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T-2531-81
Attorney General of Canada (Applicant)
v.
Board of Referees constituted pursuant to section 91 of the Unemployment Insurance Act, 1971 and comprising E. Berry, E. Barrett and O. Quinn
(Respondent)
Trial Division, Mahoney J.—Ottawa, May 19 and 20, 1981.
Prerogative writs — Prohibition — Applicant seeking to prohibit Board of Referees from hearing an appeal from a decision of the Employment and Immigration Commission — Complaint before the Commission that employees had not benefited from a reduction of employer's premium granted to the employer company, contrary to s. 25(1) of the Unemploy ment Insurance Regulations, dismissed — Whether Board of Referees has jurisdiction to hear the appeal — Unemployment Insurance Act, 1971, S.C. 1970-71-72, c. 48, ss. 2(1)(b), 17, 19, 64(1),(4), 94(1) — Unemployment Insurance Regulations, C.R.C. 1978, Vol. XVIII, c. 1576, ss. 24(2),(3),(4), 25(1), 60.
Employment and Immigration Commission of Canada v. MacDonald Tobacco Inc. [1981] 1 S.C.R. 401, referred to. Cornish-Hardy v. Board of Referees constituted under section 91 of the Unemployment Insurance Act, 1971
[1979] 2 F.C. 437; affirmed [1980] 1 S.C.R. 1218, applied.
APPLICATION. COUNSEL:
P. Annis for applicant.
Allan R. O'Brien for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Nelligan/Power, Ottawa, for respondent.
The following are the reasons for judgment rendered in English by
MAHONEY J.: The Attorney General of Canada seeks to prohibit a Board of Referees, constituted under the Unemployment Insurance Act, 1971,' from hearing an appeal from a decision of the Canada Employment and Immigration Commis sion, hereinafter "the Commission", on the ques-
' S.C. 1970-71-72, c. 48.
tion of an employer's compliance with the provi sions of subsection 25 (1) of the Unemployment Insurance Regulations 2 concerning the sharing of premium reductions received by the employer. The Attorney General, expressly, did not rely on the fact that the appeal to the Board of Referees was taken by a trade union, rather than individual employees, wishing to have the question deter mined on its merits. The respondent conceded that this Court is bound by a decision of the Federal Court of Appeal 3 that the Attorney General, although not a party to the proceedings before the Board of Referees, has the right to make such an application, notwithstanding the dictum of the Supreme Court of Canada in the appeal therefrom.' The Commission, members of the Board of Referees, the employer and the union were served with the originating notice of motion. Counsel for the Attorney General and the union only sought to be heard.
The Act provides:
64. (1) Unless another rate of premium is provided for a year pursuant to this section, the employer's premium to be paid in a year by an employer of an insured person shall be 1.4 times the employee's premium for that year.
(4) The Commission shall, with the approval of the Governor in Council, make regulations to provide a system for reducing an employer's premium payable under this Act when the payment of any allowances, monies or other benefits under a plan that covers insured persons employed by the employer, other than one established under provincial law, would have the effect of reducing the benefits that are payable to such insured persons under the Act, in respect of unemployment caused by illness or pregnancy, if insured persons employed by the employer will benefit from the reduction of the employer's premium in an amount at least equal to five-twelfths of the reduction.
Subsection 25 (1) of the Regulations iterates the condition of subsection 64(4) of the Act that:
25. (1) A reduction of an employer's premium may be granted only if insured persons employed by an employer will benefit from the reduction in an amount at least equal to 5/12 of the reduction.
2 C.R.C. 1978, Vol. XVIII, c. 1576.
3 In re Anti-dumping Tribunal [1973] F.C. 745, at pp. 758 ff.
4 [1976] 2 S.C.R. 739, at pp. 741 ff.
The United Food Processors Union, Local 483, on behalf of insured persons employed by The Canada Starch Company Limited, complained to the Commission that those employees had not, in fact, benefited from a reduction of employer's premium granted the Company. The Commission investigated the complaint and determined that the required share of the reduction had, in fact, been passed on. That is the decision which was appealed to the Board of Referees and which the Board has decided it has jurisdiction to entertain.
Apart from sections 56 and 57, neither of which is in play, a board of referees derives its jurisdic tion from subsection 94(1) of the Act.
94. (1) The claimant or an employer of the claimant may at any time within thirty days from the day on which a decision of the Commission is communicated to him, or within such fur ther time as the Commission may in any particular case for special reasons allow, appeal to the board of referees in the manner prescribed.
Paragraph 2(1) (b) provides:
2. (1) In this Act,
(b) "claimant" means a person who applies or has applied for benefit under this Act;
"Benefit" is not defined.
The Act and Regulations make no provision for an employee to apply for the benefit of the share of his employer's rate reduction. Rather, the require ment that he so benefit is a condition precedent to the approval of the employer's application for the reduction.
Section 24 of the Regulations, after providing for the making of such application, goes on:
24....
(2) Upon receiving an application for a reduction of an employer's premium, an officer of the Commission shall decide whether or not a reduction shall be made.
(3) An employer may, within 30 days of the mailing of a notice of a decision made pursuant to subsection (2), or within such further time as the Commission may allow, apply for a review of the decision by a review panel consisting of officers designated by the Commission.
(4) An employer who is not satisfied with the decision of the review panel referred to in subsection (3) may appeal to the Commission for a final determination of the question.
After reciting those provisions, the Supreme Court of Canada observed: 5
What is evident from the Regulations and, especially the quoted provisions of s. 24, is that there is a one-way review prescribed in respect of an application for a premium reduction, namely, a review at the instance of the employer. If, as in the present case, a premium reduction is allowed by the Commis sion's officer, there is nothing in the Regulations that permits review of the allowance if the employer is satisfied with it; neither the officer nor the Review Panel nor the Commission itself is given any express power to act on his or its own initiative to set aside an allowed reduction after it has been granted. Only the employer may, under the Regulations, con test a decision which is unfavourable to it.
The Supreme Court was not, in that case, consid ering the position of employees; however, the determination, once made, would appear no more open to review by the Commission at the instance of the employees than it is suo motu.
Section 60 of the Regulations, formerly section 175, permits the Commission to remit certain liabilities arising under the Act, such as penalties and overpayments of benefit. A refusal to remit has been held to be a decision not appealable to a board of referees under section 94 of the Act. 6
For an employee to have a right of appeal to a board of referees under section 94, he must be a claimant. He can be a claimant only if, at the appeal stage, he has applied for benefit under the Act. A request that the Commission review the employer's compliance with the requirement that its employees benefit from the rate reduction as prescribed is no more an application for benefit under the Act than is a request for remission under section 60 of the Regulations.
In the latter case, at least, a "benefit" in the broad sense of that word, is clearly being sought. I will refrain from speculation on just what the "benefit" might have been for the employees here if the Commission had found as they alleged.
5 Employment and Immigration Commission of Canada v. MacDonald Tobacco Inc. [1981] 1 S.C.R. 401 at pp. 404-405.
6 Cornish-Hardy v. Board of Referees constituted under section 91 of the Unemployment Insurance Act, 1971 [1979] 2 F.C. 437. Affirmed [1980] 1 S.C.R. 1218.
However, in my view, the "benefit under this Act" for which a person must have applied in order to be a "claimant" with a right of appeal to a board of referees is not benefit in that broad sense. The whole scheme of the Act leads to the conclusion that the term "benefit under this Act" means the "unemployment insurance benefits" made payable, by section 17, under Part II of the Act, and required to be applied for by section 19. On apply ing, an "insured person" becomes a "claimant".
The Board of Referees is without jurisdiction to hear this appeal. The application will be allowed without costs. The applicant may, if it is required, draft and submit a formal order.
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