A-133-76
Rejeanne Rondeau (Applicant)
v.
Paul A. Simard, Pierre Brouillet and Gerard
Fevre (Respondents)
and
Unemployment Insurance Commission and
Deputy Attorney General of Canada (Mis -en-
cause)
Court of Appeal, Jackett C.J., Le Dain J. and
Hyde D.J.—Montreal, November 12, 1976;
Ottawa, January 21, 1977.
Judicial review—Unemployment insurance benefits—
Whether error of law by Board of Referees on hearing appeal
from Unemployment Insurance Commission Whether sec
tions providing for disqualification under the Act can operate
even though the requirements of s. 25 have not been met—
Unemployment Insurance Act, S.C. 1970-71-72, c. 48, ss. 19,
20(5), 25, 33, 36, 40, 41 and 43—Unemployment Insurance
Regulations, s. 151—Federal Court Act, s. 28.
Applicant claims that by virtue of section 20(5) of the
Unemployment Insurance Act, 1971 and Regulation 151, her
original benefit period should have been considered as cancelled
and that consequently, by virtue of section 19, a new initial
benefit period would have begun at the time of her second
application for benefits and the illness claim would fall in that
period before it was re-established or extended. In other words,
there can have been no disqualification from receiving benefits
under sections 40 or 41 because, having failed to meet the
requirements of section 25, she was not entitled to receive
benefits.
Held, the application is dismissed. A disqualification may
arise by virtue of facts that fall under section 40 or section 41
even though they arise before the prima facie right to payment
of benefits arises. In other words, by virtue of section 43, a
person may become subject to disqualification under section 40
or section 41 at a time when he has not satisfied the require
ment of section 25: once the disqualification arises it operates
to prevent payment when the prima facie right to benefit
crystallizes subsequently. As to whether the Board erred in law
in finding the applicant available for work, availability is a
question of fact and no argument has been put forward to
suggest that the conclusion reached by the Board was erroneous
within the meaning of section 28(1)(c) of the Federal Court
Act.
APPLICATION for judicial review.
COUNSEL:
Paul Faribault for applicant.
Guy Leblanc for respondents and mis -en-
cause.
SOLICITORS:
Landreville and Bourduas, Joliette, P.Q., for
applicant.
Deputy Attorney General of Canada for
respondents and mis -en-cause.
The following are the reasons for judgment
rendered in English by
JACKETT C.J.: This is a section 28 application'
to set aside a "decision" of a Board of Referees set
up under the Unemployment Insurance Act,
1971 2 . After a full hearing, judgment was
reserved.
As the record is scanty, I deem it advisable to
summarize it. In so far as relevant, as I understand
it, the record may be summarized as follows:
1. The applicant made what appears to be an
"initial claim for benefit"' dated September 9,
1974, showing that she had been last employed as
a waitress at "Restaurant Autoroute de l'est" from
May 9, 1974 to September 5, 1974, and that she
had voluntarily left that employment (apparently
there was attached to the claim document a note
saying that she had left the employment because,
' See section 28(1) of the Federal Court Act, which reads:
28. (1) Notwithstanding section 18 or the provisions of
any other Act, the Court of Appeal has jurisdiction to hear
and determine an application to review and set aside a
decision or order, other than a decision or order of an
administrative nature not required by law to be made on a
judicial or quasi-judicial basis, made by or in the course of
proceedings before a federal board, commission or other
tribunal, upon the ground that the board, commission or
tribunal
(a) failed to observe a principle of natural justice or
otherwise acted beyond or refused to exercise its
jurisdiction;
(b) erred in law in making its decision or order, whether
or not the error appears on the face of the record; or
(c) based its decision or order on an erroneous finding of
fact that it made in a perverse or capricious manner or
without regard for the material before it.
2 S.C. 1970-71-72, c. 48.
3 Cf. section 20(1)(b) of the statute.
by reason of a change in her working hours, she
had to take a taxi).
2. Supplementary information was apparently
given by the applicant by telephone on September
16, 1974, to the following effect:
[TRANSLATION] When I began working for this employer my
hours of work were from four o'clock to midnight. After some
time, my employer decided to institute rotating shifts. I was
travelling by car with my daughter—and as I had to change
shifts I had no means of transportation; it cost me six dollars a
day to take a taxi. When I worked from four o'clock to
midnight, my husband looked after my child. I cannot leave her
with anyone else, because she is deaf and "retarded". I would
like to be able to find work from four o'clock to midnight. If the
owner of the restaurant where I worked went back to the hours
at which I started, I would be prepared to return.
3. By a document entitled "Avis d'Exclusion"
dated September 25, 1974, addressed by the Com
mission to the applicant, she was advised, in part,
as follows:
[TRANSLATION] On the information which has been presented
in connection with your claim for benefit, you are disqualified
under section 41(1) of the Unemployment Insurance Act. This
section of the Act provides that an insured person may be
disqualified from receiving benefits if he lost his employment
by reason of his own conduct or voluntarily left his employment
without just cause.
In reference to your employment with Restaurant Autoroute, it
is considered that you have ...
[]x left your employment without just cause
Benefit is therefore suspended for the first 2 weeks for which
benefit would otherwise be payable, and it will be deemed to
have been paid for such weeks. This has the effect of reducing
your potential benefit entitlement by 2 weeks.
4. A notice dated September 30, 1974, to the
Commission from the Manpower Division of the
Department of Manpower and Immigration show
ing that the applicant had refused to accept an
employment offer as a waitress at "Miss Dany"
restaurant contained the following comment:
[TRANSLATION] Difficult in choice of working hours. Had
appropriate evening employment as requested by this client.
Availability doubtful.
5. By a document entitled "Avis d'Exclusion"
dated October 8, 1974, addressed by the Commis
sion to the applicant, she was advised, in part, as
follows:
[TRANSLATION] On the information which has been presented
in connection with your claim for benefit, you are disqualified
under section 40(1) of the Unemployment Insurance Act. This
section of the Act provides that a claimant shall be disqualified
from receiving benefit if after becoming aware of an opportu
nity for suitable employment he has without good cause
refused, failed to apply or accept an offer of such employment.
Under section 40(1) of the Act, good cause is considered to be
established if under all the circumstances the claimant acts
prudently in a manner which a person will normally be expect
ed to follow in like circumstances.
In your case, you were aware of a situation in suitable employ
ment with Miss Dany.
On the basis of the evidence presented, it is considered that,
without good cause, you have refused, failed to apply for or to
accept this situation when you became aware of it, and benefit
is therefore suspended for the first 3 weeks for which benefits
would otherwise be payable. Benefit will be deemed to have
been paid for such weeks, which has the effect of reducing your
potential entitlement by 3 weeks.
6. By another document dated October 8, 1974
(entitled "Avis de Refus") addressed by the Com
mission to the applicant, she was advised, in part:
[TRANSLATION] On the information which has been presented
in connection with your claim for benefits, under sections
25(a), 33(2) and 360) of the Act, you have failed to prove that
you are available for work. You refused employment offered by
the Canada Manpower Centre on September 19, 1974. You are
therefore not eligible to receive benefits after October 13, 1974,
as long as this situation continues.
7. The applicant wrote a letter to the Commission
bearing date October 17, 1974, the body of which
reads:
[TRANSLATION] Following a telephone conversation with
someone in your office this afternoon, I am providing reasons
why I recently refused employment. First, I should tell you that
I have a retarded child at home, and this year we have been
unable to find a school for her until now, but we believe we will
soon have her learn handicrafts. At that time she will be gone
all day, and I will be free to go to work. I quit work at the Miss
Autoroute restaurant because I was hired for four o'clock to
midnight. My husband was here to look after her, but shortly
before I left my job the owners had decided to institute rotating
shifts, and I could not continue for the reason I gave above.
This was also why I refused the job I was offered at the Miss
Dany restaurant. It was for work until closing time, and there
was the question of transportation also, since a taxi costs three
dollars for the trip there.
Therefore, sir, I feel that my reasons are quite valid. Please
take this letter into consideration and have my cheque mailed
to me; I have had benefit cards for two weeks, and I assure you
I very much need the money.
8. The applicant wrote to the Commission a letter
bearing date November 28, 1974, and reading as
follows:
[TRANSLATION] This is to inform you that I returned to
work last Monday, November 18. As I told you, I went to work
as soon as I could. I would like to receive the benefits owed to
me. I have filled in several cards. Please send the cheques.
Thank you.
9. By a document (entitled "Avis de Réexamen")
dated December 18, 1974, the Commission advised
the applicant, in part:
[TRANSLATION] You were previously informed that you were
not entitled to benefits. Additional information has since been
received concerning your claim for benefit and examination of
this information has resulted in the following decision:
the disqualification imposed from October 13, 1974, under
sections 25(a), 33(2) and 36(1) of the Act, while the situa
tion continued, terminated on November 15, 1974.
10. The applicant made a claim for benefit dated
April 1, 1975, showing that she had been last
employed by "Little Princess Childrens" from
November 18, 1974 to March 10, 1975, that she
left on account of illness, and that she was still ill.
11. By a document (entitled "Avis de Refus")
dated April 28, 1975, the Commission advised the
applicant, in part:
[TRANSLATION] On the information which has been presented
in connection with your claim for benefit, you are not capable
of work because of illness. Under section 33(2) of the Act, you
may not receive benefit for any working day in a week in your
benefit period if you fail to prove you were capable of and
available for work. You are therefore not entitled to receive
benefit after March 31, 1975.
12. A solicitor's letter (from Messrs. Landreville
& Bourduas) bearing date July 31, 1975 was
written to the Commission regarding the appli
cant. The body of that letter reads:
[TRANSLATION] Following our recent conversation on the
subject of this case, we hereby give you notice of our position.
Our client requests cancellation of the initial benefit period
which was established for her beginning September 15, 1974.
Our client requests cancellation of this benefit period under
section 20(5), because no benefit was payable since she stated
that she was not available for work for the period of September
15 to November 18, 1974.
Since she was not available, the disqualifications imposed on
her automatically fail, because she did not fulfil the prerequi
site condition for receiving unemployment insurance benefits:
when someone is not entitled to the first stage, there can be no
question of imposing disqualifications, which can occur only in
the second stage of the process. This results from CUB deci
sions Nos. 172 and 764.
Therefore, if no benefit was payable to her and none was
paid, and since the disqualifications contained in sections 40
and 41 of the Act are not applicable, it would be proper to
cancel this period and the period of benefits established for our
client on September 15, 1974.
If you should reject our request, please consider this letter as
an application for appeal to the Board of Referees.
13. A "Record of Proceedings and Decision of
Board of Referees" concerning the applicant bear
ing date September 12, 1975, reads, in part:
[TRANSLATION] ISSUE: Can the benefit period effective Sep-
tember 15, 1974 be cancelled?
The claimant came to the hearing of her case with her counsel,
Mr. Paul Faribault.
Referring to the record and to the statements of the claimant
and her counsel, the Board of Referees is unanimous in ruling
that the benefit period effective September 15, 1974 cannot be
cancelled.
(A) The claimant was on the labour market at the time of her
initial claim, filed on September 9, 1974.
(B) Her restricted availability brought about the disqualifica
tions noted in the record.
(C) The Board of Referees is of the opinion that section 43(2)
applies, rather than section 20(5) and Regulation 151(b).
The section 28 application reads, in so far as
applicable, as follows:
[TRANSLATION] The claimant, through her undersigned
solicitors, gives notice that she requests review and cancellation
of the respondents' decision, rendered on September 12, 1975
as a Board of Referees within the meaning of the Unemploy
ment Insurance Act, 1971.
To understand what is the "decision" that is the
subject of this section 28 application, it is neces
sary to have in mind:
(a) the provisions of the Unemployment Insurance
Act, 1971, as amended, in so far as they relate to
the substantive law governing the question whether
the applicant has a right to be paid benefits under
that Act, and
(b) the provisions of that Act, in so far as they
relate to the procedure established by that Act for
determining such a question in so far as relevant in
the circumstances. 4
In so far as the substantive law is concerned, the
following provisions of the Act would seem to
require consideration:
17. (1) Unemployment insurance benefits are payable as
provided in this Part to an insured person who qualifies to
receive such benefits.
(2) An insured person qualifies to receive benefits under this
Act if he
(a) has had eight or more weeks of insurable employment in
his qualifying period, and
(b) has had an interruption of earnings from employment.
18. The qualifying period of an insured person is the shorter
of
(a) the period of fifty-two weeks that immediately precedes
the commencement of an initial benefit period under subsec
tion (1) of section 20, and
(b) the period that begins on the commencement date of an
immediately preceding initial benefit period and ends with
the end of the week preceding the commencement of an
initial benefit period under subsection (1) of section 20.
19. When a person who qualifies under section 17 makes a
claim for the purpose of establishing an initial benefit period,
an initial benefit period shall be established for him and
thereupon benefits are payable to him in accordance with this
Part for each week of unemployment of the claimant that falls
in the initial benefit period.'
20. (1) An initial benefit period begins on the Sunday of the
week in which
(a) the interruption of earnings occurs, or
(b) the initial claim for benefit is made,
whichever is the later.
(3) An initial benefit period shall not be established for the
claimant if a prior initial benefit period or any benefit period
that arises from the prior initial benefit period has not
terminated.
(5) Where an initial benefit period is established for a
claimant but benefit is not payable or has not been paid in
respect of that benefit period, the initial benefit period may,
subject to prescribed conditions, be cancelled and regarded as
4 Chapter 80 of 1974-75-76, which was assented to on
December 20, 1975, would not seem to have any bearing on the
matter as the decision that is the subject of the section 28
application was rendered on September 12, 1975.
5 It may be assumed, from the course of proceedings, that the
claimant qualified under section 17 in respect of both the first
and second claims.
not having begun. 6
21. (1) A week of unemployment for a claimant is a week in
which he does not work a full working week.
22. The maximum number of weeks for which initial ben
efits may be paid in an initial benefit period shall be based on
the number of weeks of insurable employment of the claimant
in his qualifying period as shown in Table 1 of Schedule A.
23. A claimant is not entitled to be paid benefit for a week in
an initial benefit period until following the commencement of
that initial benefit period he has served a two week waiting
period that begins with a week of unemployment for which
benefits would otherwise be payable.
24. (1) The rate of weekly benefit payable to a claimant for
a week that falls in an initial benefit period
(a) in the case of a claimant without a dependant is an
amount equal to sixty-six and two-thirds per cent of his
average weekly insurable earnings in his qualifying weeks or
twenty dollars, whichever is the greater, and
25. A claimant is not entitled to be paid benefit for any
working day in an initial benefit period for which he fails to
prove that he was either
(a) capable of and available for work and unable to obtain
suitable employment on that day, or
(b) incapable of work by reason of any prescribed illness,
injury or quarantine on that day.
32. Immediately following the termination of an initial ben
efit period under subsection (6) of section 20, that initial
benefit period shall be re-established for a further period of ten
weeks from the date on which it would have terminated under
that section.
33....
(2) Notwithstanding paragraph (b) of section 25, a claimant
is not entitled to be paid benefit for any working day in a week
in the re-established portion of his initial benefit period for
6 With this provision there should be read Regulation 151
[SOR/71-324], which reads:
151. An initial benefit period that was established in
respect of a claimant shall be cancelled and regarded as not
having begun
(a) where the period has terminated and no benefit was
payable or paid in respect of the period, and
(b) where the period has not terminated, no benefit was
payable or paid in respect of the lapsed portion of the period,
and the claimant requests that it be so regarded.
which he fails to prove that he was capable of and available for
work and unable to obtain suitable employment.
34....
(2) An extended benefit period begins at the termination of
a re-established initial benefit period.
36. (1) Notwithstanding paragraph (b) of section 25, a
claimant is not entitled to be paid benefits for any working day
in a week in an extended benefit period for which he fails to
prove that he was capable of and available for work and unable
to obtain suitable employment.
40. (1) A claimant is disqualified from receiving benefits
under this Part if without good cause
(a) he refuses or fails to apply for a situation in suitable
employment that is vacant, after becoming aware that such
situation is vacant or becoming vacant, or fails to accept such
a situation after it has been offered to him;
41. (1) A claimant is disqualified from receiving benefits
under this Part if he lost his employment by reason of his own
misconduct or if he voluntarily left his employment without just
cause.
43. (1) Where a claimant is disqualified under section 40 or
41 from receiving benefits, the disqualification shall be for such
weeks following his waiting period, not exceeding three, for
which benefit would otherwise be payable as are determined by
the Commission.
(2) For the purposes of this Part, a benefit shall be deemed
to be paid for any weeks of disqualification under subsection
(1).
In so far as procedure is concerned, the following
provisions of the Act would seem to require
consideration:
53. No benefit is payable to any person under this Act unless
a claim therefor has been made by him or on his behalf to the
Commission, and any information required by the Commission
has been supplied, in the prescribed manner.
54. No person is entitled to any benefit under this Act until
he proves that
(a) he is qualified to receive benefit,
(b) he meets the requirements entitling him to receive ben
efit, and
(c) no circumstances or conditions exist that have the effect
of disentitling or disqualifying him from receiving benefit.
55. Upon receiving a claim for benefit the Commission shall
decide whether or not benefit is payable to the claimant
pursuant to this Act and determine the amount to be paid and
notify the claimant of its decision.
56. The Commission may at any time within fourteen days
of receiving a claim refer that claim or a question arising
therefrom to a board of referees for decision thereon.
57. (1) The Commission may at any time within thirty-six
months after benefit has been paid under this Act or the former
Act reconsider claims made at a prior time and if the Commis
sion determines that a person has received money by way of
benefit thereunder for any period in respect of which he was not
qualified or any money by way of benefit to which he was not
entitled, the Commission shall calculate the amount so
received, and that amount is, subject to appeal under section
94, the amount repayable under section 49.
(2) The day that the Commission notifies the person of the
amount calculated under subsection (1) to be repayable under
section 49 shall for the purposes of subsection (4) of section 49
be the date on which the liability arises thereunder.
91. (1) There shall be boards of referees, consisting of a
chairman and one or more members chosen from employers or
representatives of employers and an equal number of members
chosen from insured persons or representatives of insured
persons.
94. (1) The claimant or an employer of the claimant may at
any time within thirty days from the day on which a decision of
the Commission is communicated to him, or within such fur
ther time as the Commission may in any particular case for
special reasons allow, appeal to the board of referees in the
manner prescribed.
(2) A decision of a board of referees shall be recorded in
writing and shall include a statement of the findings of the
board on questions of fact material to the decision.
Assuming that I have not overlooked some rele
vant provision, the matter before the Board of
Referees giving rise to the decision that is the
subject of this section 28 application might, on the
facts appearing from the file, have belonged to one
of two classes, viz:
(a) an appeal from a decision by the Commission
under section 55 that benefit was not payable to
the claimant, or
(b) a reference from the Commission to the Board
under section 56 of a "claim" or a question arising
therefrom.
There is nothing on the file that purports to be
such an appeal or reference and there is therefore
nothing that, in terms, purports to be a decision on
such an appeal or reference. However, when the
documents on the file are read together, it would
appear that it may fairly be inferred
(a) that there was a decision by the Commission
under section 55 that benefit was not payable as
sought by the applicant's claim dated April 1,
1975,
(b) that the lawyers' letter of July 31, 1975 was
intended and accepted as an appeal from that
decision, and
(c) that the decision of the Board of Referees of
September 12, 1975, was, in effect, a dismissal of
that appeal.
The basis of the decision from which the appli
cant appealed to the Board was, as I understand it,
that her claim was for benefit for a period when
she was unable to work by reason of illness and, by
virtue of section 33(2) or 36(1), she was not
entitled to be paid benefit for that period because
it consisted of days in the "re-established" or
"extended" portion of an "initial benefit period".
It is common ground that the claim was in
respect of a period when the applicant was ill and
that the period had occurred in the "re-estab
lished" or "extended" portion of an initial benefit
period that had been established for her. The
contention on behalf of the applicant, as I under
stood counsel, is that the original initial benefit
period should have been considered as cancelled by
virtue of section 20(5) of the Act, which I repeat
for convenience:
(5) Where an initial benefit period is established for a
claimant but benefit is not payable or has not been paid in
respect of that benefit period, the initial benefit period may,
subject to prescribed conditions, be cancelled and regarded as
not having begun.
and Regulation 151, which reads:
151. An initial benefit period that was established in respect
of a claimant shall be cancelled and regarded as not having
begun
(a) where the period has terminated and no benefit was
payable or paid in respect of the period, and
(brwhere the period has not terminated, no benefit was
payable or paid in respect of the lapsed portion of the period,
and the claimant requests that it be so regarded.
If that contention is correct, then the argument
would be that the application of April 1, 1975,
read with section 19, would result in a new initial
benefit period and the illness claim would fall in
that period before it was re-established or extend
ed. The respondent's reply to this contention is
that section 20(5) was not and could not have been
brought into play because benefit was deemed to
have been paid in respect of the first period by
reason of section 40(1)(a), section 41(1) and sec
tion 43, which provisions are repeated for
convenience:
40. (1) A claimant is disqualified from receiving benefits
under this Part if without good cause
(a) he refuses or fails to apply for a situation in suitable
employment that is vacant, after becoming aware that such
situation is vacant or becoming vacant, or fails to accept such
a situation after it has been offered to him;
41. (1) A claimant is disqualified from receiving benefits
under this Part if he lost his employment by reason of his own
misconduct or if he voluntarily left his employment without just
cause.
43. (1) Where a claimant is disqualified under section 40 or
41 from receiving benefits, the disqualification shall be for such
weeks following his waiting period, not exceeding three, for
which benefit would otherwise be payable as are determined by
the Commission.
(2) For the purposes of this Part, a benefit shall be deemed
to be paid for any weeks of disqualification under subsection
(1).
The applicant's reply to this contention is, in
effect, as I understand it, that there can have been
no disqualification from receiving benefit under
sections 40 or 41 in this case because the applicant
was never qualified to receive benefit inasmuch as
it is clear on the evidence that she was never, from
September 1974 until November 1974, entitled to
be paid benefit because she did not, during that
period, fulfil the requirement of section 25(a) 7
that she be
capable of and available for work and unable to obtain suitable
employment ....
To test the validity of this contention, it is
necessary in my view to recapitulate, in outline,
No question arises in respect of that period under section
25(b).
the general scheme of this complicated statutory
arrangement, as I understand it. In the first place,
leaving aside special rules and exceptional cases
and procedural requirements, benefits prima facie
become payable where an insured person
(a) becomes "qualified to receive" unemployment
insurance benefits by having had 8 or more weeks
of insurable employment in his qualifying period
and having had an interruption of earnings (sec-
tion 17),
(b) makes a "claim" as a result of which an
"initial benefit period" is established for him (sec-
tion 19),
(c) has served his two week waiting period (sec-
tion 23), and
(d) has shown (section 25) in respect of a subse
quent day in the initial benefit period that he was
(i) capable of and available for work and unable
to obtain suitable employment on that day, or
(ii) incapable of work by reason of any pre
scribed illness, injury or quarantine on that day.
This potential right is subject to an overriding
exception in that a person to whom benefit may
become so payable may be "disqualified from
receiving benefits" under either section 40 or
section 41.
Furthermore, such a disqualification from
receiving benefits may arise by virtue of facts that
fall under section 40 or section 41 even though
they arise before the prima facie right to payment
of benefits arise. In other words a person may
become subject to disqualification under section 40
by virtue of a refusal of employment, or under
section 41 by virtue of a voluntary quitting of
employment, at a time when he has not yet satis
fied the requirement of section 25. The point is
that, once the disqualification arises, when the
prima facie right to benefit crystallizes, subse-
quently, the disqualification operates to prevent
payment. 8 That such is the effect of the Act is, in
my view, established by section 43, which says that
"the disqualification shall be for ... weeks follow
ing his waiting period ... for which benefit would
otherwise be payable...."
It follows, in my view, that a week of disqualifi
cation in respect of which section 43(2) deems
benefit to have been paid must be a week for
which benefit would otherwise be payable and
must, therefore, be a week in respect of which the
claimant has overcome the requirement of
section 25.
I now turn to the question whether the dismissal
of the applicant's appeal by the Board of Referees
resulted from an error of law because otherwise
there would appear to be no ground before us on
the basis of which this Court could interfere under
section 28 of the Federal Court Act.
In so far as appears from what is before us, the
only ground relied on before the Board was that
the applicant was not "available" for work during
the relevant period and, therefore, section 25 made
benefits not payable so that the disqualification
never came into operation. This question of availa
bility, however, was a question of fact and the
Board held that the applicant was "sur le marché
du travail"—on the labour market—which is, in
my view, another way of saying that she was
available for work. Within wide limits, the ques
tion of availability for work is, in my view, a
question of fact for decision on an appraisal of the
circumstances of the particular case; and no argu
ment has been put forward in this case that per
suades me that the conclusion reached by the
Board in this case was not a conclusion that could
be reached in the circumstances of this case. This
Court cannot, therefore, interfere with that con
clusion. It follows that section 43 (1) did operate to
e In other words the disqualification, while it might arise out
of facts that bring section 25 into operation to make benefit not
payable at the particular time, operates to make benefit not
payable at some subsequent time when section 25 would not so
operate. On the other hand, it is to be noted that a disqualifica
tion cannot be imposed under either section 40 or 41 except in
the case of a "claimant", who, by definition (section 2(1)(b)),
is an insured person "who applies for or is in receipt of benefit",
so that a person may, for example, quit his job for any reason
whatever without risking the section 41 penalty provided he
does not apply for benefit under the Act.
disqualify the applicant from receiving benefits
during a part of the relevant period, that benefit is
deemed to have been paid to her during the dis
qualification period by section 43(2) and that sec
tion 20(5) cannot, therefore, be invoked as sought
by the claimant. That being so, it is common
ground, as I understood counsel for the applicant,
that the application must be dismissed.
* * *
HYDE D.J.: I agree.
* * *
The following are the reasons for judgment
rendered in English by
LE DAIN J.: This is an application under section
28 of the Federal Court Act to review and set
aside the decision of a Board of Referees under the
Unemployment Insurance Act, 1971 in which the
Board dismissed an appeal from a decision of the
Unemployment Insurance Commission refusing
the applicant benefit during a period of unemploy
ment resulting from illness on the ground that such
unemployment fell within the re-established por
tion of an initial benefit period. The applicant had
requested the Commission to cancel the initial
benefit period, but it had refused, and the appeal
from that decision was dismissed by the Board.
The chairman refused leave to appeal to an
umpire.
The applicant left her employment as a waitress
in a restaurant in September 1974, because of a
change in her hours of work. She had been work
ing from four o'clock in the afternoon until mid
night. She could not accept the change in hours
because it would require her to use a taxi to travel
to work and would make it impossible for her to
look after her retarded child. She applied for
unemployment insurance benefit on September 9,
1974, and an initial period of benefit was estab
lished for her, effective September 15, 1974.
By notice dated September 25, 1974 the Com
mission imposed a disqualification of two weeks
upon her, pursuant to section 41(2) of the Act, for
having voluntarily left her employment without
just cause.
On September 19, 1974, the applicant refused
an offer of employment as a waitress in another
restaurant despite the fact that it was night work.
She stated that she refused this work for the same
reason that she had left her earlier employment:
the cost of transportation by taxi and the need to
look after her retarded child. The report of this
refusal of work made by Canada Manpower to the
Unemployment Insurance Commission contained
the following notations: "Difficile dans le choix de
ses heures de travail" and "Disponibilité
douteuse".
On October 8, 1974, the Commission advised
the applicant that as a result of refusing employ
ment without justification she would, in virtue of
section 40(1) of the Act, be disqualified from
receiving benefits for a period of three weeks. On
the same day, by another notice, it advised her
that as a result of her refusal of employment on
September 19, 1974, she had failed to prove that
she was available for work, as required by sections
25(a), 33(2) and 36(1) of the Act, and that she
would accordingly not be entitled to benefit from
October 13, 1974, so long as this situation
continued.
The applicant resumed work on November 18,
1974. By notice dated December 18, 1974, the
applicant was advised by the Commission that the
disentitlement imposed from October 13, 1974, in
virtue of sections 25(a), 33(2) and 36(1) of the
Act, for as long as the same situation continued,
had terminated on November 15, 1974.
The applicant made a claim for unemployment
insurance benefit in April 1975, following termina
tion of her employment on account of sickness. If
the applicant had been treated as falling within an
initial benefit period, she would have been entitled
to benefit by virtue of paragraph (b) of section 25
of the Act, which reads as follows:
25. A claimant is not entitled to be paid benefit for any
working day in an initial benefit period for which he fails to
prove that he was either
(a) capable of and available for work and unable to obtain
suitable employment on that day, or
(b) incapable of work by reason of prescribed illness, injury
or quarantine on that day.
Instead, the applicant's claim was treated by the
Commission as falling within the re-established
portion of her initial benefit period, and benefit
was refused on the ground that she was not capa
ble of and available for work as required by section
33(2) of the Act, which reads as follows:
33. (2) Notwithstanding paragraph (b) of section 25, a
claimant is not entitled to be paid benefit for any working day
in a week in the re-established portion of his initial benefit
period for which he fails to prove that he was capable of and
available for work and unable to obtain suitable employment.
The applicant requested the Commission to
cancel the initial benefit period pursuant to section
20(5) of the Act, which reads as follows:
20. (5) Where an initial benefit period is established for a
claimant but benefit is not payable or has not been paid in
respect of that benefit period, the initial benefit period may,
subject to prescribed conditions, be cancelled and regarded as
not having begun.
The Commission refused to cancel the initial
benefit period and, as requested by the applicant,
referred the matter for appeal to a Board of
Referees. The Board dismissed the appeal for the
following reasons:
[TRANSLATION] Referring to the record and to the statements
of the claimant and her counsel, the Board of Referees is
unanimous in ruling that the benefit period effective September
15, 1974 cannot be cancelled.
(A) The claimant was on the labour market at the time of her
initial claim, filed on September 9, 1974.
(B) Her restricted availability brought about the disqualifica
tions noted in the record.
(C) The Board of Referees is of the opinion that section 43(2)
applies, rather than section 20(5) and Regulation 151(b).
In effect, the Board appears to have held that at
the time the applicant made her claim for benefit
she was available for work and therefore entitled
to benefit, and that, while she was not paid benefit
as a result of disqualifications, she was deemed to
have been paid benefit during the periods of such
disqualification in virtue of section 43(2) of the
Act, which reads as follows:
43. (2) For the purposes of this Part, a benefit shall be
deemed to be paid for any weeks of disqualification under
subsection (1).
As I understand the contention of the applicant,
it is that sections 40(1), 41(2) and 43(2) respect
ing disqualification had no application to her case
and ought not to have been applied because on the
record before the Commission the only possible
characterization of her status from the outset of
the initial benefit period was that she was not
available for work within the meaning of section
25 and that accordingly she was not entitled to be
paid benefit throughout the initial benefit period.
As such she was not a person for whom the law
could contemplate disentitlement by operation of
disqualification. The applicant contends that in
failing to reach this conclusion the Board of
Referees erred in law.
I agree with the Chief Justice's analysis of the
relationship of disqualification by virtue of sections
40 and 41 and disentitlement for failure to meet
the conditions of section 25. It seems to be clear,
particularly in view of the terms of section 43(1),
but also in view of the general economy of the Act,
that disqualification is something that is to operate
separately from and in addition to disentitlement
by virtue of section 25. If the facts of a particular
case support disentitlement under section 25 then
it is the duty of the Commission to apply that basis
for denying a claim, and to apply any disqualifica
tion to which the facts give rise to a period for
which benefit would otherwise be payable.
On this view of the matter I also agree with the
Chief Justice that in the circumstances of this case
the question of whether the applicant was not
available for work throughout the initial benefit
period is essentially one of fact, and since it cannot
be said that on the record that was before it the
Board made an erroneous finding of fact of the
kind described in section 28(1)(c) of the Federal
Court Act, this Court is without power to inter
fere. For these reasons I agree that the section 28
application should be dismissed.
* * *
The following are the reasons for judgment
rendered in English by
HYDE D.J.: This is a section 28 application to
set aside a "decision" of the Board of Referees set
up under the Unemployment Insurance Act, 1971.
I have had the advantage of reading the very
complete reasons given by the Chief Justice. I do
not propose to repeat all the statutory citations
which he gives and, although I am in complete
agreement with him, I have for my own under
standing of this somewhat complex matter set out
my own reasons in reaching my conclusion that
this application should be dismissed.
Applicant filed an initial claim for benefit on
September 9, 1974 (a Monday) in respect of an
interruption of earnings on September 5, 1974.
Being a person qualified 9 under section 17 to
receive benefits under the Act an "initial benefit
period" was thereby established pursuant to sec
tion 19, starting from Sunday, September 8, 1974
(see section 20).
From that date ran the "two week waiting peri
od" provided by section 23, i.e., September 8 to
September 22, during which she was not entitled
to be paid any benefit.
On September 25, 1974, by an "Avis d'Exclu-
sion", she was advised by the Commission that
pursuant to section 41(1) (and section 43) she
would be disqualified from receiving benefits for a
period of two weeks (plus the two week waiting
period) because she had voluntarily left her
employment "sans justification".
It should be noted here that section 43(2) pro
vides that "a benefit shall be deemed to be paid for
any weeks of disqualification under subsection
(1)" of section 43.
On September 19, 1974, the applicant was
offered employment by the Canada Manpower
Centre at another restaurant (Miss Dany) which
she refused for reasons set out in her letter dated
October 17, 1975, namely, the difficulty she was
encountering in finding day care for her hand
icapped child.
The Commission, by another "Avis d'Exclu-
sion", dated October 8, 1974, advised her that
under section 40(1) her refusal would increase her
disqualification to three weeks (the maximum pro
vided for in section 43(1)). This meant that her
9 I that she had had more than eight weeks of insurable
employment in her qualifying period.
benefits could not commence until October 13,
1974.
On October 8, 1974, however, she received
another notice (entitled "Avis de Refus") advising
that because of the reasons given for refusing the
Miss Dany job offer she had not proven that she
was "disponible pour travailler" as required by
sections 25(a), 33(2) and 36(1), and as a conse
quence she was excluded from benefits from Octo-
ber 13, 1974 as long as the same situation
persisted.
On November 28, 1974 the applicant wrote to
the Commission advising that she had begun work
again on November 18 and renewed her request
for benefits.
On December 18, 1974, the Commission advised
her that in view of this further information the
limitation as to further benefits was terminated as
of November 15, 1974 (apparently this date was
fixed as it was a Friday and she had recommenced
work on Monday the 18th).
She worked at her new job with "Little Princess
Childrens" from November 18, 1974 to March 10,
1975 when she was obliged to give it up because of
illness. She then filed a claim for benefit on April
1, 1975, stating that she was incapable of working
by reason of illness which, presumably, she
thought would qualify her under section 25(b).
However, on April 28, 1975, the Commission
sent her an "Avis de Refus" stating that by reason
of section 33(2) she was not entitled to benefits
from March 31, 1975 in that she was not capable
of and available for work from the date of her
April 1st claim. 1 0
Following the letter from applicant's solicitor of
July 31, 1975 in which the cancellation of the
applicant's initial benefit period was sought under
section 20(5), because no benefit had been
10 Presumably the Commission considered that at this date
she was in the re-established portion of her initial benefit period
which does not contain the exception of section 25(b) which
entitles a person to claim for benefits during an initial benefit
period when incapacity for work is due to illness, injury or
quarantine.
received by her in respect thereof, the Commis
sion, complying with the request that if the sub
mission was rejected the letter be considered as an
appeal to the Board of Referees, referred the
matter to the Board of Referees.
On September 12, 1975 the Board of Referees
held a hearing at which the applicant was present
with her solicitor. The question which it posed for
its consideration was whether the applicant's ini
tial benefit period could be cancelled in the
circumstances.
The Board, at the conclusion of the hearing, was
unanimous that the applicant's initial benefit
period which commenced September 15, 1974,"
could not be cancelled, because
[TRANSLATION] (A) The claimant was on the labour market
at the time of her initial claim, filed on September 9, 1974.
(B) Her restricted availability brought about the disqualifica
tions noted in the record.
(C) The Board of Referees is of the opinion that section 43(2)
applies, rather than section 20(5) and Regulation 151(b). 12
It is against this decision that the application
under section 28 of the Federal Court Act is made.
I see no error in law in this decision. The flaw in
applicant's argument is found in the requirement
of section 20(5), reading:
(5) Where an initial benefit period is established for a
claimant but benefit is not payable or has not been paid in
respect of that benefit period, the initial benefit period may,
subject to prescribed conditions, be cancelled and regarded as
not having begun.
whose conditions she could not meet having regard
to section 43, reading:
43. (1) Where a claimant is disqualified under section 40 or
41 from receiving benefits, the disqualification shall be for such
weeks following his waiting period, not exceeding three, for
which benefit would otherwise be payable as are determined by
the Commission.
(2) For the purposes of this Part, a benefit shall be deemed
to be paid for any weeks of disqualification under subsection
(1).
As benefits were deemed to have been paid to
the applicant during the three weeks of disqualifi-
11 Although this is not material to the present dispute, it
would appear to me that this date should be September 8, 1974,
as I stated at the outset basing myself on section 20 and section
2 ( 1 )(y)•
12 Board of Referees' decision dated September 12, 1975.
cation under section 41(1) and section 42, she
cannot contend that no benefit had been paid in
respect of her initial benefit period.
For these reasons and those more fully set out
by the Chief Justice, with which I am in full
agreement, I would dismiss this 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.