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A-143-80
Attorney General of Canada (Applicant)
v.
Jean Simoneau (Respondent)
Court of Appeal, Pratte and Heald JJ. and Lalande D.J.—Montreal, March 23, 1981.
Judicial review — Unemployment insurance — Work stop page — Decision of Umpire entitling respondent to unemploy ment insurance benefits — Application to review and set aside Umpire's decision because of termination of work stoppage Whether the fact that an employer has managed to continue or resume operations means that the work stoppage by his employees has terminated — Unemployment Insurance Act, 1971, S.C. 1970-71-72, c. 48, s. 44 — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
APPLICATION for judicial review. COUNSEL:
Jean-Marc Aubry for applicant. Pierre Leduc for respondent.
SOLICITORS:
Deputy Attorney General of Canada for applicant.
Pierre Leduc, c/o Confederation of National
Trade Unions, Montreal, for respondent.
The following is the English version of the reasons for judgment of the Court delivered orally by
PRATTE J.: We all feel that this application should be allowed.
The Umpire had to decide whether respondent was eligible for unemployment insurance benefits despite section 44 of the Act [Unemployment In surance Act, 1971, S.C. 1970-71-72, c. 48], which excludes anyone "who has lost his employment by reason of a stoppage of work attributable to a labour dispute", as long as the work stoppage continues.
It was established that on January 26, 1977 more than 25 employees working at the CJMS radio station in Montreal went on strike, and that this strike was still in progress in October 1977. It was further established that the strike was attributable to a labour dispute which was also still
in progress in October 1977. In spite of this, the Umpire held that the work stoppage of the CJMS employees had ceased in the spring of 1977, because since that time the employer, by resorting to temporary and exceptional measures, had been broadcasting almost normal programming. Merely by virtue of the fact that, using a computer, the employer had managed to broadcast daily for the usual length of time programs which did not differ to any great extent from those broadcast earlier, the Umpire concluded that the work stoppage had terminated. In our opinion, he erred in law in doing so.
The question of whether a work stoppage has terminated is a question of fact in each case. However, it is clear that when an employer is the victim of a strike, the work stoppage by his employees cannot be said to have terminated merely because the employer managed to continue or resume operations.
For these reasons, the decision will be quashed and the matter referred back to the Umpire to be decided by him on the assumption that the fact that an employer has managed to continue or resume operations does not mean that the work stoppage by his employees has terminated.
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