A-521-86
Clarence Zwarich (Applicant)
v.
Attorney General of Canada (Respondent)
INDEXED AS: ZWARICH V. CANADA (ATTORNEY GENERAL)
Court of Appeal, Pratte, Heald and Mahoney
JJ.—Vancouver, June 8; Ottawa, June 17, 1987.
Unemployment insurance — Loss of employment as result
of lock-out — Application for benefits rejected on basis of s.
44(1) Unemployment Insurance Act, 1971 — Under s. 44(1),
claimant not entitled to receive benefits where loss of employ
ment due to work stoppage resulting from labour dispute —
Umpire dismissing appeal on ground neither he nor Board of
Referees having jurisdiction to decide whether s. 44(1) in
violation of Charter ss. 7 and 15 — Incumbent on Board of
Referees and Umpire to determine law, i.e. to construe statutes
and regulations and decide whether validly enacted — Umpire
erred in failing to consider applicant's Charter argument —
Failure not vitiating decision since no merit in argument — S.
44(1) necessary to ensure Unemployment Insurance Commis
sion's impartiality — S. 28 application against Umpire's
decision dismissed — Unemployment Insurance Act, 1971,
S.C. 1970-71-72, c. 48, s. 44(1) — Federal Court Act, R.S.C.
1970 (2nd Supp.), c. 10, s. 28.
Constitutional law — Charter of Rights — Life, liberty and
security — Employee's application for unemployment insur
ance benefits following lock-out rejected pursuant to s. 44(1)
of Act — Failure by Umpire to consider employee's argument
s. 44(1) contravening Charter ss. 7 and 15 — Failure not
vitiating Umpire's decision to dismiss appeal — S. 44(1)
neither fundamentally unjust nor unreasonable — Necessary
to ensure Unemployment Insurance Commission's impartiality
and to prevent use of funds to support employees in labour
dispute — Unemployment Insurance Act, 1971, S.C. 1970-71-
72, c. 48, s. 44(1) — Canadian Charter of Rights and
Freedoms, being Part I of the Constitution Act, 1982, Schedule
B, Canada Act 1982, 1982, c. 11 (U.K.), ss. 7, 15, 24(1).
CASE JUDICIALLY CONSIDERED
CONSIDERED:
Re Schewchuk and Ricard; Attorney-General of British
Columbia et al; Intervenors (1986), 28 D.L.R. (4th) 429
(B.C.C.A).
COUNSEL:
Carolyn McCool for applicant.
Paul Partridge for respondent.
SOLICITORS:
Legal Services Society of British Columbia,
Vancouver, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
PRATTE J.: This section 28 application [Federal
Court Act, R.S.C. 1970 (2nd Supp.), c. 10] is
directed against a decision of an Umpire under the
Unemployment Insurance Act, 1971 [S.C. 1970-
71-72, c. 48].
The applicant had lost his employment as a
result of the decision of his employer to lock out
his employees during the negotiation of a collective
agreement. He applied for unemployment insur
ance benefit. His application was rejected by the
Unemployment Insurance Commission for the
reason that, pursuant to subsection 44(1) of the
Unemployment Insurance Act, 1971, "A claimant
who has lost his employment by reason of a stop
page 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".
The applicant appealed from that decision to a
Board of Referees. His appeal was dismissed. He
then appealed to an Umpire and invoked, as his
sole ground of appeal, that subsection 44(1) of the
Unemployment Insurance Act, 1971 violates sec
tions 7 and 15 of the Canadian Charter of Rights
and Freedoms [being Part I of the Constitution
Act, 1982, Schedule B, Canada Act 1982, 1982,
c. 11 (U.K.)] and is for that reason invalid. That
ground of appeal had also been raised before the
Board of Referees; they had refused to consider it.
The Umpire did not pronounce on that argument
either. He was of the view that neither he nor the
Board of Referees were courts having the jurisdic-
tion, under subsection 24(1) of the Charter,' to
determine whether subsection 44(1) of the Unem
ployment Insurance Act, 1971 violates the Chart
er. For that reason, he dismissed the appeal.
It is clear that neither a board of referees nor an
umpire have the right to pronounce declarations as
to the constitutional validity of statutes and regu
lations. That is a privilege reserved to the superior
courts. However, like all tribunals, an umpire and
a board of referees must apply the law. They must,
therefore, determine what the law is. And this
implies that they must not only construe the rele
vant statutes and regulations but also find whether
they have been validly enacted. If they reach the
conclusion that a relevant statutory provision vio
lates the Charter, they must decide the case that is
before them as if that provision had never been
enacted. The law on this subject, as I understand
it, was clearly and accurately stated by Macfar-
lane J.A. of the Court of Appeal of British
Columbia in Re Schewchuk and Ricard; Attor-
ney-General of British Columbia et al;
Intervenors: 2
It is clear that the power to make general declarations that
enactments of Parliament or of the Legislature are invalid is a
high constitutional power which flows from the inherent juris
diction of the superior courts.
But it is equally clear that if a person is before a court upon a
charge, complaint, or other proceeding properly within the
jurisdiction of that court then the court is competent to decide
that the law upon which the charge, complaint or proceeding is
based is of no force and effect by reason of the provisions of the
Canadian Charter of Rights and Freedoms, and to dismiss the
charge, complaint or proceeding. The making of a declaration
that the law in question is of no force and effect, in that
context, is nothing more than a decision of a legal question
properly before the court. It does not trench upon the exclusive
right of the superior courts to grant prerogative relief, including
general declarations.
The Umpire had to decide whether the decision
of the Board of Referees was in accordance with
the law. This he could not do, in my view, without
determining whether the statutory provision that
' That provision reads as follows:
24. (1) Anyone whose rights or freedoms, as guaranteed by
this Charter, have been infringed or denied may apply to a
court of competent jurisdiction to obtain such remedy as the
court considers appropriate and just in the circumstances.
2 (1986), 28 D.L.R. (4th) 429, at pp. 439-440.
had been applied by the Board was constitutionally
valid.
The Umpire erred, therefore, in failing to con
sider the applicant's argument that subsection
44(1) of the Unemployment Insurance Act, 1971
contravenes sections 7 and 15 of the Charter. This
error, however, does not vitiate his decision
because there is obviously no merit in the appli
cant's Charter argument. The rule that is found in
subsection 44(1) is neither fundamentally unjust
nor unreasonable; on the contrary, it is necessary
in order to ensure that the Unemployment Insur
ance Commission will not take sides in labour
complaints and that the funds of the Unemploy
ment Insurance Commission will not be used to
lend support to employees in a labour dispute with
their employer.
I would, for these reasons, dismiss the
application.
HEALD J.: I agree.
MAHONEY 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.