A-1132-84
Douglas Garland (Applicant)
v.
Canada Employment and Immigration Commis
sion (Respondent)
Court of Appeal, Pratte, Heald and Urie JJ.—
Calgary, October 31; Ottawa, November 20, 1985.
Unemployment insurance — Qualifying period — Extension
— Application to set aside Umpire's decision "gaol, peniten
tiary or other similar institution" in s. 18(2)(b) of Act not
including time spent outside prison under temporary absence
permit — Temporary absence permit granted on condition
applicant reside at and work on parents' farm — Analysis of s.
18(2)(b) in context of entire Act, particularly s. 45, and Regu
lations, particularly s. 55 — Attorney General of Canada v.
Tanner, [1983] 1 F.C. 389 (C.A.) applied — Application
allowed — Applicant not available for employment while
subject to temporary absence permit — Applicant just as
institutionalized as if confined to prison — Entitled to full
benefit of extension under s. 18(2) — Unemployment Insurance
Act, 1971, S.C. 1970-71-72, c. 48, ss. 18(1),(2) (as am. by S.C.
1976-77, c. 54, s. 31; 1978-79, c. 7, s. 4.1), 45 (as am. by S.C.
1974-75-76, c. 80, s. 17) — Unemployment Insurance Regula
tions, C.R.C., c. 1576, s. 55 — Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10, s. 28.
Statutes — Statutory interpretation — Unemployment In
surance Act, 1971, s. 18(2)(b) — Intention of Parliament
determined from words in Act — Necessary to read statute in
entirety to determine if words clear and unambiguous — If no
ambiguity, words given ordinary, natural meaning — Common
rationale in s. 18(2) situations where individuals not available
for employment through circumstances beyond their control —
Release under temporary absence permit whereunder restricted
to residing at and working on parents' farm within words
"confined in any gaol, penitentiary or other similar institu
tion" in s. 18(2)(b) — S. 45 of Act and s. 55 of Regulations
supporting interpretation of s. 18(2)(b) — Unemployment In
surance Act, 1971, S.C. 1970-71-72, c. 48, ss. 18(1),(2) (as am.
by S.C. 1976-77, c. 54, s. 31; 1978-79, c. 7, s. 4.1), 45 (as am.
by S.C. 1974-75-76, c. 80, s. 17) — Unemployment Insurance
Regulations, C.R.C., c. 1576, s. 55.
This is an application to set aside the Umpire's decision,
reversing the decision of a Board of Referees. The applicant
was employed until January, 1982. He was in direct physical
custody from January 14, 1982 until September 24, 1982. On
September 24, he was released on temporary absence, provided
that he reside at and work on his parents' farm. The sentence
was completed on March 24, 1983. The temporary absence
permit was subject to conditions, the breach of which would
require the applicant to return to prison. For approximately one
and one-half months after his release, the applicant was
required to return to the prison each night. The applicant
applied for unemployment insurance benefits on August 15,
1983. Pursuant to sections 17 and 18(1) of the Act, the
applicant was required to have ten or more weeks of insurable
employment during the period from August 15, 1982 to August
13, 1983 (the qualifying period). Since the applicant was
unemployed from March 24, 1983 until August 13, 1983, the
end of his qualifying period, he was credited with only six
weeks of insurable employment. The Commission denied his
application for benefits on the basis that subsection 18(2)
entitled the applicant to an extension of the qualifying period
for only those weeks during the qualifying period when he was
physically confined to the institution (from August 15, 1982 to
September 24, 1982, a period of six weeks). The Commission
held that the applicant was not entitled to credit for the time he
spent on his parents' farm. The Board of Referees held that the
applicant was "confined in a gaol, penitentiary or other similar
institution from September 24, 1982 to March 24, 1983"
within the meaning of subsection 18(2). The Umpire concluded
that the common sense dictionary meaning of "gaol, penitentia
ry or other similar institution" would not entitle the applicant
to include as qualifying weeks the time he spent on his parents'
farm during the qualifying period. The issue is the meaning of
paragraph 18(2)(b).
Held (Pratte J. dissenting), the application should be
allowed.
Per Heald J. (Urie J. concurring): If the words are clear and
unambiguous they must be followed. The statute must be read
in its entirety to determine whether or not the words being
interpreted are clear and unambiguous. Subsection 18(2) pro
vides that an applicant's qualifying period may be extended in
certain specified situations. The situations stipulated all envis
age a factual scenario in which the applicant is not available for
employment through external circumstances beyond his con
trol. Parliament has manifested a clear intention to relieve
individuals caught in the circumstances therein enumerated
from the unfair consequences of those circumstances—namely,
ineligibility for benefits. Here, the applicant was unavailable
for employment not only when he was physically confined, but
also when he was subject to the terms of his temporary absence
permit. He was just as institutionalized as if he were confined
to a prison. Since the rationale for subsection 18(2) subsisted in
this applicant's case for the entire period from January 14,
1982 to March 24, 1983, the applicant is entitled to the full
benefit of the extension provided under subsection 18(2). Sec
tion 45 provides that a claimant is not entitled to receive benefit
for any period during which he is an inmate of any prison or
similar institution. Section 55 of the Regulations exempts from
the prohibition of section 45 inmates who have been physically
released from prison for the purpose of seeking and accepting
employment in the community. When subsection 18(2) is con
sidered along with section 45 and Regulation 55, it is clear that
Parliament intended that the class of individuals described in
paragraph 18(2)(b) must include those prisoners who, while not
physically confined, are not available for employment. In
Attorney General of Canada v. Tanner, [1983] 1 F.C. 389
(C.A.) it was held that what Regulation 55 contemplated was
that the inmate has been granted parole or temporary absence
and was not disabled by his incarceration from looking for
work. This confirms that since the applicant was not available
for employment during his temporary absence, he remained in
the class of individuals described in paragraph 18(2)(b).
Per Pratte J. (dissenting): The applicant was not "confined in
[a] gaol, penitentiary or other similar institution" within the
meaning of paragraph 18(2)(b) when he resided and worked at
his parents' farm subject to the temporary absence permit. The
farm was not a "gaol, penitentiary or other similar institution".
CASES JUDICIALLY CONSIDERED
APPLIED:
R. v. Mojelski (1968) 65 W.W.R. 565 (Sask. C.A.);
Westminster Bank Ltd. v. Zang, [1966] A.C. 182 (H.L.);
Attorney-General v. Prince Ernest Augustus of Hanover,
[1957] A.C. 436 (H.L.); Attorney General of Canada v.
Tanner, [1983] 1 F.C. 389 (C.A.).
COUNSEL:
Paul Groarke for applicant.
Gordon Bourgard for respondent.
SOLICITORS:
Gainer, Doyle & Groarke, Calgary, for
applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
PRATTE J. (dissenting): I have read the reasons
for judgment prepared by my brother Heald and
regret not to be able to share his opinion.
The only question to be resolved is whether the
applicant was "confined in [a] gaol, penitentiary
or other similar institution" within the meaning of
paragraph 18(2)(b) of the Unemployment Insur
ance Act, 1971 [S.C. 1970-71-72, c. 48 (as am. by
S.C. 1976-77, c. 54, s. 31)], when, after his release
from prison under a temporary absence permit, he
resided and worked at his parents' farm. In my
opinion, he was not. As I read it, paragraph
18(2)(b) is clear and admits of no other interpreta
tion. While I am ready to concede that the appli
cant was, in view of the terms of the absence
permit, confined in his parents' farm, that farm
was clearly not a "gaol, penitentiary or other
similar institution".
I would, therefore, dismiss the application.
* * *
The following are the reasons for judgment
rendered in English by
HEALD J.: This is a section 28 application to
review and set aside the decision of an Umpire
appointed pursuant to the provisions of the Unem
ployment Insurance Act, 1971, (the Act).
In that decision the Umpire reversed the unani
mous decision of a Board of Referees. The relevant
facts are not in dispute and may be shortly stated.
The applicant was employed by Digitech Ltd., in
Calgary from February of 1979 until January of
1982. On January 14, 1982, he was incarcerated in
the Calgary Remand Centre, a correctional insti
tution operated by the Solicitor General of Alber-
ta. He remained there until April 2, 1982, when he
was transferred to the Calgary Correctional
Centre. On June 25, 1982, he was transferred to
the Bow River Correctional Centre where he
remained until September 24, 1982. Thus, at all
times from January 14, 1982 until September 24,
1982, he remained in direct, physical custody. On
September 24, 1982, he was released on temporary
absence on "... the specific understanding and
condition that he reside at his parents' farm near
Crossfield, Alberta and work on that farm for the
period of his Temporary Absence." The temporary
absence release enabled the applicant to complete
his sentence outside the setting of a correctional
institution but under the supervision of a probation
officer. His sentence was completed on March 24,
1983. The applicant's release on temporary
absence was subject to some twelve conditions
(Case, page 30). Those conditions required the
applicant, inter alia,: to remain until the expiry of
the temporary absence under the authority and
supervision of a designated Correctional Services
supervisor; to remain in "the immediate designated
area" and not leave that area without prior per
mission from his supervisor and to report in person
to a designated correctional institution or police
station on specified dates. Failure to comply with
any of the twelve conditions enumerated therein
rendered the temporary absence permit null and
void and required the applicant to return to a
designated correctional institution or to be
declared unlawfully at large therefrom.
This section 28 application was argued on the
basis that from January 14, 1982 until September
24, 1982, the applicant was in direct, physical
custody in a correctional institution and that from
September 24, 1982 until March 24, 1983, he was
physically resident and present at his parents' farm
near Crossfield, Alberta. However, there is uncon-
tradicted evidence on the record suggesting that
for approximately one and one-half months after
September 24, 1982, he was required to return to
the correctional institution each night (Case, page
24).
On August 15, 1983, an application for unem
ployment insurance benefits was filed with the
Commission by the applicant. Pursuant to sections
17 and 18(1) [as am. by S.C. 1976-77, c. 54, s. 31]
of the Act, the applicant, in order to qualify for
benefits, was required to have ten or more weeks of
insurable employment during the period from
August 15, 1982 to August 13, 1983 (the qualify
ing period for this applicant). Subsection (2) [as
am. by S.C. 1976-77, c. 54, s. 31; 1978-79, c. 7, s.
4.1] of section 18 provides:
18....
(2) Where a person proves in such manner as the Commis
sion may direct that during any qualifying period mentioned in
paragraph (a) of subsection (1) he was not employed in insur-
able employment for the reason that he was for any week
(a) incapable of work by reason of any prescribed illness,
injury, quarantine or pregnancy,
(b) confined in any gaol, penitentiary or other similar
institution,
(c) in attendance at a course of instruction or other program
to which he was referred by such authority as the Commis
sion may designate, or
(d) in receipt of temporary total workmen's compensation
payments for an illness or injury,
that qualifying period shall, for the purposes of this section, be
extended by the aggregate of any such weeks.
Since the applicant was unemployed from March
24, 1983 until August 13, 1983, the end of his
qualifying period, he was only credited with six
weeks out of the total of ten weeks of insurable
employment required during the qualifying period
and on this basis, the Commission denied his
application for benefits. It was the Commission's
decision that subsection 18(2) only entitled the
applicant to an extension of the qualifying period
for those weeks during the qualifying period when
he was physically confined to the institution (from
August 15, 1982 to September 24, 1982—a period
of six weeks). It was the Commission's interpreta
tion of subsection 18(2) that the applicant was not
entitled to credit for the time he was physically
present on his parent's farm, pursuant to the tem
porary absence permit referred to supra.
The applicant appealed this decision to a Board
of Referees. The Board disagreed with the Com
mission's interpretation of subsection 18(2) and
held that the applicant was "confined in a gaol,
penitentiary or other similar institution from 24
September, 1982 to 24 March, 1983" within the
meaning of subsection 18(2). Accordingly, the
Board allowed the applicant's appeal to it and
ordered that "appropriate recalculations of insur-
able weeks" in the applicant's qualifying period
should be made.
The Commission then appealed the Board's
decision to an Umpire. The Umpire applied the
"golden rule" of statutory construction and con
cluded that the ordinary common sense dictionary
meaning of the phrase "gaol, penitentiary or other
similar institution" as employed in subsection
18(2) supra, would not entitle the applicant to
include as qualifying weeks the time he spent on
his parents' farm during the qualifying period. On
this basis, he allowed the Commission's appeal and
reversed the decision of the Board.
Accordingly, the narrow issue to be resolved on
this section 28 application is the meaning to be
ascribed to paragraph 18(2)(b) as applied to the
facts at bar. Put another way, can this applicant,
who was released from a correctional institution
under a temporary absence permit on condition
that he work and reside on his parents' farm, be
said to have been confined to a gaol, penitentiary
or other similar institution during the period that
he was physically present and resident on that
farm?
The facts in the instant case produce an anoma
lous and unjust result if the Umpire is correct in
his interpretation of paragraph 18(2)(b). Counsel
for the Commission conceded that if the applicant
had remained in a correctional institution for the
balance of his sentence—that is, from September
24, 1982 until March 24, 1983, he would have
clearly been eligible for unemployment insurance
benefits. However, because of his early physical
release on a temporary absence permit and not
withstanding the many restrictive conditions
imposed upon him, he is not so eligible. Although
the record before us contains no information relat
ing to the basis upon which the applicant was
granted temporary absence, it is a fair inference
that he was so treated because of his trustworthi
ness and good conduct as an inmate. It seems
absurd that he should be penalized in such
circumstances.
What then is the proper approach to the inter
pretation of the phrase "confined in any gaol,
penitentiary or similar institution" as used in para
graph 18(2)(b) of the Act? Dr. Driedger, in Con
struction of Statutes, 2nd Edition, states at page
87:
Today there is only one principle or approach, namely, the
words of an Act are to be read in their entire context and in
their grammatical and ordinary sense harmoniously with the
scheme of the Act, the object of the Act, and the intention of
Parliament.
Chief Justice Culliton in the R. v. Mojelski case
((1968) 65 W.W.R. 565 (Sask. C.A.), at page
570) stated the same principle in more specific
terms. It was his opinion that if there is no
ambiguity, uncertainty or conflict with any other
provision of the statute under review and provided
that there is no repugnance to the general purview
of the statute, the Court must give the words used
in the enactment their ordinary and natural mean
ing. Lord Reid in Westminster Bank Ltd. v. Zang,
([1966] A.C. 182 (H.L.), at page 222) stated the
principle in the following manner:
But no principle of interpretation of statutes is more firmly
settled than the rule that the court must deduce the intention of
Parliament from the words used in the Act. If those words are
in any way ambiguous—if they are reasonably capable of more
than one meaning—or if the provision in question is contradict
ed by or is incompatible with any other provision in the Act,
then the court may depart from the natural meaning of the
words in question. But beyond that we cannot go.
As we have seen, the jurisprudence establishes that
if the words are clear and unambiguous they must
be followed. However, it is necessary to read the
statute containing the words in issue in its entirety
as an initial step. Only after that has been done
can it be determined with any precision whether or
not the words being interpreted are clear and
unambiguous. This concept was well stated by
Viscount Simonds in the Attorney-General v.
Prince Ernest Augustus of Hanover case ([1957]
A.C. 436 (H.L.), at page 463) where he said:
... it must often be difficult to say that any terms are clear and
unambiguous until they have been studied in their context.
That is not to say that the warning is to be disregarded against
creating or imagining an ambiguity ... It means only that the
elementary rule must be observed that no one should profess to
understand any part of a statute or of any other document
before he has read the whole of it. Until he has done so he is
not entitled to say that it or any part of it is clear and
unambiguous.
I proceed now to a consideration of the scheme of
the Unemployment Insurance Act, 1971, in so far
as it pertains to the factual situation in this case
having regard to the canons of statutory interpre
tation enunciated supra. Part II of the Act is
entitled UNEMPLOYMENT INSURANCE BENEFITS
and encompasses sections 16 to 58 inclusive of the
Act. As noted earlier herein, sections 17 and 18 (1)
required the applicant to have ten or more weeks
of insurable employment in his qualifying period.
"Qualifying period" is defined in subsection (1) of
section 18 and on these facts the qualifying period
was from August 15, 1982 to August 13, 1983.
Subsection (2) of section 18 provides that an appli
cant's qualifying period may be extended in cer
tain specified situations. The situations detailed in
paragraphs (a), (b), (e) and (d) have a common
rationale. They all envisage a factual scenario in
which the applicant is not available for employ
ment through external circumstances beyond his
control. Paragraph (a) refers to illness, injury,
quarantine or pregnancy. Paragraph (d) relates to
a job-related illness or injury. Paragraph (c) deals
with unavailability because of required attendance
at an approved course of instruction. Paragraph
(b), the provision here in issue, addresses those
who are confined in a penal institution and thus
unavailable for insurable employment. By the
enactment of subsection 18(2), Parliament has, in
my view, manifested a clear intention to relieve the
individuals caught in the circumstances therein
enumerated from the unfair consequences of those
circumstances—namely, ineligibility for benefits.
The method chosen by Parliament in subsection
(2) to prevent such an unjust result, is to provide
for an extension of the qualifying period in such
circumstances. In the case at bar, this applicant
was unavailable for employment not only for the
period from January 14, 1982 to September 24,
1982, when he was physically confined but also
during the period from September 24, 1982 to
March 24, 1983 when he was equally unavailable
for employment because of the specific terms of
his temporary absence permit. Furthermore, on
any fair appreciation of the word "institution" in
its present context, the applicant was just as insti
tutionalized on the facts of this case as if he were
confined to a building built for the purpose of
confining prisoners. Thus, in my view, since the
rationale for subsection (2), as above stated, sub
sisted in this applicant's case for the entire period
beginning on January 14, 1982 and ending on
March 24, 1983, I conclude that the applicant is
entitled to the full benefit of the extension pro
vided under subsection (2). Furthermore, I think
this conclusion is fortified by a consideration of
section 45 [as am. by S.C. 1974-75-76, c. 80, s. 17]
of the Act and section 55 of the Regulations
[Unemployment Insurance Regulations, C.R.C., c.
1576]. Section 45 provides:
45. Except under section 31, a claimant is not entitled to
receive benefit for any period during which
(a) he is an inmate of any prison or similar institution; or
(b) he is not in Canada,
except as may otherwise be prescribed.
Regulation 55 is entitled Inmates of an Institution
and reads:
55. A claimant who is an inmate of a prison or similar
institution and has been granted parole, partial parole or
temporary absence, or a certificate of availability for the
purpose of seeking and accepting employment in the commu
nity, is not disentitled from receiving benefit by reason only of
section 45 of the Act.
It should be noted that section 45 of the Act
applied to "an inmate of any prison or similar
institution". (Emphasis added.) Regulation 55
modifies the effect of section 45 if two conditions
are met:
1. the claimant is on some form of temporary
release, and
2. he is not prevented from looking for work.
I would observe, initially, that section 45 and
Regulation 55 use the word "inmate" in a prison
or similar institution whereas subsection 18(2)
refers to a person "confined" to a gaol, penitentia
ry or other similar institution. Regulation 55
exempts from the prohibition of section 45, those
inmates who have been physically released from
prison for the purpose of seeking and accepting
employment in the community. When subsection
18(2) is considered along with section 45 and
Regulation 55, it is clear to me that Parliament
intended that the class of individuals described in
paragraph 18(2)(b) must necessarily include those
prisoners who, while not still remaining in physical
confinement, are nevertheless still within the class
since they are not yet available for employment.
This applicant comes within that class, in my view.
This Court had the occasion to consider the
correct interpretation to be given section 45 of the
Act and section 55 of the Regulations in the case
of Attorney General of Canada v. Tanner, [1983]
1 F.C. 389 (C.A.). At page 391, Chief Justice
Thurlow said:
The evidence referred to by the Board is not in the record
before the Court but it seems clear that the question which the
Board addressed was that of whether the respondent was
available for work and that the Board found that he was
available. The Board does not appear to have addressed or
answered the question posed by Regulation 55; that is to say,
whether the respondent had been granted temporary absence
from prison within the meaning of the Regulation. If they did,
it seems that they treated the availability of a temporary
absence permit to work as equivalent to a "temporary absence"
within the meaning of the Regulation.
In so doing, we think the Board erred in law. In our view,
what Regulation 55 contemplates is that the inmate has been
granted parole or temporary absence and is not disabled by his
incarceration from looking for work. The Regulation also pro
vides that an inmate who may still be in custody but who has
been granted a certificate of availability for the purpose of
seeking and accepting employment in the community will not
be disentitled by section 45 of the Act from receiving benefits.
The Board did not find either that the respondent had been
granted a temporary absence permit or a certificate and it is
common ground that he remained in prison. [Emphasis added.]
This view of the matter confirms my conclusion
expressed supra, that since this applicant was not
available for employment during the period of his
temporary absence, he must be considered to have
remained in the class of individuals described in
paragraph 18(2)(b) during that period.
For these reasons, I conclude that the decision
of the Board of Referees was correct and that the
Umpire erred in law in reversing the Board's deci
sion. I would allow the section 28 application, set
aside the decision of the Umpire and refer the
matter back to an Umpire to be dealt with on the
basis that the applicant was confined in a gaol,
penitentiary or other similar institution from Sep-
tember 24, 1982 to March 24, 1983.
URIE J.: I agree.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.