A-869-81
Attorney General of Canada (Applicant)
v.
Allan Tanner (Respondent)
Court of Appeal, Thurlow C.J., Cowan and
Lalande D.JJ.—Toronto, September 20, 1982.
Judicial review — Applications to review — Unemployment
insurance — Application to set aside decision of Umpire
dismissing applicant's appeal from decision of Board of
Referees and holding respondent entitled to unemployment
insurance benefits for period during which he was in prison —
S. 45 of Act stipulates that prison inmate not entitled to
benefits except as provided by regulation — S. 55 of Regula
tions provides that inmate granted parole, partial parole or
temporary absence, or certificate of availability for purpose of
seeking and accepting employment not disentitled to benefits
by reason only of s. 45 of Act — Decision of Board allowing
inmate's claim to benefits based on letter from Superintendent
of correctional institution indicating applicant had previously
been released to accept employment and, while he had been
laid off and therefore returned to custody, he would be
released again for same purpose — Application allowed —
Availability of temporary absence permit to work not equiva
lent to "temporary absence" within meaning of s. 55 of Regu
lations — S. 55 is directed toward inmates who have been
granted parole or temporary absence and are not disabled by
incarceration from looking for work, and those inmates who
are in custody but have been granted certificate of availability
for purpose of seeking and accepting employment in commu
nity — Unemployment Insurance Act, 1971, S.C. 1970-71-72,
c. 48, ss. 25 (as am. by S.C. 1974-75-76, c. 80, s. 7; 1976-77,
c. 54, s. 36), 45 (as am. by S.C. 1974-75-76, c. 80, s. 17) —
Unemployment Insurance Regulations, C.R.C., c. 1576, s. 55.
COUNSEL:
Roslyn J. Levine for applicant.
APPEARANCE:
Allan Tanner on his own behalf.
SOLICITOR:
Deputy Attorney General of Canada for
applicant.
RESPONDENT ON HIS OWN BEHALF:
Allan Tanner, Brantford.
The following are the reasons for judgment of
the Court delivered orally in English by
THURLOW C.J.: This is an application to review
and set aside a decision of an Umpire under the
Unemployment Insurance Act, 1971, S.C. 1970-
71-72, c. 48 which, on a review under section 102
of the Act, dismissed the applicant's appeal from
the decision of a Board of Referees and held the
respondent entitled to unemployment insurance
benefits for a period during which he was an
inmate of a prison.
Under section 25 [as am. by S.C. 1974-75-76, c.
80, s. 7; 1976-77, c. 54, s. 36]' of the Act, entitle
ment to benefits in a case such as this is condition
al on the claimant showing he was capable of and
available for work and unable to obtain suitable
employment.
Further, under section 45 [as am. by S.C. 1974-
75-76, c. 80, s. 17] 2 an inmate of a prison or
similar institution is not entitled to benefits except
as provided by regulation. At the material time
Regulation 55 [C.R.C., c. 1576] provided:
55. A claimant who is an inmate of a prison or similar
institution and has been granted parole, partial parole or
temporary absence, or a certificate of availability for the
purpose of seeking and accepting employment in the commu
nity, is not disentitled from receiving benefit by reason only of
section 45 of the Act.
' 25. A claimant is not entitled to be paid initial benefit for
any working day in a 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, and that he would be otherwise
available for work.
2 45. Except under section 31, a claimant is not entitled to
receive benefit for any period during which
(a) he is an inmate of any prison or similar institution; or
(b) he is not in Canada,
except as may otherwise be prescribed.
The decision of the Board of Referees was
expressed as follows:
The Board reviewed the evidence available and unanimously
agree that the claimant is entitled to receive benefit during the
period 26 November, 1980 to 12 December, 1980.
Since the claimant was involved in a mass lay-off situation and
was, therefore, not required to conduct job research activities
during the period in question and evidence was available from
the correctional institution that the claimant would be released
to accept employment, the Board could find no justification for
considering the claimant unavailable for work under the Act.
The evidence referred to by the Board is not in
the record before the Court but it seems clear that
the question which the Board addressed was that
of whether the respondent was available for work
and that the Board found that he was available.
The Board does not appear to have addressed or
answered the question posed by Regulation 55;
that is to say, whether the respondent had been
granted temporary absence from prison within the
meaning of the Regulation. If they did, it seems
that they treated the availability of a temporary
absence permit to work as equivalent to a
"temporary absence" within the meaning of the
Regulation.
In so doing, we think the Board erred in law. In
our view, what Regulation 55 contemplates is that
the inmate has been granted parole or temporary
absence and is not disabled by his incarceration
from looking for work. The Regulation also pro
vides that an inmate who may still be in custody
but who has been granted a certificate of availabil
ity for the purpose of seeking and accepting
employment in the community will not be disenti-
tled by section 45 of the Act from receiving ben
efits. The Board did not find either that the
respondent had been granted a temporary absence
permit or a certificate and it is common ground
that he remained in prison.
When the matter came before the Umpire, the
appeal was allowed on the ground that there was
no evidence that a temporary absence had been
granted. In our view, that decision was correct.
However, the learned Umpire, on an application
for review, held that the condition of the Regula
tion had been fulfilled because, as indicated in his
decision, there was a letter from the Superintend
ent of the Brantford jail in the following terms:
The above was admitted to this Institution on 25 November,
1980, and transferred to Burtch Correctional Centre on
28.11.80.
The above mentioned was granted a Temporary Absence to go
to work at Massey-Ferguson Industries Ltd., but when the
company was contacted there was no work available due to the
layoff, so he was transferred to Burtch C.C. to alleviate the
crowding at this institution.
We do not think this letter is capable of being
regarded as evidence of a temporary absence
within the meaning of Regulation 55. It is not
evidence of an absence in fact, and it is not in
dispute that the respondent remained in custody
throughout the material period. The Umpire's
decision is, accordingly, not sustainable.
The decision of the Umpire is set aside and the
matter is referred back to the Umpire to be dealt
with on the basis that the respondent was not
excepted by Regulation 55 from the application of
section 45 of the Act.
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.