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T-371-79
Dame Madeleine Bernier (Applicant) v.
Canada Employment and Immigration Commis sion (Respondent)
and
Deputy Attorney General of Canada (Mis -en- cause)
Trial Division, Walsh J.—Montreal, February 5; Ottawa, February 8, 1979.
Prerogative writs — Mandamus — Unemployment insur ance — Board of Referees allowed applicant's appeal from Commission's decision concerning applicant's insurable weeks of employment — Commission's appeal launched after 21 day period lapsed — Appeal not yet heard — Benefits not being paid following Board's decision — Commission contending s. 103 inapplicable because Board's ruling on insurability of applicant's employment outside Board's jurisdiction, and hence not a decision — Whether or not mandamus should issue directing the payment of benefits — Unemployment Insurance Act, 1971, S.C. 1970-71-72, c. 48, ss. 75, 103 — Unemployment Insurance Regulations, SOR/76-706, s. 167.
APPLICATION. COUNSEL:
J. P. Villaggi for applicant.
G. LeBlanc for respondent and mis -en-cause.
SOLICITORS:
Brodeur, Labrie & Sénécal, St. Hyacinthe, for applicant.
Deputy Attorney General of Canada for respondent and mis -en-cause.
The following is the English version of the reasons for judgment rendered by
WALSH J.: Applicant is asking that a writ of mandamus be issued against respondent, requiring it to pay applicant the unemployment insurance benefits she is entitled to receive pursuant to a decision of the Board of Referees.
The evidence is that on September 26, 1978 respondent rendered a decision finding applicant ineligible for the benefits because she did not have enough insurable weeks to her credit during her qualifying period. Applicant appealed from this decision, and on October 25, 1978 the Board of Referees unanimously allowed the appeal, holding
that the claimant had accumulated ten weeks of insurable employment. Respondent did not appeal from the aforesaid decision until December 20, 1978.
In the interval, the Commission received a deci sion from Revenue Canada to the effect that the employment was insurable for eight weeks of insurable work.
The Commission's appeal to the Umpire from the decision of the Board of Referees has not yet been heard, but it contends that the Board erred in law by ruling on the insurability of the claimant's employment, which was not within its jurisdiction; that the appeal is brought within sixty days of the day the decision was communicated to the claim ant (sections 95 and 98 of the Act); and that the decision was not implemented because the Com mission is of the opinion that section 103 of the Act does not apply, since by exceeding its jurisdic tion the Board did not make any decision in this case. Accordingly, the Commission refused to pay the benefits to the claimant pending the outcome of its appeal to the Umpire, thus obliging applicant to institute these proceedings asking that a writ of mandamus be issued, if she wishes to collect her benefits in accordance with the decision of the Board of Referees without awaiting the outcome of the appeal.
Section 103 reads as follows:
103. (1) Where a claim for benefit is allowed by a board of referees, benefit is payable in accordance with the decision of the board notwithstanding that an appeal therefrom is pending, and any benefit paid in pursuance of this section after the decision of the board of referees shall be treated, notwithstand ing that the final determination of the question is adverse to the claimant, as having been duly paid, and is not recoverable from the claimant.
(2) Subsection (1) does not apply
(a) if the appeal was brought within twenty-one days of the day on which the decision of the board of referees was given and on the ground that the claimant ought to be disentitled under section 44, and
(b) in such other cases as the Commission by regulation prescribes.
Section 44 deals with collective agreements, and section 167 of the Regulations reads:
167. Benefits are not payable pursuant to a decision of a board of referees if, within twenty-one days of the day on which the decision is given, the Commission appeals to an umpire on the ground that the board ... did not take into account a provision of the Act or these Regulations.
As the appeal at bar was not initiated within twenty-one days the claimant appears to be en titled to her benefits, although the appeal was
brought within the sixty days allowed by section 98.
However, the Commission argued that in effect the decision of the Board of Referees is void, because the Board was not entitled to decide whether the claimant held insurable employment within the qualifying period, and the procedure indicated was that undertaken by the Commission, of seeking a decision from the Minister on this matter.
Section 75(3) of the Act reads: 75. ...
(3) Where any question arises in relation to a claim for benefit under this Act whether
(a) any person is or was employed in insurable employment, or
(b) a person is the employer of an insured person, the Commission may at any time, and such person or the employer or purported employer of such person may within ninety days after the decision of the Commission is notified to him, apply to the Minister for determination of this question.
Insurable employment is defined in section 3(1) of the Act, and it is clear that it in no way depends on the number of contributions, only on the nature of the employment. I therefore conclude that it was the Board of Referees which was entitled to decide whether the claimant had enough contribu tions, and if the Commission is dissatisfied with the decision it is certainly entitled to appeal, as it has done.
If it did not institute an appeal within twenty- one days the benefits must be paid. The later decision of the Minister, on December 1, changes nothing in this regard, and indeed in my opinion this is not a question that should be submitted to the Minister for decision. It is not even necessary for applicant to appeal the said decision, which under section 84(1) should be implemented within ninety days of the Minister's decision of December 1, 1978, If there is a conflict between this decision and that of the Board of Referees, the decision of the Umpire in the Commission's appeal will resolve it.
Issuance of the writ of mandamus is therefore granted, with costs.
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