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.
* * *
LE DAIN J. concurred.
* * *
HYDE D.J. concurred.
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.