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A-563-76
Attorney General of Canada (Applicant) v.
The Umpire Constituted under section 92 of the Unemployment Insurance Act, 1971, S.C. 1970- 71-72, c. 48 (Respondent)
Court of Appeal, Pratte, Urie and Ryan JJ.— Halifax, April 27, 1977.
Judicial review — Unemployment insurance — Claim for insurance because of lack of work due to labour dispute — Interpretation of s. 44(1),(2) of Unemployment Insurance Act, 1971 — Conditions of s. 44(2) must be met — Decision of Umpire overturned — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28 — Unemployment Insurance Act, 1971, S.C. 1970-71-72, c. 48, s. 44(1),(2).
APPLICATION for judicial review. COUNSEL:
M. G. Tompkins for applicant. David R. Hubley for respondent.
SOLICITORS:
Deputy Attorney General of Canada for applicant.
Patterson, Smith, Matthews & Grant, Truro, N.S., for respondent.
The following are the reasons for judgment of the Court delivered orally in English by
PRATTE J.: This is an application under section 28 of the Federal Court Act to review and set aside a decision of an Umpire under Part V of the Unemployment Insurance Act, 1971'. By that decision the Umpire allowed an appeal from a decision made by the Board of Referees that Mr. John G. MacWha had, within the meaning of section 44(1) of the Act, 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" and was not entitled to receive the benefits he had claimed since he had not proved the facts described in section 44(2).
' S.C. 1970-71-72, c. 48.
As we read his decision, the Umpire found that Mr. MacWha had not participated in the labour dispute that caused the stoppage of work and, from that finding alone, he inferred that Mr. MacWha was entitled to receive the benefits. That decision, in our view, is wrong. In order to be entitled to receive the benefits, it was necessary for the claimant to prove not only that he had not participated in the labour dispute that had caused the stoppage of work, but also that he met the other conditions enumerated in section 44(2).
For those reasons, the section 28 application will be allowed, the decision of the Umpire will be set aside and the matter will be referred back for decision on the basis that an applicant who falls within section 44(1) of the Unemployment Insur ance Act, 1971 must, in order to be entitled to receive benefits, prove that he meets all the condi tions enumerated in section 44(2).
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