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A-1052-82
Attorney General of Canada (Applicant)
v.
Roger Imbeault, Arthur Dancause, Jean-Marc St-Laurent, Laurent Robichaud (Respondents)
Court of Appeal, Pratte, Le Damn and Hugessen JJ.—Quebec City, February 15; Ottawa, April 9, 1984.
Unemployment insurance — Application to review and set aside Umpire's decision dismissing appeal from decision of Board of Referees that respondent Dancause entitled to ben efits — Respondent losing employment due to work stoppage at place of employment — Subsequently employed by another while strike continuing — Commission finding respondent ineligible for benefits because employment by another during strike not bona fide employment within meaning of s. 49 of Regulations since he had not worked in that employment two consecutive weeks — Board finding not necessary for part- time employee to work two consecutive weeks for bona fide employment — S. 49 of Regulations defining "bona fide employed" for purposes of s. 44(1)(b) of Act as genuinely employed in employment of not less than two weeks duration — Idea of duration implying continuity — Application allowed — S. 49 of Regulations requiring genuine employment for two consecutive weeks — Unemployment Insurance Act, 1971, S.C. 1970-71-72, c. 48, ss. 44(1)(b), 58(f) — Unemploy ment Insurance Regulations, C.R.C., c. 1576, s. 49 — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
COUNSEL:
Jean-Marc Aubry for applicant. Marwan Bachir for respondents.
SOLICITORS:
Deputy Attorney General of Canada for applicant.
Boivin, Dandenault, Bachir, Baie -Comeau, for respondents.
The following is the English version of the reasons for judgment rendered by
PRATTE J.: This application pursuant to section 28 of the Federal Court Act [R.S.C. 1970 (2nd Supp.), c. 10] is from a decision of an Umpire on appeals heard by him pursuant to Part V of the Unemployment Insurance Act, 1971 [S.C. 1970-
71-72, c. 48]. That decision decided nine different appeals. Applicant is only appealing here from a part of the Umpire's decision: that which dis missed the appeal by the Employment and Immi gration Commission from the decision of a Board of Referees that respondent Dancause was entitled to the benefits which he was claiming.
Respondent Dancause had worked for the Quebec North Shore Limitée paper company since May 13, 1980 when, on July 14, 1980, he lost his employment because of a work stoppage due to a labour dispute at his place of employment. As the Umpire said, there was no doubt that at that point respondent Dancause became ineligible for ben efits (subsection 44(1) of the Act). Subsequently, however, respondent Dancause like several of his fellow-workers was employed by another employer while the strike continued. This is what resulted in the several appeals heard by the Umpire. In a sense, all these appeals raised the same question: did the ineligibility of respondent Dancause and his fellow-workers end pursuant to paragraph 44(1)(b), according to which a claimant's ineligi bility ends if he becomes "bona fide" employed elsewhere in the occupation that he usually fol lows? In fact, however, the appeal regarding respondent Dancause raised a special problem. While in the case of his fellow-workers the ques tion was whether their employment during the strike was employment "in the occupation that [they] usually follow", the question raised by the appeal concerning respondent Dancause was whether his employment by another employer during the strike was "bona fide" employment within the meaning of section 49 of the Unemploy ment Insurance Regulations [C.R.C., c. 1576].'
' Under paragraph 58(f) of the Act the Commission may, with the approval of the Governor in Council, make regulations "determining ... the meaning of 'bona fide employed' for the purposes of section 44".
Pursuant to this power, the Commission adopted section 49 of the Regulations, which reads as follows:
49. For the purposes of paragraph 44(1)(b) of the Act "bona fide employed" means genuinely employed in employ ment of not less than two weeks duration.
During the strike, respondent Dancause worked for another employer for the weeks beginning Sep- tember 28, November 2, November 23 and December 14, 1980. On December 31, 1980 he made an initial claim for benefits. On March 9, 1981 the Commission informed him that he was regarded as ineligible, first, because he had lost his employment by reason of a work stoppage attributable to a labour dispute, and second, because his employment by another employer during the strike was not "bona fide" employment within the meaning of section 49 of the Regula tions, since he had not worked in that employment for two consecutive weeks.
The Board of Referees quashed this decision by the Commission, finding that in the case of part- time employment like that of the respondent, it was not necessary, in order for it to have been "bona fide" employment, for the employee to work for two consecutive weeks. The Commission appealed this decision to the Umpire. This appeal was heard, as I said above, concurrently with other appeals involving respondent Dancause's fellow- workers, and raising entirely different questions. This explains why the Umpire, in rendering the decision a quo, forgot that the appeal regarding respondent Dancause raised a special problem and omitted to rule on this question. It is common ground that the Umpire mistakenly treated the appeal involving respondent Dancause like those involving several of his fellow-workers, and that in all these cases he dismissed the appeals of the Commission on the ground that the employment held by these employees during the strike was in fact employment in the occupation that they usual ly followed.
The question is accordingly whether the Board of Referees erred in law in finding that respondent Dancause's employment during the strike was "bona fide" employment within the meaning of section 49 of the Regulations, despite the fact that respondent had not held that employment for two consecutive weeks. If the Board erred in arriving at this decision, it follows that the Umpire also erred in the same way in not setting aside the Board's decision; while if the Board of Referees was cor rect, the decision of the Umpire is unassailable.
Under section 49 of the Regulations, the phrase "bona fide employed" in paragraph 44(1)(b) of the Act means "genuinely employed in employ ment of not less than two weeks duration". Coun sel for the applicant argued that this provision should be understood as requiring that the two weeks in question be consecutive. Counsel for the respondent maintained that this interpretation adds to the wording of the Regulations.
In my view, if we look at the English version of section 49, it appears that a person is only bona fide employed within the meaning of paragraph 44(1)(b) of the Act if he has in fact worked in such employment for two weeks ("two weeks dura tion"). It appears to me that the idea of duration necessarily implies some continuity. It seems clear that it is not possible to say of someone who has worked in a job a half-day a week for twenty weeks that he has worked for two weeks' duration: and this is true even if the person worked as much time as someone who worked for two continuous weeks of work. For the same reason, it appears to me that respondent Dancause, by not working for two consecutive weeks, did not meet the require ments of section 49 of the Regulations.
I would accordingly allow the application, set aside the decision a quo in so far as it relates to respondent Dancause, and refer the matter back to the Chief Umpire for him to decide it, or cause it to be decided, by another Umpire on the assump tion that section 49 of the Regulations requires, in order for employment to be "bona fide" within the meaning of paragraph 44(1)(b) of the Act, that there must be genuine employment for two con secutive weeks.
LE DAIN J.: I concur. HUGESSEN J.: I concur.
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