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A-690-75
Attorney General of Canada (Applicant) and
In re the Unemployment Insurance Act and in re application for benefits by Elcey Mercier, Gisèle Lavoie, Irène Emond, Denyse Roberge, Francine Girard, Huguette Girard, Cécile Gauvin and Paquerette Morin (Respondents)
Court of Appeal, Pratte and Le Dain JJ. and Hyde D.J.—Quebec, February 8 and 9, 1977.
Judicial review — Applicant seeks to reverse decision of Umpire granting benefits to respondents — Umpire deciding respondents available for work within meaning of s. 25 of the Act — Whether duty of Manpower Centre employees to inform respondents as to provisions of Act — Unemployment Insur ance Act, 1971, S.C. 1970-71-72, c. 48, ss. 25 and 39(1) — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
Applicant claims that respondents were not "available" for work within the meaning of section 25 of the Act so as to entitle them to receive unemployment insurance benefits. Respondents allege that they were "available" by virtue of section 39 (1) of the Act.
Held, the application is allowed and the case is referred back to the Umpire to reach a decision based on the assumption that the respondents were not "available" within the meaning of section 25. The respondents could not have been available for work while pursuing a course of studies unless there were special circumstances of which no evidence was adduced. Employees of the Manpower Centre where they made inquiries as to their position were under no obligation to inform them of the provisions of the Act and therefore did not have to tell them what authorities were designated for the purposes of section 39(1). In any event, the respondents did not decide to take courses at the urging of the Manpower Centre, but of their own accord.
JUDICIAL review. COUNSEL:
Yvon Brisson for applicant. Denis Gagnon for respondents.
SOLICITORS:
Deputy Attorney General of Canada for applicant.
Fédération des Affaires sociales, Montreal, for respondents.
The following is the English version of the reasons for judgment delivered orally by
PRATTE J.: This section 28 application is direct ed against a decision of an Umpire acting under Part V of the Unemployment Insurance Act, 1971'. In allowing respondents' appeals, the Umpire held that they were entitled to benefits which they had been denied because it was decided that they were not "available" within the meaning of section 25 of the Unemployment Insurance Act, 1971.
Respondents were employed in the Chicoutimi hospital as babysitters and child-care workers. Since these professions seemed doomed to disap pear, the Department of Education of the Province of Quebec with, it seems, the support of the federal Department of Manpower and Immigration, organized courses for the babysitters and child care workers who wished to become nursing aides. At the request of their professional association, which wished to avoid a situation where its mem bers would sooner or later be forced into unem ployment, respondents registered for these courses after obtaining unpaid leave from their employer, and also after inquiring at a manpower centre whether they could claim allowances under the Adult Occupational Training Act (R.S.C. 1970, c. A-2, as amended by R.S.C. 1970, (2nd Supp.), c. 33). Were respondents available within the mean ing of section 25 of the Act while they were attending these courses, which were given from 1 p.m. to 6 p.m., Monday to Friday, from January 6 to May 30, 1975? That is the only question raised by this appeal. The Umpire answered in the affir mative. I believe he was in error.
According to section 25, respondents were en titled to the benefits they claimed only if they proved that they were capable of and available for work during the period of their studies. It seems clear to me that a person who, like respondents, is taking five hours of courses a day, five days a week, is not available within the meaning of sec tion 25 (apart from exceptional circumstances, of which there is no evidence here). This is the case unless he can take advantage of the benefit grant ed by section 39(1), which lays down that:
S.C. 1970-71-72, c. 48.
39. (1) For the purposes of this Part, a claimant is unem ployed, capable of, and available for work during any period he is attending a course of instruction or training to which he has been referred by such authority as the Commission may designate.
In the case at bar there is no doubt that it was not at the request of an authority designated by the Commission that respondents took courses to become nursing aides. It follows that, contrary to what was held by the Umpire, they were not capable of and available for work during the period of their studies.
In reaching a different decision, the Umpire, as I understand his decision, relied on the following arguments.
(a) Before beginning their studies, respondents inquired at a manpower centre about the living allowance they would be paid during their stud ies. The officers at the centre omitted to bring section 39(1) to the attention of respondents, who consequently did not think of asking the Commission to indicate which authority it had designated for the purposes of section 39(1).
(b) The Unemployment Insurance Commission, which was aware of respondents' situation, should itself have brought section 39(1) to their attention and also have indicated which author ity had been designated for the purposes of section 39(1).
(c) Until recently manpower centres were authorities designated by the Commission for the purposes of section 39(1). The resolution which withdrew from them the power to order a claimant to take courses has not been published and is consequently not sustainable against respondents.
In my opinion none of these arguments justifies the Umpire's conclusion. Contrary to what he assumed, the employees of the manpower centre did not in the circumstances disclosed by the record have a duty to inform respondents of the provisions of the Unemployment Insurance Act, 1971. In the circumstances, the Commission did not have a duty either of indicating to respondents the authorities which it had designated for the purposes of section 39(1). Finally, even if it is assumed that the employees of the manpower cen tres had retained the power to order a claimant to
take courses for the purposes of section 39(1), this would not help respondents since there are no grounds for the claim that they registered for the course they took at the request of a manpower officer.
For these reasons I would set aside the Umpire's decision and would return the case to him so that he may decide it, this time on the basis that respondents were not available within the meaning of section 25.
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LE DAIN J. concurred.
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HYDE D.J. concurred.
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