Judgments

Decision Information

Decision Content

A-223-79
Émile Langford (Applicant) v.
Employment and Immigration Commission, Roger Poirier, Gaby Cloutier and Jeanne D'Arc Villeneuve (Respondents)
and
Deputy Attorney General of Canada (Mis -en- cause)
Court of Appeal, Pratte and Le Dain JJ. and Hyde D.J.—Montreal, September 19 and 21, 1979.
Judicial review — Unemployment insurance — Board of Referees dismissed applicant's appeal and confirmed Employ ment and Immigration Commission's decision that applicant not entitled to receive benefits paid him by mistake — Appli cant not entitled to benefits paid him pursuant to s. 37 of the Act if national and regional rates of unemployment determined in accordance with s. 166(2) of the Regulations — Whether or not Employment and Immigration Commission had power to enact s. 166(2) of the Regulations — Unemployment Insurance Act, 1971, S.C. 1970-71-72, c. 48, s. 37 — Unemployment Insurance Regulations, SOR/71-324, s. 166(2).
APPLICATION for judicial review. COUNSEL:
R. Cousineau for applicant.
R. Paquette for R. Biais.
J. M. Aubry for respondents and mis -en-
cause.
SOLICITORS:
Cousineau & Beauvais, Montreal, for appli
cant.
Paquette & Meloche, Montreal, for R. Biais.
Deputy Attorney General of Canada for respondents and mis -en-cause.
The following is the English version of the reasons for judgment delivered orally by
PRATTE J.: Applicant is challenging, pursuant to section 28 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, a unanimous decision of a Board of Referees acting in accordance with sec tions 94 et seq. of the Unemployment Insurance Act, 1971, S.C. 1970-71-72, c. 48. By this decision,
the Board dismissed an appeal by applicant and affirmed the decision of the Employment and Immigration Commission that applicant was not entitled, under section 37 of the Unemployment Insurance Act, 1971, to receive the benefits paid to him by mistake from December 11, 1977 to Janu- ary 7, 1978.
It is common ground that the benefits received by applicant from December 11, 1977 to January 7, 1978 were paid to him pursuant to section 37 of the Act, and that under that section, as it then stood, applicant was only entitled to these benefits if, at the time, the unemployment rate in the region where he resided exceeded four per cent, and if at the same time the national unemploy ment rate was less than the regional rate by more than one per cent.'
It is further admitted that, from December 11, 1977 to January 7, 1978, the conditions laid down by section 37(1) were not met, and that according ly applicant was not entitled to the benefits which he received, if the national and regional unemploy ment rates referred to by section 37 must be determined in accordance with the provisions of section 166(2) of the Unemployment Insurance Regulations, SOR/71-324. This section reads as follows:
166....
(2) For the purposes of section 37 of the Act, "national rate of unemployment" and "regional rate of unemployment" at any time means the average of the unadjusted monthly national or regional rates of unemployment respectively as determined by Statistics Canada for the most recent twelve-month period
' The text of section 37(1) then read as follows:
37.(1) When at the end of
(a) a re-established initial benefit period of a minor attachment claimant who has no extended benefit period under section 34, or
(b) the extended benefit period under section 34 of any other claimant
the rate of unemployment in the region where the claimant resides (in this section called the "regional rate") exceeds four per cent and the national rate of unemployment (in this section called the "national rate") is less than the regional rate by more than one percentage point, the claimant shall, if he resides in Canada, be given an extended benefit period not exceeding eighteen consecutive weeks and benefits are pay able for any week of unemployment that falls in that period and sections 35 and 36 are applicable thereto.
immediately preceding the time for which those rates are available.
The only question raised by this appeal is wheth er the Commission had the power to enact this section of the Regulations.
Counsel for the applicant maintained that sec tion 58 of the Act, which defines the regulatory power of the Commission, did not authorize it to adopt section 166(2), because this section of the Regulations, in his submission, gives to the phrases "national rate of unemployment" and "regional rate of unemployment" a meaning which cannot be reconciled with the definitions contained in paragraphs 2(1)(s) and 2(1)(w) of the Act, which read as follows:
2. (1) In this Act,
(s) "national rate of unemployment" means the rate of unemployment as determined by Statistics Canada for the whole of Canada, and "average national rate of unemploy ment" means the monthly national rates of unemployment in a year averaged for the year;
(w) "rate of unemployment" means the rate of unemploy ment as determined from time to time in a year;
To this argument counsel for the respondents replied that the Commission, in enacting section 166(2) of the Regulations, merely exercised the power conferred on it by section 58(u) of the Act, by which
58. The Commission may, with the approval of the Governor in Council, make regulations
(u) averaging any rates of unemployment for the purposes of paying extended benefits and prescribing the manner in which such averaging shall be carried out;
In my opinion, applicant's argument must be rejected.
The legislative and regulatory provisions which I have cited could certainly have been worded more carefully. Despite their obscurity, however, I have no doubt that the adoption of section 166(2) of the Regulations was authorized by section 58(u) of the Act.
Section 58(u) gives the Commission the power to average any rates of unemployment and pre scribe the manner in which such averaging shall be carried out "for the purposes of paying extended benefits". The only provisions of the Act dealing
with extended benefits are contained in sections 34 to 38 of the Act. Section 58(u) assumes, therefore, that in order to apply the provisions reference will be made to average rates of unemployment. Sec tions 34 to 38 (in particular section 37) contain no express reference to average unemployment rates: they only require that the regional unemployment rate and the national unemployment rate be deter mined at given times. This is what leads to dif ficulty and enables counsel for the applicant to maintain that a regulation adopted under section 58(u) cannot affect the application of section 37(1). However, it should not be forgotten that section 58(u) must be interpreted having regard to sections 34 to 38, so as to give effect to all the provisions which these sections contain. That being the case, I think it is clear that the words "for the purposes of paying extended benefits" in section 58(u) mean "for the purpose of determining the unemployment rates for purposes of sections 34 to 38". If section 58(u) is interpreted in this way, it is clear that section 166(2) of the Regulations was validly enacted.
For these reasons, I would dismiss the application.
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LE DAIN J. concurred.
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HYDE D. J. concurred.
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