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A-298-74
Louise Ricard (Appellant) v.
Unemployment Insurance Commission (Respond- ent)
and
Attorney General of Canada (Mis -en-cause)
Court of Appeal, Pratte, Hyde and St-Germain JJ.—Quebec City, September 25, 1975.
Judicial review—Unemployment insurance—Applicant's benefits cut off—Board of referees and umpire rejecting appeal—Meaning of Regulation 145(9)—Whether s. 145(9) null, void and ultra vires under s. 58(j)—Unemployment In surance Act, S.C. 1970-71-72, c. 48, ss. 25,58(j) and Regula tions, s. 145(9)—Federal Court Act, s. 28.
A Board of referees and an umpire both dismissed appli cant's appeal on the discontinuance of her unemployment insur ance benefits. The umpire's decision was based on section 145(9) of the Regulations; applicant claims that the section is invalid and ultra vires the Commission under section 58(j) of the Act. The applicant applied for judicial review.
Held, the application is dismissed. The Commission does not have the power under section 58(j) to enact a regulation subordinating proof of fulfilment of conditions specified by the Act to proof of a fact with no logical relationship to the fulfilment of these conditions. Rather, section 58(j) grants the Commission power to adopt a regulation subordinating proof of the fulfilment of the legal condition to proof of a fact which is so interconnected with fulfilment of these conditions that it is impossible to conceive of the legal conditions being fulfilled without the existence of the fact required by the regulation. Regulation 145(9) is this sort of proof. According to section 25 a claimant who is capable of working is entitled to benefit, not because he is available for work, and unable to find it, but because he can prove his availability, and inability to obtain employment. It is impossible for a claimant to satisfy this condition if he cannot prove he has made reasonable efforts to find work.
JUDICIAL review. COUNSEL:
J. Ricard for applicant.
Y. Brisson for respondent.
SOLICITORS:
J. Ricard, Matane, for applicant.
Attorney General of Canada for respondent.
The following is the English version of the reasons for judgment of the Court delivered orally by
PRATTE J.: Applicant (who is erroneously referred to as an appellant in the case title) was unemployed and benefited from the provisions of the Unemployment Insurance Act for several weeks; the Commission then decided, at the end of March 1974, that as of March 24 she had ceased to be entitled to benefit as specified by the Act. First, applicant unsuccessfully appealed this deci sion to a board of referees. She then appealed the board's decision to an umpire, who dismissed her appeal. It is this decision of the umpire which applicant is now contesting under section 28 of the Federal Court Act.
According to section 25 of the Unemployment Insurance Act:
25. A claimant is not entitled to be paid benefit for any working day in an initial 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
The umpire based his decision on the fact that applicant had not proven that she had made reasonable efforts to find employment; from this he concluded, in accordance with section 149(9) of the Unemployment Insurance Regulations, that applicant had not established satisfactory evidence according to the terms specified in section 25(a) of the Act. Section 145(9) of the Regulations read as follows at the time:
145. (9) For the purposes of paragraph 25(a) of the Act, a claimant fails to prove that he is available for work and unable to obtain suitable employment on each working day in a period if he fails to prove that during that period he made reasonable and customary efforts to obtain employment.'
Counsel for the applicant claims that Regula tion 145(9) is invalid. He states that it is a regula tion that the Commission did not have the power to enact.
The words "il a fait, de façon habituelle, des démarches raisonnables" are an awkward translation of "he made reason able and customary efforts".
The only legislative provision on which the Commission's authority to adopt this regulation could rest is contained in section 58(j) of the Act:
58. The Commission may, with the approval of the Governor in Council, make regulations
(j) respecting the proof of fulfilment of the conditions ... from receiving or continuing to receive benefit ....
Counsel for the applicant claims that Regula tion 145(9) is not a regulation "respecting the proof of fulfilment of the conditions ... from receiving or continuing to receive benefit", but rather a regulation which is, under the conditions specified by the Act (that is, availability for work and inability to obtain employment) coupled with another (that is, making reasonable efforts to obtain employment). He therefore concludes that it is a regulation ultra vires, and one on which the umpire should not have based his decision.
In essence, Regulation 145(9) provides that in order to prove the existence of certain facts, a claimant must prove the existence of another fact. Clearly, such a provision concerns the facts to be proven and not only the method of proving them. However, it does not necessarily follow that in adopting this regulation, the Commission has exceeded the power granted to it by section 58(j) to establish rules of evidence. Legal rules related to presumptions, to take only one example, are rules of evidence even though they apply to both the object of the evidence and the way in which it is established.
In our opinion, the Commission does not have the power under section 58(j) to enact a regulation subordinating proof of fulfilment of the conditions specified by the Act to proof of a fact with no logical relationship to the fulfilment of these con ditions. Such a regulation would add a condition to those specified by the Act. Rather, section 58(j) in our opinion grants the Commission power to adopt a regulation subordinating proof of the fulfilment of the legal conditions to proof of a fact which is so interconnected with fulfilment of these conditions that it is impossible to conceive of the legal condi tions being fulfilled without the existence of the fact required by the regulation. The Court consid ers that Regulation 145(9) is this sort of proof.
According to section 25, a claimant who is capable of working is entitled to benefit, not because he is available for work and unable to obtain employment, but rather because he can prove his availability and his inability to obtain employment. The Court does not think it is possi ble for a claimant to satisfy this condition if he cannot prove he has made reasonable efforts in the circumstances to find employment.
For these reasons, we are of the opinion that the Commission, in adopting Regulation 145(9), did not exceed the powers it is granted by section 58(j).
Counsel for the applicant also claimed that the umpire's decision was contradictory and dis criminatory. As we indicated at the hearing, these two arguments appear to be totally unfounded. It must be remembered that the point at issue con cerns an application under section 28 and not an appeal where the Court may review the findings of the trial judge.
For these reasons the application will be dismissed.
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