if the
claimant had obtained bona fide employment elsewhere in his
usual occupation or if he had obtained regular employment in
another occupation, but it did not want "phony" claims.
The third reason given by Wilson J. in support
of her interpretation was that, in cases of doubt,
the provisions of the Unemployment Insurance
Act, 1971 should be interpreted in favour of the
payment of unemployment insurance benefits to
those in need of them.
Thus, the only passages in this judgment in
which Wilson J. interprets paragraph 44(1)(c) are
those which I have cited, and in which, first, she
summarizes and approves the decision of the
Umpire, and then, speaking of the purpose of
paragraph 44(1)(c), she says that "a day or two
here and there with no firm commitment by either
the claimant or the new employer" would not be
regular employment. The first of these two pas
sages seems to be the more important. Wilson J.
clearly says that what matters in determining
whether employment is engaged in regularly is not
the duration of the employment but its continuity,
or more precisely, the regularity of the work
schedule imposed on the employee. It necessarily
follows from this statement that employment
cannot be regularly engaged in if it is employment
for such a short time that it is impossible to
determine its continuity. The ideas of continuity
and of a regular work schedule necessarily assume
some duration. How can it be determined whether
an employee has a regular schedule if he has only
been hired for a day?—I think it is because of this
that Wilson J., at the beginning of the first pas
sage cited above, observed that the word "regular"
was to be contrasted not only with "intermittent"
but also with "casual". Someone who has casual
employment is therefore not engaged in it on a
regular basis. When will casual employment be
engaged in?—In my opinion, when a person is
hired for so short a time that it is actually impos
sible to determine the regularity of the work
schedule. Someone obtaining temporary employ
ment which could last for a long time may, in a
sense, be a casual employee; however, I cannot
think, bearing in mind the purpose of paragraph
44(1)(c), that such employment would be casual
within the meaning intended by Wilson J. in her
judgment. Accordingly, where an employee has
actually been hired to do work in accordance with
a regular work schedule, that employee when he
begins work is regularly engaged in an occupation
within the meaning of paragraph 44(1)(c).
It follows that, in these three cases, I cannot
find any error in the decision of the Umpire that
could justify intervention by the Court.
I would dismiss the application.
* * *
The following is the English version of the
reasons for judgment rendered by
MARCEAU J. (dissenting): I have thought it
advisable for purposes of analysis to join these
three applications to review and set aside made
pursuant to section 28 of the Federal Court Act
[R.S.C. 1970 (2nd Supp.), c. 10]. Though the
parties involved are not the same and the facts
differ from one to the other, all three raise the
same substantive question, and it seemed very
convenient to consider this problem at the same
time in relation to three sets of different facts. The
three subject decisions, moreover, come from the
same Umpire acting pursuant to the Unemploy
ment Insurance Act, 1971 and were rendered to
gether with identical reasons.
The problem presented concerns the interpreta
tion of one of these well-known provisions of the
Unemployment Insurance Act, 1971 dealing with
the disentitlement to benefits of someone who loses
his employment as the result of a stoppage of work
due to a labour dispute, provisions contained in
section 44, the first two subsections of which
should be cited in full at the outset:
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.
(2) Subsection (1) is not applicable if a claimant proves that
(a) he is not participating in or financing or directly interest
ed in the labour dispute that caused the stoppage of work;
and
(b) he does not belong to a grade or class of workers that,
immediately before the commencement of the stoppage,
included members who were employed at the premises at
which the stoppage is taking place and are participating in,
financing or directly interested in the dispute.
The rules contained in this section, which apply
to all cases of a strike or lockout, manifestly have
considerable practical significance and scope, and
it is easy to see why each of them has already been
the subject of a number of disputes which have led
to many decisions by the courts. Despite this, the
case at bar is to some degree new territory. On
January 25, 1983 the Supreme Court in Abrahams
v. Attorney General of Canada, [1983] 1 S.C.R. 2
handed down a judgment which, as regards the
interpretation of paragraph (1)(c) of the section,
overruled an elaborate and long-standing line of
decisions by the Umpire and opened a whole new
era as to its implementation. This is the first time
that this Court has been called on to consider
Abrahams to ensure that application of the section
is consistent with that case.
Until 1983, the Umpires had always insisted on
interpreting the provision contained in paragraph
44(1) (c) with some strictness. They pointed to the
fundamental importance of the disentitlement
mentioned in the section in the general scheme of
the Act—a disentitlement which is designed to
deny inactive employees who are not really unem
ployed access to funds intended essentially to assist
workers who, after losing their employment,
cannot at once find new employment; a disentitle-
ment which also ensures that the payment of ben
efits will not distort the application of the market
forces which should govern the solution of labour
disputes. In their opinion, the limits which para
graphs (b) and (c) place on the application of such
a fundamental rule were to be understood in light
of the idea which appeared to have been behind
them, namely removal of any possible influence on
conduct of the strike. Accordingly, most of them
were led to regard the phrase "regularly engaged
in some other occupation" used in paragraph (c) in
the sense of undertaking new duties in such a way
as to demonstrate some degree of disinvolvement,
dissociation or lack of interest in the outcome of
the labour dispute. This was a requirement which
was not expressly stated in paragraph (b), since
the phrase "bona fide employed" used there
meant, in terms of a special regulation, simply
being engaged in actual employment for at least
two consecutive weeks (see section 49 of the
Unemployment Insurance Regulations [C.R.C., c.
1576]). However, paragraph (b) applied to an
employee who became engaged elsewhere in the
occupation that he usually followed, to carry on his
own occupation with a competitor of his employer,
and it may have been thought that his action was
more eloquent testimony to his having parted com
pany with his striking companions. No regulatory
authority was conferred in connection with para
graph (c) (see section 58 of the Act), and the
wording could only be understood in its context,
without more. It was in any case established in the
leading decisions of the Umpire that a person who
had never distanced himself from the outcome of
the strike, had always intended to profit from it
and had in no way questioned the connection
between him and his employer could not claim to
have "become regularly engaged" in "some other"
occupation, held by him for a time during the
strike.
It is this prevailing line of authority in Umpire
decisions which was directly challenged in
Abrahams before the Supreme Court. The facts
could not have been more representative. Less than
a month after the beginning of the strike which
caused him to lose his employment as a driller,
appellant Abrahams obtained employment in a
hospital as an orderly. He worked as an orderly for
seven months, three days a week and seven and a
half hours a day, and then in spite of himself was
obliged to leave to undergo surgery. However,
Abrahams admitted when he filed his claim for
benefits that he had never intended to abandon his
occupation as a driller and planned to return to
work once the labour dispute had been settled,
thus terminating the stoppage of work which had
suspended activities at the premises of his former
employer; this Court [[1982] 1 F.C. 839] accord-
ingly reproved the Umpire for departing from the
established authorities in finding that, despite his
having a continuing interest in the dispute, the
claimant could be regularly engaged in his employ
ment of orderly within the meaning of paragraph
(c).
In a judgment reported in [1983] 1 S.C.R. 2,
the Supreme Court quashed the decision of this
Court. In its view, paragraph (c) should not be
interpreted by introducing the subjective element
of disinvolvement or final separation from the
labour dispute. The nature of the Act is such that
its provisions favouring the granting of benefits are
to be given a liberal interpretation, and the
Umpire was right to reject the restrictive approach
adopted by his brother judges. Giving the reasons
for judgment of the Court, Wilson J. wrote (at
page 8 of the report):
The Umpire concluded that "regularly" was used not with
the connotation of duration of time but with the connotation of
"continuity". It was to be contrasted with "casual" and "inter-
mittent". You would not be "regularly engaged" if, for exam
ple, you were simply on call to report in on such days as you
were required. "Regularly", he thought, required a fixed pat
tern rather than a fixed period of employment. Two days a
week could be "regular" employment. A particular shift each
day could be "regular" employment. The required characteris
tic was not the duration of the hiring but the regularity of the
work schedule. It is implicit in this interpretation that the
employment need not be long-term. It may be for the duration
of the strike only so long as it is "regular" during the period of
its subsistence.
In my view this interpretation is to be preferred ....
The interpretation in the prevailing line of
Umpire decisions was thus rejected once and for
all. The psychological aspect of disinvolvement in
the dispute had nothing to do with the case. The
existence of the condition required by paragraph
(c) to extinguish the disentitlement in principle
under subsection 44(1) would have to be deter
mined by criteria relating to the employment itself:
and the chief such criterion was that of regularity
of the work schedule.
All this was quite clear in light of the facts of
the case, but it needed to be further elaborated in
order to constitute guidelines for the future in
other situations. Accordingly, Wilson J. added fur
ther observations to those cited above. It is the
exact meaning of these further observations, and
so of the scope of the decision itself as a precedent,
which now requires clarification.
The three respondents had for several years (six,
six and five years respectively) been full-time
employees of Sidbec-Feruni, a subsidiary of the
Sidbec Dosco steel plant at Contre -Coeur, Quebec.
They were obliged to stop work on July 15, 1982
by reason of a stoppage of work due to a labour
dispute. All three were directly involved in the
outcome of the dispute and they, at no time
intended to abandon their employment, which they
expected to resume as soon as the dispute was
settled. However, while the work stoppage was in
progress all three of them found an occupation
other than their usual one. Martial Roy, a stock
room clerk, was hired by his brother from Septem-
ber 29 to October 8 to do work on a shelter used
by the latter in the summer to sell ice cream to
passers-by. It involved "doing painting, repairing
the roof and making shelves". Naturally they both
knew that the employment would only last for a
few days, but they did not know at the outset for
exactly how long. Gratien Jacques, an engine
driver, was hired from October 4 to 21 as a
truckman by a small soft drink distribution com
pany. He worked for a total of sixty-five hours,
spread unevenly over three weeks, in conditions
which the employer described as follows:
[TRANSLATION] Mr. Gratien Jacques had already worked for
us several years ago as a truckman. He came to us recently
looking for work. We hired him temporarily on an exceptional
basis to replace me and enable me to do something else. His
work consisted primarily of washing bottles and some work as a
truckman. Our company ordinarily hires six employees, and a
bit more in the summer, but never in the fall — and so this
hiring was an exceptional one. Only my husband and I are
working at the present time.
Marcel Cournoyer, a blacksmith, found work as a
labourer in a packing plant where he worked regu
larly from July 28, 1982 to October 6, until the
end of the annual harvest and the shut-down of the
company's packing operations.
In each of the three cases, the question which
the Commission obviously had before it was
whether, under the guidelines in Abrahams, the
claimant should be regarded as being "regularly
engaged in some other occupation" within the
meaning of paragraph 44(1)(c), thereby terminat
ing the disentitlement in principle which would
have prevented him from receiving benefits so long
as the labour dispute in which he was involved
continued. The Commission gave a negative
answer in all three cases and refused to admit the
validity of the claims, but the Board of referees
took a different view and the Umpire did likewise,
dismissing its appeal. That is how the question
came to this Court.
I should make one preliminary observation, sug
gested to me by the comment of the Umpire that it
was his intention not to "substitute his own assess
ment of the facts for that made by the Board of
referees". I do not really see how a dispute as to
the assessment of facts could arise here. There
never appeared to have been any problems as to
the facts themselves. It was my understanding that
no one was disputing, or had ever disputed, the
summary I have just made of them. The point at
issue is whether these facts correspond to those
falling within the rule of law relied on—in other
words, how they should be characterized, which of
course depends on the interpretation given to the
rule that is to be applied, and this clearly raises a
question of law. The Commission's disagreement
with the Board of referees and the Umpire was not
because its findings of fact did not tally with
theirs, but because its understanding of the inter
pretation given to paragraph 44(1)(c) in
Abrahams differed from theirs.
According to their decision, the members of the
Board of referees concluded from Abrahams that a
determination of whether a claimant was regularly
engaged in employment within the meaning of
paragraph 44(1)(c) should be based on consider
ation of the work system imposed by the employ
ment, for what really counts is the regularity of
the work schedule while the employment contin
ues. The Umpire approved this approach and
added one other point: [TRANSLATION] "Further-
more", he said, adopting the very wording of
Wilson J., "nothing here points to 'some sort of
fraud on the Commission' or 'a token engagement
in another occupation'. I cannot conclude that the
claimant has made a `phony' claim...." (page 100
of the Martial Roy case). Counsel for the respond
ents naturally adopted this in its entirety: [TRANS-
LATION] "Essentially", he submitted, "Abrahams
takes as the characteristics of the new employment
corresponding to section 44(1)(c) of the Act the
regularity of the work schedule and the absence of
any fraud on the Commission." (paragraph 13 of
Gratien Jacques submission). As in each of the
cases at issue there was some degree of regularity
in the work schedule of the new employment
engaged in by the claimant, and as in the absence
of proof of fraud, good faith must always be
presumed, paragraph 44(1)(c) would according to
this interpretation apply in all three cases.
The Commission and its counsel claimed to see
in Abrahams points which the Board of referees
and Umpire neglected. In their view, it can be seen
from reading the reasons for judgment as a whole
that the employment regularly engaged in, as
required by paragraph 44(1)(c), could not be
intermittent, temporary, seasonal or casual
employment—the word "casual" being taken, as
earlier in paragraph 3(2)(b), in the sense of devoid
of any aspect of continuity or periodic return. It
will readily be seen why this is so, they argued:
though the claimant's intent regarding the time he
plans to hold the employment is not important, it
is still necessary that he should at the outset have
some potential for or prospect of continuity. The
fact that, in each of the cases for consideration
here, the employment was in itself intermittent,
temporary, seasonal or casual is in their view
decisive: none of them could meet the require
ments of paragraph 44(1)(c).
I am sorry, but I am not fully convinced by
either argument. My first analysis and under
standing of the observations of Wilson J. does not
lead me to adopt either of the two possibilities
presented. I admit that it is possible to cite pas
sages from the decision which seem favorable to
either one side or the other, and counsel were able
to support their arguments with citations. How
ever, I do not think it is possible to take certain
observations of Wilson J. out of context and use
them without taking into account the particular
factors she had to consider, in light of the case
before her and the state of the case law at the
time, which she wished to discuss and reject.
The more I reread the remarks of Wilson J., the
more I am struck by two words which seem to
stand out more than any others: "firm commit-
ment". It now appears that these are the key words
in the entire analytical framework resulting from
that case. The "sort of fraud on the Commission",
which is mentioned as being the "wrong" which
Parliament wished to avoid, does not appear to be
that resulting from a plot, deceit or untruth
intended to suggest that something is what it is
not. There was simply no need for special legisla
tion to cover this type of fraud. Engaging in a
"regular" occupation unquestionably says more
than genuinely engaging in a genuine occupation.
The "sort of fraud" mentioned is, it seems to me,
that resulting from engaging in an occupation but
without a firm and serious commitment and
merely to circumvent the disentitlement rule stated
in section 44, without the kind of real commitment
a person wishing to leave the ranks of the unem
ployed is ready to make. I think that Wilson J. had
this in mind when she reviewed the possible char
acteristics of the employment: its duration, its
circumstances, the work schedule it involves, and
whether it is permanent, temporary or casual, for
these are the characteristics which will establish
the seriousness of the commitment. Sometimes the
evidence will be clear: a commitment intended for
a limited time, one that is purely casual and
apparently made for temporary purposes, or one
that is intermittent, subject to a schedule depend
ing on the whim of the employer, will rarely entail
a serious commitment. Usually, however, it will be
necessary to analyze the circumstances and the
situation as a whole, whatever the particular char
acteristics of the employment, for it certainly
cannot be deduced merely from the fact that
employment is temporary, seasonal and without a
pre-established and fixed schedule that the com
mitment in question is not genuine, entire and
serious.
There undoubtedly will be those who will hasten
to object to my interpretation of the observations
of Wilson J. that it leaves the paragraph 44(1)(c)
provision without any strict, specific criteria for
application. However, in my view it is illusory to
think that a provision of this kind, which seeks to
reconcile such diverse interests in actual, practical
situations, can ever be applied like a mathematical
formula. The interpretations defended by the par
ties at bar undoubtedly lead to a rule that is easier
to apply, but at what cost! That of the Board of
referees and the Umpire—which would make the
regularity of the work schedule and the absence of
fraud resulting from untrue statements about the
reality of the employment the only points to be
considered—deprives the section 44 disentitlement
rule of much of its meaning by making it exces
sively easy to get around the rule. That of the
Commission—which would make it possible to
systematically disqualify any employment not per
manent as such—makes too little allowance for
practical reality and is difficult to reconcile with
the open and liberal spirit which the Supreme
Court has indicated must be present in interpret
ing the provisions of social legislation on the distri
bution of benefits, like that in question here.
Accordingly, my understanding of the rule con
tained in Abrahams does not correspond to those
suggested by the parties at bar. What I conclude
from that case is that a striking worker will be
considered to have engaged in a "regular" occupa
tion within the meaning of paragraph 44(1)(c),
and by so doing to have terminated the automatic
disentitlement resulting from his status as a strik
er, if the new employment temporarily held by him
had characteristics which established a firm and
serious commitment on his part. Applying this
rule, I have no problem disposing of the three cases
at bar. It seems to me that by agreeing to do
certain manual work for his brother on a small
booth to be used for the sale of ice cream, the
respondent Roy did not "become regularly
engaged in some other occupation" within the
meaning of paragraph 44(1)(c); nor did the
respondent Jacques when he accepted employment
that was purely casual and a matter of conve
nience, offered to him by the soft drink distribu
tion company for three weeks. However, I feel that
the respondent Cournoyer became "regularly
engaged in some other occupation" when a few
days after the strike began, in July, he took a
full-time job with the packing plant, which he
intended to keep right till the end of the season in
October: the characteristics of the employment in
the last case, despite its seasonal nature and the
conditions under which it was assumed and con
tinued, in my view establish the seriousness of his
commitment.
For this reason, I would allow the application in
case No. A-1198-84, set aside the decision of the
Umpire and refer the matter back to him to be
again decided on the basis that the claimant-
respondent could not, in the circumstances dis
closed by the evidence, take advantage of the
provisions of paragraph 44(1)(c). I would do like
wise in case No. A-1201-84; but I would dismiss
the application in case A-1199-84.
* * *
The following is the English version of the
reasons for judgment rendered by
MACGUIGAN J.: The point at issue concerns the
interpretation of the Unemployment Insurance
Act, 1971 ("the Act") regarding the general disen-
titlement of claimants who have lost their employ
ment due to a labour dispute.
It was admitted that the claimant/respondent
lost his employment by reason of a labour dispute.
He was unable to resume work as a stockroom
clerk when he returned from vacation on July 15,
1982 because of a labour dispute at the premises of
his employer, Sidbec-Feruni. During the labour
dispute he was employed by his brother's business,
Royaume de la Crème Glacée, for the period from
September 29 to October 8, 1982 in painting and
maintenance work. At that point, the business shut
down for the winter.
On October 14 the respondent applied for unem
ployment insurance benefits, but the Employment
and Immigration Commission ("the Commission")
found he was not entitled to benefits. A Board of
referees unanimously allowed his appeal on the
basis of paragraph 44(1)(c) of the Act and found
that the respondent had become regularly engaged
in another occupation. On May 6, 1983, the Com
mission appealed to an Umpire. In a judgment
dated September 27, 1984 the Umpire upheld the
decision of the Board of referees: hence the
application at bar pursuant to section 28 of the
Federal Court Act.
Paragraph 44(1)(c) of the Unemployment In
surance Act, 1971 is worded 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.
Briefly, the applicant's argument is that the
Umpire erred in law in interpreting paragraph
44(1)(c) of the Act as he did, and that he arrived
at an erroneous finding of fact by concluding that
the facts of the case at bar require this paragraph
to be applied.
This paragraph has recently been considered by
the Supreme Court of Canada in Abrahams v.
Attorney General of Canada, [1983] 1 S.C.R. 2,
at pages 8-10, and Wilson J. said for the Court:
The Umpire concluded that "regularly" was used not with
the connotation of duration of time but with the connotation of
"continuity". It was to be contrasted with "casual" and "inter-
mittent". You would not be "regularly engaged" if, for exam
ple, you were simply on call to report in on such days as you
were required. "Regularly", he thought, required a fixed pat
tern rather than a fixed period of employment. Two days a
week could be "regular" employment. A particular shift each
day could be "regular" employment. The required characteris
tic was not the duration of the hiring but the regularity of the
work schedule. It is implicit in this interpretation that the
employment need not be long-term. It may be for the duration
of the strike only so long as it is "regular" during the period of
its subsistence.
In my view this interpretation is to be preferred for a number
of reasons. The first is the one I have already mentioned,
namely, that the legislature had the matter of duration very
much in mind under para. (b), sufficiently so to prescribe a
two-week minimum period. Had duration been a feature of
para. (c) also, it seems reasonable to assume that it would have
inserted a like provision with respect to it. Its failure to do so
prompts me to seek another interpretation.
I have concluded that again what the legislature was seeking to
deter was some sort of fraud on the Commission. A "token"
engagement in another occupation should not have the effect of
restoring benefits. It has to be a "regular" job and not just a
day or two here and there with no firm commitment by either
the claimant or the new employer. The legislative purpose in
inserting the adverbial qualifications into both these paragraphs
was, in my view, to protect against abuses under the section. I
think the legislature wanted benefits to be restored if the
claimant had obtained bona fide employment elsewhere in his
usual occupation or if he had obtained regular employment in
another occupation, but it did not want "phony" claims.
Since the overall purpose of the Act is to make benefits
available to the unemployed, I would favour a liberal interpre
tation of the re-entitlement provisions. I think any doubt arising
from the difficulties of the language should be resolved in
favour of the claimant. [My emphasis.]
It might perhaps be concluded from reading this
passage that the Supreme Court recognized the
regularity of employment required by paragraph
44(1) (c) as having only one characteristic, namely
that it must avoid fraud, abuses, "phony" claims
for benefits. In my opinion it would be more
correct to interpret this judgment as requiring the
presence of two conditions for such regularity: the
first is negative, and consists in the absence of
fraud and so on; the second is positive and requires
the claimant to establish positively that he regular
ly engaged in some other occupation. It cannot be
concluded that regular employment exists only in
the absence of fraud. Regularity must also be
established.
The applicant argued that this positive condition
is met by the durability of the other occupation. If
that is true, any temporary or seasonal employ
ment would be excluded. The employment found
acceptable by the Supreme Court in Abrahams
was undoubtedly permanent, though the way the
claimant engaged in it was limited. Thus, for
example, Wilson J. excludes "just a day or two
here and there with no firm commitment by either
the claimant or the new employer".
However, in my opinion the scope of Abrahams
cannot be limited strictly to the facts of that case.
If the legislator's purpose is "to protect against
abuses under ... section [44]", all short-term
employments cannot be excluded. Any genuine
employment must be acceptable.
It seems to me that the respondent is correct:
the only regularity required of the employment
depends on the nature of the work itself. In this
sense, the durability required of seasonal employ
ment is only seasonal duration, or of short-term
employment, temporary duration. Of course, a
period might be much too short to be accepted as
genuine, as for example if it were "a day or two
here and there with no firm commitment by either
the claimant or the new employer"; but this surely
is a question of fact and not of law, which the
Board of referees had to consider.
In the case at bar, as the Umpire noted, there
was no question of fraud or of any "phony"
application (the negative condition), and the
Board of referees carefully considered the essential
components for establishing the positive condition:
[TRANSLATION] It was established that the claimant was regu
larly engaged in a new occupation with his new employer, and
in accordance with the rules stated in the Supreme Court
judgment mentioned above [Abrahams], the temporary princi
ple cannot be considered in the instant case, since to begin with
the hiring was for an indefinite period in any case and the
claimant worked regularly for his new employer for the dura
tion of his new employment.
The applicant further argued that the decision
of the Board of referees was vitiated by an error of
fact, but in the absence of any erroneous finding of
fact that the board made in a perverse or capri
cious manner or without regard for the material
before it, this Court cannot intervene under section
28 of the Federal Court Act. There is evidence in
the case at bar on which a finding of eligibility
could be based. Even if I did not come to the same
conclusion on the facts, I would not be entitled to
set aside the decision for that reason.
Accordingly, I would uphold the decision of the
Umpire and dismiss the applicant's application.
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.