A-242-75
Minister of National Revenue (Applicant)
v.
J. Blackburn (Respondent)
Court of Appeal, Jackett C.J., Heald J. and
MacKay D.J.—Toronto, January 8, 1976.
Judicial review—Decision by Unemployment Insurance
Umpire—Whether employees taken over by new corporation
remained "employed by the same employer"—Unemployment
Insurance Act, 1971, S.C. 1970-71-72, c. 48, s. 149(2).
An Umpire under the Unemployment Insurance Act, 1971
decided that certain employees who were, until March 1, 1973
employed by one corporation, and by another corporation
thereafter, remained "employed by the same employer" within
the meaning of section 149(2) of the Unemployment Insurance
Act, 1971.
Held, the decision is set aside. While generally, the
employees were doing the same things in the same business,
their employer was, after March 1, the new corporation. They
were not "employed by the same employer"; there is nothing in
the context to justify giving the words any other than their
ordinary meaning.
JUDICIAL review.
COUNSEL:
M. Bonner for applicant.
Respondent for herself.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
The following are the reasons for judgment of
the Court delivered orally in English by
JACKETT C.J.: This is a section 28 application to
set aside a decision rendered by Collier J. as an
Umpire under the Unemployment Insurance Act,
1971.
Collier J. has explained the question that has to
be decided in a way that cannot be improved upon
and we propose to refer only to the barebones of
the facts and law necessary to decide that ques
tion. We can only add that we adopt everything
said by Collier J. in support of his conclusion and
only regret that we cannot adopt the conclusion
itself.
Briefly, certain employees were, prior to March
1, 1973, employed by one corporation, which will
be referred to as the "old corporation" and, from
that time on they were employed by a second
corporation, which will be referred to as the "new
corporation"; and the question is whether such
employees, after that time, remained "employed
by the same employer" within the meaning of
those words in section 149(2) of the Unemploy
ment Insurance Act, 1971, which reads as follows:
149. (2) Notwithstanding Part III, where a person is after
the commencement of Part III employed in insurable employ
ment that was immediately before the commencement of Part
III excepted employment under the former Act by reason of
paragraph (q) of section 27 of that Act or section 70, 75 or 76
of the regulations made under that Act, the employee's premi
um and employer's premium payable in respect of that person
while he remains employed by the same employer shall, in
respect of each of the years 1972, 1973 and 1974, be that
reduced premium specified in paragraphs (a) to (c) of subsec
tion (1) in respect of those years.
While, from many points of view, as far as the
employees were concerned, there was no change in
their position after the corporate reorganization—
they were still employed doing the same things in
the same business, which had been purchased from
the old corporation by the new corporation—
nevertheless, their employer after the time in ques
tion, was the new corporation and not the old
corporation. In such circumstances, we are forced
to the conclusion that they were not "employed by
the same employer" within the ordinary meaning
of those words and we have not been able to find
anything in the context to justify giving those
words any meaning other than the ordinary mean
ing. The result seems hard in the circumstances of
this case but the condition imposed by Parliament
cannot, for that reason, be ignored in some cases
and applied only in cases where it is more obvious
why Parliament would have imposed it.
For these reasons, we are constrained to con
clude that the Umpire's decision must be set aside
and the appeal to the Umpire referred back with a
direction that it be dismissed.
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.