A-21-77
Joan McKinnon and Canadian Food and Allied
Workers, Local P-766 (Applicants)
v.
The Honourable Mr. Justice Jean Dubé
(Respondent)
and
The Unemployment Insurance Commission and
The Queen (Mis -en-cause)
Court of Appeal, Pratte and Le Dain JJ. and Hyde
D.J.—Montreal, May 3 and 5, 1977.
Judicial review — All company employees represented by
same union — Portion of union dues to strike fund — Differ
ent bargaining units among employees — Strike by another
bargaining unit — Applicant lost job — Whether the applicant
had financed the strike — Whether applicant entitled to
unemployment insurance Unemployment Insurance Act,
S.C. 1970-71-72, c. 48, s. 44 Federal Court Act, s. 28.
Mrs. McKinnon was employed by a company whose
employees, although represented by the same labour union,
were divided into several bargaining units. As a union member,
she paid union dues which in part were directed to a strike
fund, according to the union's constitution. Mrs. McKinnon lost
her job because of a strike by employees belonging to a
different bargaining unit, albeit the same union. During this
strike, the union paid the strikers from the strike fund. Mrs.
McKinnon applied for unemployment insurance benefits; an
Umpire ruled that she was ineligible because she had not
proved that she had not financed the dispute.
Held, the application for review is dismissed. It is a question
of fact whether there is sufficient connection between the
contribution made by an individual and the labour dispute
being financed by the contributions. A person who is financing
an activity is a person who is defraying its cost, and it does not
matter whether the funds necessary for this purpose have been
disbursed before the activity took place or while it is taking
place. A person who pays union dues participates voluntarily
even if the obligation to pay the dues is imposed as a condition
of employment, since legally the employee is always free to
leave his job if the conditions of employment do not suit him.
APPLICATION for judicial review.
COUNSEL:
Paul Lesage for applicants.
Jean-Marc Aubry for respondent and
mis -en-cause.
SOLICITORS:
Trudel, Nadeau, Létourneau, Lesage &
Cleary, Montreal, for applicants.
Deputy Attorney General of Canada for
respondent and mis -en-cause.
The following is the English version of the
reasons for judgment of the Court delivered orally
by
PRATTE J.: Applicants are asking the Court to
set aside, under section 28 of the Federal Court
Act, a decision rendered by an Umpire acting
under Part V of the Unemployment Insurance Act,
1971. In this decision the Umpire held that appli
cant Joan McKinnon was not entitled to the unem
ployment insurance benefits which an officer of
the Commission and, after him, a board of
referees, had refused to allow her.
Mrs. McKinnon was employed by a company
where the employees, although represented by the
same labour union, were divided into several bar
gaining units. She belonged to the union and, like
all members, paid union dues part of which were
used, as provided by the union's constitution, for a
strike fund. In May 1975 Mrs. McKinnon lost her
job as the result of a strike by employees of the
same company who belonged to another bargain
ing unit but were represented by the same union.
During the strike this union paid the strikers
money from its strike fund, which had been set up
using dues paid by all members of the union.
Section 44 of the Unemployment Insurance Act,
1971 reads as follows:
44. (1) A claimant who has lost his employment by reason
of a stoppage of work attributable to a labour dispute at the
factory, workshop or other premises at which he was employed
is not entitled to receive benefit until
(a) the termination of the stoppage of work,
(b) he becomes bona fide employed elsewhere in the occupa
tion that he usually follows, or
(c) he has become regularly engaged in some other
occupation,
whichever event first occurs.
(2) Subsection (I) 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.
It is clear that in order to be entitled to the
benefits claimed, Mrs. McKinnon had to fulfil the
conditions set out in section 44(2). It is also clear
that Mrs. McKinnon did not participate in the
labour dispute that caused the stoppage of work
and was not directly interested in it, so that the
only issue remaining is whether the Umpire was
correct in deciding that she had not proved that
she had not financed the dispute. The Umpire
made this decision because, in accordance with
long established authority, he considered that Mrs.
McKinnon was financing the strike because the
strike was being financed in part by the dues she
had paid to her union before the strike.
Counsel for the applicants first maintained that
Mrs. McKinnon had not financed the strike
because she had not paid any dues during the
strike. He pointed out that the verb "finance" is
used in the present tense in section 44(2), leading
him to say that a person is financing a dispute
within the meaning of this provision only if he is
giving the strikers financial help during the strike.
This argument seems to us to be without founda
tion. A person who is financing an activity is a
person who is defraying its cost, and it does not
matter whether the funds necessary for this pur
pose have been disbursed before the activity took
place or while it is taking place; in either case it
will be said, while the activity is taking place, that
it is financed by the person who has made it
possible.
Counsel for the applicants also maintained that
a person could not be considered to be financing a
labour dispute if he had not voluntarily procured
financial assistance for one of the parties to the
dispute. This condition has not been met in this
case, he said. According to him, when Mrs.
McKinnon paid her dues to the union, it was in
consideration of services that the union could even-
tually render to her and not in order to contribute
to the strike fund, which was to benefit the mem
bers of other bargaining units. This argument
must also be rejected. A person who pays union
dues that are to be used for a strike fund may do
so for selfish reasons, but this does not mean he is
participating any less voluntarily in the setting up
of the fund. Moreover, such participation must be
considered voluntary even if the obligation to pay
the dues is imposed as a condition of employment,
since legally the employee is always free to leave
his job if the conditions of employment do not suit
him.
Finally, counsel for the applicants pointed to the
absurd consequences that would result from the
Umpire's decision. If the fact that a person has
contributed in the past to a union's strike fund is
sufficient for that person to be considered to be
financing a strike called by that union, the same
would apply even if the contribution to the strike
fund was made several years before the work
stoppage. In our opinion this objection does not
stand scrutiny. In each case it must be determined
whether there is a sufficient connection between
the financial contribution made by an individual
and the labour dispute this contribution may have
financed. This is a question of fact that must be
resolved in light of the circumstances of each case.
For these reasons the application under section
28 is dismissed.
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.