A-769-80
Attorney General of Canada (Applicant)
v.
Umpire constituted under section 92 of the Unem
ployment Insurance Act, 1971 (Respondent)
Court of Appeal, Heald J., Lalande and McQuaid
D.JJ.—Charlottetown, November 6, 1981.
Judicial review — Unemployment insurance — Application
to review and set aside Umpire's decision — Umpire interpret
ed s. 16(1)(b) of the Unemployment Insurance Regulations as
permitting the claimant to combine a period of employment of
less than 25 days in 1977 with one employer with a period of
employment in 1978 so that the total of the two periods would
exceed 25 days — Whether the Umpire erred in his interpreta
tion of s. 16(1)(b) on the basis that he combined two periods of
employment in different calendar years and with different
employers — Application allowed — Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10, s. 28 — Unemployment
Insurance Regulations, C.R.C. 1978, Vol. XVIII, c. 1576, ss.
16(1)(b), 60(1)(e)(ii).
APPLICATION for judicial review.
COUNSEL:
Michael Butler for applicant.
APPEARANCE:
Eric Skerry and Carrie Skerry on behalf of
claimant Carrie Skerry.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
CLAIMANT ON HER OWN BEHALF:
Eric Skerry and Carrie Skerry, Summerside.
The following are the reasons for judgment of
the Court delivered orally in English by
HEALD J.: We are all of the view that the
learned Umpire erred in his interpretation of para
graph 16(1)(b) of the Unemployment Insurance
Regulations, C.R.C. 1978, Vol. XVIII, c. 1576.
That Regulation reads as follows:
16. (1) The employment of a person in agriculture, an
agricultural enterprise or horticulture by an employer who
(b) employs the employee on terms providing for payment of
cash remuneration for a period of less than 25 working days
in a year
is excepted from insurable employment.
The effect of the Umpire's interpretation is to
permit the combination of a period of employment
of less than twenty-five days with one employer
with a period of employment by another employer
so that the total of the two periods would exceed
twenty-five days, thus removing the employment
of a person in agriculture from the strictures of
Regulation 16(1)(b). In our view that interpreta
tion is not compatible with the plain and unambig
uous meaning of the words used in Regulation
16(1) (b) when taken in the context of the Act and
Regulations in their entirety. In quoting what he
considered to be the relevant portions of Regula
tion 16(1)(b) supra, the Umpire deleted three very
important and relevant words—i.e.----"by an
employer". The section clearly intends that the
excepted employment is employment of a person in
agriculture by an employer for a period of less
than twenty-five working days in a year. Thus, for
a claimant to be able to include agricultural
employment as insurable employment, Regulation
16(1)(b) requires that employment to be for a
minimum of twenty-five working days with each of
her agricultural employers in a calendar year. On
this record, while there is some ambiguity, it
appears that the claimant was seeking to add to
her seven weeks of insurable employment in
agriculture with Linkletter Farms in 1978, the
three weeks of employment (9' working days)
which she had with Norman Johnstone from
December 8, 1977 to December 21, 1977. On this
basis, the Umpire would be in error on a twofold
basis:
(a) The definition of "year" in section 2 of the
Act is calendar year. Therefore it is not possible
to combine a period in the calendar year 1977
with a period in the calendar year 1978 when
determining a period of insurable employment.
(b) It is not possible, for the reasons stated
supra, to combine a period of employment by
one employer with a period of employment by
another employer because of Regulation
16(1)(b).
If, however, the Umpire was restricting his con
sideration of the matter to 1977 and was combin
ing the Linkletter 1977 employment with the
Johnstone 1977 employment, he was in error
because the claimant's 1977 employment with
Johnstone comes clearly within the terms of the
definition of excepted employment as set out in
Regulation 16(1)(b) supra. It accordingly follows
in our view that the decision of the Minister dated
November 5, 1979 was correct. The section 28
application should therefore be allowed and the
decision of the Umpire set aside.
We feel constrained to add, in conclusion, that
on the uncontradicted evidence in this record,
there appear to be some unusual circumstances.
This evidence shows that the claimant was given
incorrect information by employees of the Com
mission as to the propriety of adding together the
two periods of agricultural employment here in
question, and that she may well have acted on this
incorrect information to her detriment. Because of
this circumstance it is our unanimous opinion that
the Commission should seriously consider the
application of Regulation 60(1)(e)(ii) to the cir
cumstances of this case.
* * *
LALANDE D.J. concurred.
* * *
McQuAmD D.J. concurred.
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