Judgments

Decision Information

Canada Employment and Immigration Commission v. Roy

Collection	Judgments
Date	1985-10-23
Report citation	[1986] 1 F.C. 193
File numbers	A-1198-84
Subjects	Unemployment Insurance

Decision Content

A-1198-84

Canada Employment and Immigration Commis sion (Applicant)

Martial Roy (Respondent)

and

Yvon Pinard J., Umpire (Mis -en-cause)

Court of Appeal, Pratte, Marceau and MacGuigan JJ.—Montreal, September 11; Ottawa, October 23, 1985.

Unemployment insurance — Respondent finding new employment after losing employment as result of work stop page due to labour dispute — Whether respondent "regularly engaged in some other occupation" within meaning of Act s. 44(1)(c) — Interpretation of Supreme Court of Canada deci sion in Abrahams v. Attorney General of Canada — Unem ployment Insurance Act, 1971, S.C. 1970-71-72, c. 48, ss. 3(2)(b), 44(1)(b),(c),(2), 58 — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28 — Unemployment Insurance Regula tions, C.R.C., c. 1576, s. 49.

Martial Roy, the respondent herein, Marcel Cournoyer, respondent in case No. A-1199-84 and Gratien Jacques, respondent in case No. A-1201-84 all had for several years been full-time employees of Sidbec-Feruni in Quebec. They lost their employment by reason of a stoppage of work attributable to a labour dispute. All three expected to resume their employ ment as soon as the dispute was settled. In the meantime, all three obtained alternative employment. The respondent's tem porary employment, maintenance work on an ice cream stand, would last only a few days, but the exact duration was not certain at the outset. Jacques, an engine driver, was hired on an exceptional basis by a soft drink company as a bottle washer. He worked for a total of sixty-five hours, spread unevenly over three weeks. Cournoyer, a blacksmith, worked in a packing plant from late July until the end of the harvest in October. The issue is whether, following the guidelines established by the Supreme Court of Canada in Abrahams, the respondents should be regarded as being "regularly engaged in some other occupation" within the meaning of paragraph 44(1)(c) of the Unemployment Insurance Act, 1971, thereby terminating their disentitlement to unemployment benefits while a labour dispute continued. The Commission gave a negative answer in all three cases but the Board of referees and the Umpire took a different view, holding that all three had been "regularly engaged in some other occupation". This is a section 28 application to review and set aside the Umpire's decision.

Held (Marceau J. dissenting herein and in case No. A-1201-84), the applications should be dismissed.

Per Pratte J.: In Abrahams, it was decided that a striking employee could be "regularly engaged" in employment within the meaning of paragraph 44(1)(c) even if that employee intended to leave the new employment at the end of the strike and return to his usual occupation. The Supreme Court of Canada agreed with the Umpire that the required characteris tic was not the duration of the hiring but the regularity of the work schedule. The Supreme Court adopted that interpretation because, firstly, the legislator did not, as it could have, specify that the duration of the employment was an essential aspect of its regularity, secondly, because if "regularly" were held to mean "permanently", it would encourage striking employees not to work, which would be inconsistent with the aim of the legislator in enacting subsection 44(1), namely to deter fraud and abuse and, thirdly, because, in cases of doubt, the Act should be interpreted in favour of the payment of benefits to those in need of them. While the ideas of continuity and of a regular work schedule necessarily assume some duration, where an employee has actually been hired to do work in accordance with a regular work schedule, as in the present case, that employee, when he begins work, is regularly engaged in an occupation within the meaning of paragraph 44(1)(c).

Per MacGuigan J.: Abrahams identified two conditions for the regularity of employment required by paragraph 44(1)(c): the first is the absence of fraud; the second requires the claimant to establish positively that he regularly engaged in some other occupation. The only regularity required of the employment depends on the nature of the work itself. Thus, seasonal employment requires only seasonal duration, short- term employment, temporary duration. The determination of whether an employment is too short to be accepted as genuine is a question of fact. In the present case, there was no question of fraud and, on the facts, applying the Abrahams rules, the respondent was regularly engaged in a new occupation.

Per Marceau J. (dissenting herein and in case No. A-1201-84): As regards the interpretation of paragraph 44(1)(c), Abrahams overruled an elaborate and long-standing line of decisions by the Umpire. Previously, most of the Umpires regarded the phrase "regularly engaged in some other occupation" in the sense of undertaking new duties in such a way as to demonstrate some degree of disinvolvement, dissocia tion or lack of interest in the outcome of the labour dispute.

There never was below, nor is there now, any dispute as to the facts themselves. The point at issue is how they should be characterized, and this clearly raises a question of law. "Firm commitment" are the key words in the entire analytical frame work resulting from the Abrahams case. The "sort of fraud", which is mentioned as being the "wrong" which Parliament wished to avoid, is that resulting from engaging in an occupa tion but without a firm and serious commitment and merely to circumvent the disentitlement rule in section 44, without the kind of real commitment a person wishing to leave the ranks of the unemployed is ready to make. This interpretation is to be preferred to that of the Board of referees and of the Umpire which, making the regularity of the work schedule and the absence of fraud the only points to be considered, deprive the

section 44 disentitlement rule of much of its meaning by making it excessively easy to circumvent. And it is also to be preferred to the interpretation of the Commission which, making it possible to systematically disqualify any employment not permanent as such, makes too little allowance for practical reality and is difficult to reconcile with the liberal spirit which the Supreme Court has indicated must govern the interpreta tion of the provisions applicable herein. Accordingly, the application herein and in case No. A-1201-84 should be allowed, and that in case No. A-1199-84 should be dismissed.

CASE JUDICIALLY CONSIDERED

FOLLOWED:

Abrahams v. Attorney Genera! of Canada, [1983] 1 S.C.R. 2, overruling [1982] 1 F.C. 839 (C.A.).

COUNSEL:

J. Levasseur and G. Leblanc for applicant.

R. Cousineau and G. Campeau for respon

dent.

SOLICITORS:

Deputy Attorney General of Canada for applicant.

Campeau, Cousineau & Ouellet, Montreal, for respondent.

The following is the English version of the reasons for judgment rendered by

PRATTE J.: Marceau J. has indicated the facts underlying these three cases and clearly explained the problem raised by them. I do not need to repeat what he has already said.

The question, then, is as to the interpretation that should be given to paragraph 44(1)(c) of the Unemployment Insurance Act, 1971 [S.C. 1970- 71-72, c. 48]' since the decision of the Supreme

' The text of subsection 44(1) of this Act is as follows:

44. (1) A claimant who has lost his employment by reason of a stoppage of work attributable to a labour dispute at the factory, workshop or other premises at which he was employed is not entitled to receive benefit until

(a) the termination of the stoppage of work,

(b) he becomes bona fide employed elsewhere in the occupa tion that he usually follows, or

Court in Abrahams v. Attorney General of Canada. 2

In Abrahams, the Supreme Court reversed a judgment of this Court and restored the decision of the Umpire that a striking employee could be "regularly engaged" in employment within the meaning of paragraph 44(1)(c) if that employee intended to leave the new employment at the end of the strike and return to his usual occupation. Wilson J., speaking for the Court, first considered what interpretation should be given to the words "regularly" in paragraph 44(1)(c). She answered this by approving as follows [at page 8] the rea sons given by the Umpire in support of his decision:

The Umpire concluded that "regularly" was used not with the connotation of duration of time but with the connotation of "continuity". It was to be contrasted with "casual" and "inter- mittent". You would not be "regularly engaged" if, for exam ple, you were simply on call to report in on such days as you were required. "Regularly", he thought, required a fixed pat tern rather than a fixed period of employment. Two days a week could be "regular" employment. A particular shift each day could be "regular" employment. The required characteris tic was not the duration of the hiring but the regularity of the work schedule. It is implicit in this interpretation that the employment need not be long-term. It may be for the duration of the strike only so long as it is "regular" during the period of its subsistence.

In my view this interpretation is to be preferred for a number of reasons.

Wilson J. went on to indicate the reasons why she preferred this interpretation to that adopted by this Court. The first of these reasons was that if the duration of the employment had been an essen tial aspect of its regularity, it would have been easy for the legislator to say so; the second was that the interpretation adopted by the Court of Appeal, according to which "regularly" meant "permanently", would encourage striking employees not to work, which would be inconsist ent with the aim of the legislator in enacting subsection 44(1). Speaking of the aim sought by Parliament, Wilson J. said the following [at pages 9 and 10]:

2 [1983] 1 S.C.R. 2.

inserting the adverbial qualifications into both these paragraphs was, in my view, to protect against abuses under the section. I think the legislature wanted benefits to be restored if the claimant had obtained bona fide employment elsewhere in his usual occupation or if he had obtained regular employment in another occupation, but it did not want "phony" claims.

The third reason given by Wilson J. in support of her interpretation was that, in cases of doubt, the provisions of the Unemployment Insurance Act, 1971 should be interpreted in favour of the payment of unemployment insurance benefits to those in need of them.

Thus, the only passages in this judgment in which Wilson J. interprets paragraph 44(1)(c) are those which I have cited, and in which, first, she summarizes and approves the decision of the Umpire, and then, speaking of the purpose of paragraph 44(1)(c), she says that "a day or two here and there with no firm commitment by either the claimant or the new employer" would not be regular employment. The first of these two pas sages seems to be the more important. Wilson J. clearly says that what matters in determining whether employment is engaged in regularly is not the duration of the employment but its continuity, or more precisely, the regularity of the work schedule imposed on the employee. It necessarily follows from this statement that employment cannot be regularly engaged in if it is employment for such a short time that it is impossible to determine its continuity. The ideas of continuity and of a regular work schedule necessarily assume some duration. How can it be determined whether an employee has a regular schedule if he has only been hired for a day?—I think it is because of this that Wilson J., at the beginning of the first pas sage cited above, observed that the word "regular" was to be contrasted not only with "intermittent" but also with "casual". Someone who has casual employment is therefore not engaged in it on a regular basis. When will casual employment be engaged in?—In my opinion, when a person is hired for so short a time that it is actually impos sible to determine the regularity of the work schedule. Someone obtaining temporary employ ment which could last for a long time may, in a sense, be a casual employee; however, I cannot think, bearing in mind the purpose of paragraph

44(1)(c), that such employment would be casual within the meaning intended by Wilson J. in her judgment. Accordingly, where an employee has actually been hired to do work in accordance with a regular work schedule, that employee when he begins work is regularly engaged in an occupation within the meaning of paragraph 44(1)(c).

It follows that, in these three cases, I cannot find any error in the decision of the Umpire that could justify intervention by the Court.

I would dismiss the application.

* * *

The following is the English version of the reasons for judgment rendered by

MARCEAU J. (dissenting): I have thought it advisable for purposes of analysis to join these three applications to review and set aside made pursuant to section 28 of the Federal Court Act [R.S.C. 1970 (2nd Supp.), c. 10]. Though the parties involved are not the same and the facts differ from one to the other, all three raise the same substantive question, and it seemed very convenient to consider this problem at the same time in relation to three sets of different facts. The three subject decisions, moreover, come from the same Umpire acting pursuant to the Unemploy ment Insurance Act, 1971 and were rendered to gether with identical reasons.

The problem presented concerns the interpreta tion of one of these well-known provisions of the Unemployment Insurance Act, 1971 dealing with the disentitlement to benefits of someone who loses his employment as the result of a stoppage of work due to a labour dispute, provisions contained in section 44, the first two subsections of which should be cited in full at the outset:

(a) the termination of the stoppage of work,

(b) he becomes bona fide employed elsewhere in the occupa tion that he usually follows, or

whichever event first occurs.

(2) Subsection (1) is not applicable if a claimant proves that

(a) he is not participating in or financing or directly interest ed in the labour dispute that caused the stoppage of work; and

(b) he does not belong to a grade or class of workers that, immediately before the commencement of the stoppage, included members who were employed at the premises at which the stoppage is taking place and are participating in, financing or directly interested in the dispute.

The rules contained in this section, which apply to all cases of a strike or lockout, manifestly have considerable practical significance and scope, and it is easy to see why each of them has already been the subject of a number of disputes which have led to many decisions by the courts. Despite this, the case at bar is to some degree new territory. On January 25, 1983 the Supreme Court in Abrahams v. Attorney General of Canada, [1983] 1 S.C.R. 2 handed down a judgment which, as regards the interpretation of paragraph (1)(c) of the section, overruled an elaborate and long-standing line of decisions by the Umpire and opened a whole new era as to its implementation. This is the first time that this Court has been called on to consider Abrahams to ensure that application of the section is consistent with that case.

Until 1983, the Umpires had always insisted on interpreting the provision contained in paragraph 44(1) (c) with some strictness. They pointed to the fundamental importance of the disentitlement mentioned in the section in the general scheme of the Act—a disentitlement which is designed to deny inactive employees who are not really unem ployed access to funds intended essentially to assist workers who, after losing their employment, cannot at once find new employment; a disentitle- ment which also ensures that the payment of ben efits will not distort the application of the market forces which should govern the solution of labour disputes. In their opinion, the limits which para graphs (b) and (c) place on the application of such a fundamental rule were to be understood in light of the idea which appeared to have been behind them, namely removal of any possible influence on conduct of the strike. Accordingly, most of them

were led to regard the phrase "regularly engaged in some other occupation" used in paragraph (c) in the sense of undertaking new duties in such a way as to demonstrate some degree of disinvolvement, dissociation or lack of interest in the outcome of the labour dispute. This was a requirement which was not expressly stated in paragraph (b), since the phrase "bona fide employed" used there meant, in terms of a special regulation, simply being engaged in actual employment for at least two consecutive weeks (see section 49 of the Unemployment Insurance Regulations [C.R.C., c. 1576]). However, paragraph (b) applied to an employee who became engaged elsewhere in the occupation that he usually followed, to carry on his own occupation with a competitor of his employer, and it may have been thought that his action was more eloquent testimony to his having parted com pany with his striking companions. No regulatory authority was conferred in connection with para graph (c) (see section 58 of the Act), and the wording could only be understood in its context, without more. It was in any case established in the leading decisions of the Umpire that a person who had never distanced himself from the outcome of the strike, had always intended to profit from it and had in no way questioned the connection between him and his employer could not claim to have "become regularly engaged" in "some other" occupation, held by him for a time during the strike.

It is this prevailing line of authority in Umpire decisions which was directly challenged in Abrahams before the Supreme Court. The facts could not have been more representative. Less than a month after the beginning of the strike which caused him to lose his employment as a driller, appellant Abrahams obtained employment in a hospital as an orderly. He worked as an orderly for seven months, three days a week and seven and a half hours a day, and then in spite of himself was obliged to leave to undergo surgery. However, Abrahams admitted when he filed his claim for benefits that he had never intended to abandon his occupation as a driller and planned to return to work once the labour dispute had been settled, thus terminating the stoppage of work which had suspended activities at the premises of his former employer; this Court [[1982] 1 F.C. 839] accord-

ingly reproved the Umpire for departing from the established authorities in finding that, despite his having a continuing interest in the dispute, the claimant could be regularly engaged in his employ ment of orderly within the meaning of paragraph (c).

In a judgment reported in [1983] 1 S.C.R. 2, the Supreme Court quashed the decision of this Court. In its view, paragraph (c) should not be interpreted by introducing the subjective element of disinvolvement or final separation from the labour dispute. The nature of the Act is such that its provisions favouring the granting of benefits are to be given a liberal interpretation, and the Umpire was right to reject the restrictive approach adopted by his brother judges. Giving the reasons for judgment of the Court, Wilson J. wrote (at page 8 of the report):

In my view this interpretation is to be preferred ....

The interpretation in the prevailing line of Umpire decisions was thus rejected once and for all. The psychological aspect of disinvolvement in the dispute had nothing to do with the case. The existence of the condition required by paragraph (c) to extinguish the disentitlement in principle under subsection 44(1) would have to be deter mined by criteria relating to the employment itself: and the chief such criterion was that of regularity of the work schedule.

All this was quite clear in light of the facts of the case, but it needed to be further elaborated in order to constitute guidelines for the future in other situations. Accordingly, Wilson J. added fur ther observations to those cited above. It is the exact meaning of these further observations, and so of the scope of the decision itself as a precedent, which now requires clarification.

The three respondents had for several years (six, six and five years respectively) been full-time employees of Sidbec-Feruni, a subsidiary of the Sidbec Dosco steel plant at Contre -Coeur, Quebec. They were obliged to stop work on July 15, 1982 by reason of a stoppage of work due to a labour dispute. All three were directly involved in the outcome of the dispute and they, at no time intended to abandon their employment, which they expected to resume as soon as the dispute was settled. However, while the work stoppage was in progress all three of them found an occupation other than their usual one. Martial Roy, a stock room clerk, was hired by his brother from Septem- ber 29 to October 8 to do work on a shelter used by the latter in the summer to sell ice cream to passers-by. It involved "doing painting, repairing the roof and making shelves". Naturally they both knew that the employment would only last for a few days, but they did not know at the outset for exactly how long. Gratien Jacques, an engine driver, was hired from October 4 to 21 as a truckman by a small soft drink distribution com pany. He worked for a total of sixty-five hours, spread unevenly over three weeks, in conditions which the employer described as follows:

[TRANSLATION] Mr. Gratien Jacques had already worked for us several years ago as a truckman. He came to us recently looking for work. We hired him temporarily on an exceptional basis to replace me and enable me to do something else. His work consisted primarily of washing bottles and some work as a truckman. Our company ordinarily hires six employees, and a bit more in the summer, but never in the fall — and so this hiring was an exceptional one. Only my husband and I are working at the present time.

Marcel Cournoyer, a blacksmith, found work as a labourer in a packing plant where he worked regu larly from July 28, 1982 to October 6, until the end of the annual harvest and the shut-down of the company's packing operations.

In each of the three cases, the question which the Commission obviously had before it was whether, under the guidelines in Abrahams, the claimant should be regarded as being "regularly engaged in some other occupation" within the meaning of paragraph 44(1)(c), thereby terminat ing the disentitlement in principle which would

have prevented him from receiving benefits so long as the labour dispute in which he was involved continued. The Commission gave a negative answer in all three cases and refused to admit the validity of the claims, but the Board of referees took a different view and the Umpire did likewise, dismissing its appeal. That is how the question came to this Court.

I should make one preliminary observation, sug gested to me by the comment of the Umpire that it was his intention not to "substitute his own assess ment of the facts for that made by the Board of referees". I do not really see how a dispute as to the assessment of facts could arise here. There never appeared to have been any problems as to the facts themselves. It was my understanding that no one was disputing, or had ever disputed, the summary I have just made of them. The point at issue is whether these facts correspond to those falling within the rule of law relied on—in other words, how they should be characterized, which of course depends on the interpretation given to the rule that is to be applied, and this clearly raises a question of law. The Commission's disagreement with the Board of referees and the Umpire was not because its findings of fact did not tally with theirs, but because its understanding of the inter pretation given to paragraph 44(1)(c) in Abrahams differed from theirs.

According to their decision, the members of the Board of referees concluded from Abrahams that a determination of whether a claimant was regularly engaged in employment within the meaning of paragraph 44(1)(c) should be based on consider ation of the work system imposed by the employ ment, for what really counts is the regularity of the work schedule while the employment contin ues. The Umpire approved this approach and added one other point: [TRANSLATION] "Further- more", he said, adopting the very wording of Wilson J., "nothing here points to 'some sort of fraud on the Commission' or 'a token engagement in another occupation'. I cannot conclude that the claimant has made a `phony' claim...." (page 100 of the Martial Roy case). Counsel for the respond ents naturally adopted this in its entirety: [TRANS- LATION] "Essentially", he submitted, "Abrahams takes as the characteristics of the new employment corresponding to section 44(1)(c) of the Act the

regularity of the work schedule and the absence of any fraud on the Commission." (paragraph 13 of Gratien Jacques submission). As in each of the cases at issue there was some degree of regularity in the work schedule of the new employment engaged in by the claimant, and as in the absence of proof of fraud, good faith must always be presumed, paragraph 44(1)(c) would according to this interpretation apply in all three cases.

The Commission and its counsel claimed to see in Abrahams points which the Board of referees and Umpire neglected. In their view, it can be seen from reading the reasons for judgment as a whole that the employment regularly engaged in, as required by paragraph 44(1)(c), could not be intermittent, temporary, seasonal or casual employment—the word "casual" being taken, as earlier in paragraph 3(2)(b), in the sense of devoid of any aspect of continuity or periodic return. It will readily be seen why this is so, they argued: though the claimant's intent regarding the time he plans to hold the employment is not important, it is still necessary that he should at the outset have some potential for or prospect of continuity. The fact that, in each of the cases for consideration here, the employment was in itself intermittent, temporary, seasonal or casual is in their view decisive: none of them could meet the require ments of paragraph 44(1)(c).

I am sorry, but I am not fully convinced by either argument. My first analysis and under standing of the observations of Wilson J. does not lead me to adopt either of the two possibilities presented. I admit that it is possible to cite pas sages from the decision which seem favorable to either one side or the other, and counsel were able to support their arguments with citations. How ever, I do not think it is possible to take certain observations of Wilson J. out of context and use them without taking into account the particular factors she had to consider, in light of the case before her and the state of the case law at the time, which she wished to discuss and reject.

The more I reread the remarks of Wilson J., the more I am struck by two words which seem to stand out more than any others: "firm commit-

ment". It now appears that these are the key words in the entire analytical framework resulting from that case. The "sort of fraud on the Commission", which is mentioned as being the "wrong" which Parliament wished to avoid, does not appear to be that resulting from a plot, deceit or untruth intended to suggest that something is what it is not. There was simply no need for special legisla tion to cover this type of fraud. Engaging in a "regular" occupation unquestionably says more than genuinely engaging in a genuine occupation. The "sort of fraud" mentioned is, it seems to me, that resulting from engaging in an occupation but without a firm and serious commitment and merely to circumvent the disentitlement rule stated in section 44, without the kind of real commitment a person wishing to leave the ranks of the unem ployed is ready to make. I think that Wilson J. had this in mind when she reviewed the possible char acteristics of the employment: its duration, its circumstances, the work schedule it involves, and whether it is permanent, temporary or casual, for these are the characteristics which will establish the seriousness of the commitment. Sometimes the evidence will be clear: a commitment intended for a limited time, one that is purely casual and apparently made for temporary purposes, or one that is intermittent, subject to a schedule depend ing on the whim of the employer, will rarely entail a serious commitment. Usually, however, it will be necessary to analyze the circumstances and the situation as a whole, whatever the particular char acteristics of the employment, for it certainly cannot be deduced merely from the fact that employment is temporary, seasonal and without a pre-established and fixed schedule that the com mitment in question is not genuine, entire and serious.

There undoubtedly will be those who will hasten to object to my interpretation of the observations of Wilson J. that it leaves the paragraph 44(1)(c) provision without any strict, specific criteria for application. However, in my view it is illusory to think that a provision of this kind, which seeks to reconcile such diverse interests in actual, practical situations, can ever be applied like a mathematical formula. The interpretations defended by the par ties at bar undoubtedly lead to a rule that is easier to apply, but at what cost! That of the Board of referees and the Umpire—which would make the

regularity of the work schedule and the absence of fraud resulting from untrue statements about the reality of the employment the only points to be considered—deprives the section 44 disentitlement rule of much of its meaning by making it exces sively easy to get around the rule. That of the Commission—which would make it possible to systematically disqualify any employment not per manent as such—makes too little allowance for practical reality and is difficult to reconcile with the open and liberal spirit which the Supreme Court has indicated must be present in interpret ing the provisions of social legislation on the distri bution of benefits, like that in question here.

Accordingly, my understanding of the rule con tained in Abrahams does not correspond to those suggested by the parties at bar. What I conclude from that case is that a striking worker will be considered to have engaged in a "regular" occupa tion within the meaning of paragraph 44(1)(c), and by so doing to have terminated the automatic disentitlement resulting from his status as a strik er, if the new employment temporarily held by him had characteristics which established a firm and serious commitment on his part. Applying this rule, I have no problem disposing of the three cases at bar. It seems to me that by agreeing to do certain manual work for his brother on a small booth to be used for the sale of ice cream, the respondent Roy did not "become regularly engaged in some other occupation" within the meaning of paragraph 44(1)(c); nor did the respondent Jacques when he accepted employment that was purely casual and a matter of conve nience, offered to him by the soft drink distribu tion company for three weeks. However, I feel that the respondent Cournoyer became "regularly engaged in some other occupation" when a few days after the strike began, in July, he took a full-time job with the packing plant, which he intended to keep right till the end of the season in October: the characteristics of the employment in the last case, despite its seasonal nature and the conditions under which it was assumed and con tinued, in my view establish the seriousness of his commitment.

For this reason, I would allow the application in case No. A-1198-84, set aside the decision of the

Umpire and refer the matter back to him to be again decided on the basis that the claimant- respondent could not, in the circumstances dis closed by the evidence, take advantage of the provisions of paragraph 44(1)(c). I would do like wise in case No. A-1201-84; but I would dismiss the application in case A-1199-84.

* * *

The following is the English version of the reasons for judgment rendered by

MACGUIGAN J.: The point at issue concerns the interpretation of the Unemployment Insurance Act, 1971 ("the Act") regarding the general disen- titlement of claimants who have lost their employ ment due to a labour dispute.

It was admitted that the claimant/respondent lost his employment by reason of a labour dispute. He was unable to resume work as a stockroom clerk when he returned from vacation on July 15, 1982 because of a labour dispute at the premises of his employer, Sidbec-Feruni. During the labour dispute he was employed by his brother's business, Royaume de la Crème Glacée, for the period from September 29 to October 8, 1982 in painting and maintenance work. At that point, the business shut down for the winter.

On October 14 the respondent applied for unem ployment insurance benefits, but the Employment and Immigration Commission ("the Commission") found he was not entitled to benefits. A Board of referees unanimously allowed his appeal on the basis of paragraph 44(1)(c) of the Act and found that the respondent had become regularly engaged in another occupation. On May 6, 1983, the Com mission appealed to an Umpire. In a judgment dated September 27, 1984 the Umpire upheld the decision of the Board of referees: hence the application at bar pursuant to section 28 of the Federal Court Act.

Paragraph 44(1)(c) of the Unemployment In surance Act, 1971 is worded as follows:

(a) the termination of the stoppage of work,

(b) he becomes bona fide employed elsewhere in the occupa tion that he usually follows, or

whichever event first occurs.

Briefly, the applicant's argument is that the Umpire erred in law in interpreting paragraph 44(1)(c) of the Act as he did, and that he arrived at an erroneous finding of fact by concluding that the facts of the case at bar require this paragraph to be applied.

This paragraph has recently been considered by the Supreme Court of Canada in Abrahams v. Attorney General of Canada, [1983] 1 S.C.R. 2, at pages 8-10, and Wilson J. said for the Court:

In my view this interpretation is to be preferred for a number of reasons. The first is the one I have already mentioned, namely, that the legislature had the matter of duration very much in mind under para. (b), sufficiently so to prescribe a two-week minimum period. Had duration been a feature of para. (c) also, it seems reasonable to assume that it would have inserted a like provision with respect to it. Its failure to do so prompts me to seek another interpretation.

I have concluded that again what the legislature was seeking to deter was some sort of fraud on the Commission. A "token" engagement in another occupation should not have the effect of restoring benefits. It has to be a "regular" job and not just a day or two here and there with no firm commitment by either the claimant or the new employer. The legislative purpose in inserting the adverbial qualifications into both these paragraphs was, in my view, to protect against abuses under the section. I think the legislature wanted benefits to be restored if the claimant had obtained bona fide employment elsewhere in his usual occupation or if he had obtained regular employment in another occupation, but it did not want "phony" claims.

Since the overall purpose of the Act is to make benefits available to the unemployed, I would favour a liberal interpre tation of the re-entitlement provisions. I think any doubt arising from the difficulties of the language should be resolved in favour of the claimant. [My emphasis.]

It might perhaps be concluded from reading this passage that the Supreme Court recognized the regularity of employment required by paragraph 44(1) (c) as having only one characteristic, namely that it must avoid fraud, abuses, "phony" claims for benefits. In my opinion it would be more correct to interpret this judgment as requiring the presence of two conditions for such regularity: the first is negative, and consists in the absence of fraud and so on; the second is positive and requires the claimant to establish positively that he regular ly engaged in some other occupation. It cannot be concluded that regular employment exists only in the absence of fraud. Regularity must also be established.

The applicant argued that this positive condition is met by the durability of the other occupation. If that is true, any temporary or seasonal employ ment would be excluded. The employment found acceptable by the Supreme Court in Abrahams was undoubtedly permanent, though the way the claimant engaged in it was limited. Thus, for example, Wilson J. excludes "just a day or two here and there with no firm commitment by either the claimant or the new employer".

However, in my opinion the scope of Abrahams cannot be limited strictly to the facts of that case. If the legislator's purpose is "to protect against abuses under ... section [44]", all short-term employments cannot be excluded. Any genuine employment must be acceptable.

It seems to me that the respondent is correct: the only regularity required of the employment depends on the nature of the work itself. In this sense, the durability required of seasonal employ ment is only seasonal duration, or of short-term employment, temporary duration. Of course, a period might be much too short to be accepted as genuine, as for example if it were "a day or two

here and there with no firm commitment by either the claimant or the new employer"; but this surely is a question of fact and not of law, which the Board of referees had to consider.

In the case at bar, as the Umpire noted, there was no question of fraud or of any "phony" application (the negative condition), and the Board of referees carefully considered the essential components for establishing the positive condition:

[TRANSLATION] It was established that the claimant was regu larly engaged in a new occupation with his new employer, and in accordance with the rules stated in the Supreme Court judgment mentioned above [Abrahams], the temporary princi ple cannot be considered in the instant case, since to begin with the hiring was for an indefinite period in any case and the claimant worked regularly for his new employer for the dura tion of his new employment.

The applicant further argued that the decision of the Board of referees was vitiated by an error of fact, but in the absence of any erroneous finding of fact that the board made in a perverse or capri cious manner or without regard for the material before it, this Court cannot intervene under section 28 of the Federal Court Act. There is evidence in the case at bar on which a finding of eligibility could be based. Even if I did not come to the same conclusion on the facts, I would not be entitled to set aside the decision for that reason.

Accordingly, I would uphold the decision of the Umpire and dismiss the applicant's application.

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