A-1082-84
Yves Létourneau (Applicant)
v.
Canada Employment and Immigration Commis
sion (Respondent)
and
Marie Lefrançois, Chairperson of the Board of
Referees,
and
Jean-Marc Bourbonnais, a member of the Board
of Referees,
and
Philippe Vaillancourt, a member of the Board of
Referees, (Mis -en-cause in their capacity as
members of the Board of Referees under the
Unemployment Insurance Act),
and
Deputy Attorney General of Canada (Mis -en-
cause)
INDEXED AS: LÉTOURNEAU V. CANADA EMPLOYMENT AND
IMMIGRATION COMMISSION
Court of Appeal, Pratte, Marceau and MacGuigan
JJ.—Montreal, September 13; Ottawa, October
11, 1985.
Unemployment insurance — Work stoppage due to labour
dispute — Disentitlement provision — Whether applicable to
employee leaving employment prior to and because of foreseen
strike — Disqualification period — Unemployment Insurance
Act, 1971, S.C. 1970-71-72, c. 48, ss. 41, 43 (as am. by S.C.
1974-75-76, c. 80, s. 16), 44(1) — Federal Court Act, R.S.C.
1970 (2nd Supp.), c. 10, s. 28.
The applicant left his employment two days before the
employees of the company where he worked went on strike,
because he knew the strike was coming.
When the applicant applied for unemployment insurance
benefits, the Commission informed him that he was not entitled
to them because he had lost his employment by reason of a
strike. A six-week disqualification was imposed pursuant to
sections 41 and 43 of the Act because he was considered to
have voluntarily left his employment without just cause.
The Board of Referees dismissed his appeal from these two
decisions. This is a section 28 application to set aside the
Board's decision.
Held, the application should be allowed with respect to the
disentitlement issue but the disqualification period should be
maintained.
Per Pratte J.: For subsection 44(1) to apply, the loss of
employment must have been caused by the work stoppage itself.
That is not the case here. Since the applicant quit before the
strike began, it was always possible that the strike would not
take place, and he would not have recovered his job. The
applicant lost his employment because he foresaw that the
strike would occur.
With respect to the disqualification period, the Board could,
without committing any reviewable error, find that foreseeing a
strike is not a reason for an employee to leave his employment.
It was therefore justified in imposing a disqualification period
on the applicant.
Per Marceau J.: Nearly all Umpire decisions on the question
have held that a voluntary departure which is clearly motivated
by the fact that a strike is imminent is a loss of employment by
reason of a stoppage of work attributable to a labour dispute.
The Umpires generally referred to the "true cause" of the loss
of employment, to "the decisive factor leading to the resigna
tion" and to the intention of the legislator.
However, as the wording itself makes clear, a person who
resigns before the stoppage of work has not lost his employment
by reason of the work stoppage.
This literal interpretation is also in conformity with the spirit
of the provision. Unemployment insurance is intended for work
ers who lose their employment outside the context of a labour
dispute. A person who resigns before a strike begins has not lost
his employment as strikers do: in his case, the loss of employ
ment is individual, makes him unemployed and is final. There is
no reason for the disentitlement aimed at strikers and locked-
out workers to apply to him unless the resignation is only a
subterfuge and is simply a means of bringing on a strike, as
would be the case with mass resignations. The intent of the
legislator is clearly not circumvented when the resignation is
real, genuine and individual.
However, since the applicant left his employment without
just cause, he is subject to the six-week disqualification contem
plated in section 41.
Per MacGuigan J.: Section 44 is not concerned with a
resignation tendered by claimant prior to a stoppage of work to
avoid the loss of benefits as a striker. It is a question of
objective event, not subjective intent. While a striker retains his
ties with the employer, an employee who resigns abandons
completely his right to return to work. If this is correct, then
the case of Goulet v. Canada Employment and Immigration
Commission was wrongly decided.
The resignation herein is clearly a voluntary loss of employ
ment without just cause, subject to a six-week disqualification.
CASE JUDICIALLY CONSIDERED
REFERRED TO:
Goulet v. Canada Employment and Immigration Com
mission, [1984] 1 F.C. 653 (C.A.).
COUNSEL:
Roland Cousineau for applicant.
Carole Bureau for respondent and mis -en-
cause.
SOLICITORS:
Campeau, Cousineau & Duellet, Montreal,
for applicant.
Deputy Attorney General of Canada for
respondent and mis -en-cause.
The following is the English version of the
reasons for judgment rendered by
PRATTE J.: The applicant is asking the Court,
pursuant to section 28 of the Federal Court Act
[R.S.C. 1970 (2nd Supp.), c. 10], to set aside a
decision of a Board of Referees under the Unem
ployment Insurance Act, 1971 [S.C. 1970-71-72,
c. 48].
The applicant worked for the company Bakers
Pride Ltée until January 13, 1984. On the follow
ing Monday, January 16, he did not appear for
work and the next day, January 17, informed his
employer that he was quitting. Two days later, on
January 19, 1984, the employees of Bakers Pride
Ltée went on strike. The applicant then filed an
initial application _ for unemployment insurance
benefits. He told the Commission that he had left
his employment because he knew that the
employees of Bakers Pride Ltée would be going on
strike a few days later.
On March 29, 1984, the Commission informed
the applicant that it considered that under subsec
tion 44(1) of the Act he was not entitled to
benefits, since he had lost his employment by
reason of a stoppage of work.
On March 29, 1984, the Commission informed
the applicant that it considered he had lost his
employment by reason of a stoppage of work
attributable to a labour dispute, and that he was
therefore not entitled to benefits under subsection
44(1) of the Act.' The Commission also told him
that it considered he had voluntarily left his
employment without just cause and that, because
of this, it was imposing on him a six-week dis
qualification pursuant to sections 41 and 43 [as
am. by S.C. 1974-75-76, c. 80, s. 161. 2
The applicant appealed these two decisions to a
Board of Referees. The Board dismissed the two
appeals in the decision now being appealed by the
applicant.
The primary question in the case at bar is
whether the disentitlement imposed by subsection
44(1) applies to a claimant who, foreseeing a
strike by the group of employees to which he
belongs, has finally left his employment before it
occurs. The record clearly indicated that the appli
cant would have had to go on strike on January 19
if he had not left his employment two days earlier,
because he foresaw the strike.
Counsel for the applicant argued that subsection
44(1) did not apply to the latter because, as he had
already lost his employment at the time of the
strike on January 19, he could not lose it by reason
of the stoppage of work. Counsel for the respon-
' The wording of section 44(1) 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
(c) he has become regularly engaged in some other
occupation,
whichever event first occurs.
2 The relevant provisions of sections 41 and 43 are the
following:
41. (1) A claimant is disqualified from receiving benefits
under this Part if he lost his employment by reason of his own
misconduct or if he voluntarily left his employment without just
cause.
43. (1) Where a claimant is disqualified under section 40 or
41 from receiving benefits, the disqualification shall be for such
weeks following his waiting period, not exceeding six, for which
benefit would otherwise be payable as are determined by the
Commission.
dent argued that what must be done here is to
determine the true cause of the applicant losing his
employment, and viewing the problem in this light,
it was clear that the applicant had lost his employ
ment because of the strike, since he left work
because he knew the strike would occur.
At the hearing I indicated that I was inclined to
think that the respondent was correct. On reflec
tion I have come to a different conclusion.
Subsection 44(1) states that a claimant "who
has lost his employment by reason of a stoppage of
work attributable to a labour dispute" is not en
titled to benefits. For this provision to apply, there
fore, the loss of employment must have been
caused by the work stoppage itself. That is not the
case here. It is logically impossible for one event to
have caused another if the other event would have
occurred even if the first had not done so. As the
applicant had left his employment before the strike
began, it was still possible for the strike not to take
place, and the applicant would then not have
recovered his employment. In actual fact, there
fore, the applicant did not lose his employment "by
reason" of the strike: he actually lost it because he
foresaw that the strike would occur.
Accordingly, I consider that the Board of
Referees, erred in finding that under subsection
44(1) the applicant was not entitled to receive
benefits.
I do not think it is necessary to add anything
regarding the part of the decision impugned which
imposed a disqualification on the applicant
because he had voluntarily left his employment
without just cause. The Board could undoubtedly,
without committing one of the errors mentioned in
subsection 28 (1) of the Federal Court Act, find
that the fact of an employee foreseeing a strike is
not a reason for him to leave his employment.
Accordingly, I would allow the application, set
aside the part of the decision impugned relating to
the disentitlement of the applicant pursuant to
subsection 44(1) and refer the matter back to the
Board to be decided by it on the assumption that
the disentitlement imposed by subsection 44(1)
does not apply to an employee who, before a strike
begins, finally leaves his employment.
* * *
The following is the English version of the
reasons for judgment rendered by
MARCEAU J.: The real question raised by this
section 28 application, and the only one which
really presents a problem, can, as Pratte J.
explains, be simply and precisely stated: does sec
tion 44 of the Unemployment Insurance Act, 1971,
which states that an employee who loses his
employment by reason of a stoppage of work
attributable to a labour dispute is not entitled to
benefits, apply to someone who finally resigns and
leaves his employment just before the beginning of
a strike by the employees in the unit to which he
belongs?
The applicant, who is seeking to avoid the conse
quences of an affirmative reply, came directly to
this Court without going through the Umpire, and
one can understand why. The answer to the ques
tion raised seems clear-cut in terms of earlier
decisions by the Umpires. There are a few rare
cases in which Umpires have hesitated, citing the
particular facts of the case under consideration
(see, in particular, CUB 5498), but nearly all the
decisions have held that a voluntary departure
which is clearly motivated by the fact that a strike
is imminent cannot place an employee outside the
scope of section 44 (see, inter alia, CUB 1131,
2398, 2948, 2954, 3440, 4363, 5157 and 5498).
Reference has generally been made to the concept
of the "true cause" of the loss of employment, its
causa causans, "the decisive factor leading to the
resignation", and to the impossibility of allowing
the intention of the legislator to be so easily cir
cumvented. However, it would appear that this is
the first time—surprising as it may seem—that
this Court has been called on to decide the ques
tion, and on reflection I have to say that I also feel
that the traditional reply given to it by the
Umpires does not appear to be correct.
It is undoubtedly hard to argue that this posi
tion, traditionally taken by Umpires, is based on a
literal reading of the section. The wording itself
applies to anyone "who has lost his employment by
reason of a stoppage of work attributable to a
labour dispute": a person who resigns and volun
tarily leaves before the stoppage of work clearly
has not lost his employment by reason of the
stoppage of work. Introduction of the concepts of
"true cause" or "causa causans"—however edify-
ing these concepts may be in themselves—cannot
in any way alter what is so clear.
In my view, however, the traditional approach
not only contradicts the literal wording of the
provision, but its very spirit as well, and this is the
point I would like to emphasize. The origin of
section 44 should not be forgotten (a section so
fundamental that it appears to have its counterpart
in all other unemployment insurance legislation: in
the 1934 Convention ensuring benefits or allow
ances to the involuntarily unemployed, (1949) 40
U.N.T.S. 45, at Art. 10(2)(a); in the Convention
(No. 102) concerning minimum standards of
social security, (1955) 210 U.N.T.S. 131, at Art.
69(i); in the European Code of Social Security,
(1968) 648 U.N.T.S. 235, at Art. 68(i); and see
also as to this the publication by the International
Labour Office, Unemployment Insurance
Schemes, Geneva, ILO, 1955, at pages 131-136).
The purpose, in short, is to prevent a possible
diversion of unemployment insurance funds, which
would be particularly reprehensible: unemploy
ment insurance funds are intended for workers
who, after losing their employment, are unable to
find new employment immediately; they are not
intended for employees who are inactive because
they have directly (a strike) or indirectly (a lock
out) chosen to be so, and who in any case are not
really unemployed; and if these funds were to be
used in some way to finance striking employees,
the interplay or market forces which should con
trol the outcome of labour disputes would be
entirely overthrown. The section uses the phrase
"lost his employment", but this should not be
misunderstood: it refers to the "loss of employ
ment" of a striker (or someone who is affected by
a lock-out), a very special type of loss of employ
ment resulting from a collective "stoppage of
work", which does not create a condition of unem
ployment and is simply one stage in the resolution
of an employer-employee dispute. A person who
resigns before the strike begins has not "lost his
employment" as the striker has done: the loss of
employment is individual in his case, makes him
unemployed and is final. There is no longer any
reason for the disentitlement of the striker to apply
to him: it is only fair that he should have access to
the funds intended to aid workers who have lost
their employment and are seeking new employ-
ment, since he is in precisely this position; and
there is no reason to fear that the benefits he may
receive will influence his conduct in relation to the
labour dispute, since he is not on strike and his loss
of employment is final. A person who resigns
before the strike and so avoids the disentitlement
imposed on the striker is not circumventing the
intent of the legislator: section 44 is not a punitive
provision. He avoids the disentitlement because, by
completely altering his status, he never becomes a
striker—unless his resignation is only a subterfuge,
and is simply a means of bringing on a strike, as
would be the case with mass resignations instigat
ed by a group of employees, resignations which the
employer could not in practice accept. That would
undoubtedly be a fraud on the Act which would
immediately be penalized; but there is no question
of that here: this was a real, genuine and individu
al resignation.
By resigning on the eve of the strike the appli
cant, in my opinion, legitimately placed himself
beyond the scope of section 44. However (and I
add this to answer the secondary question raised
by this case), it is clear that his "loss of employ
ment" was essentially that contemplated by section
41, and the fact that he initiated it himself must
subject him to the six-week disqualification appli
cable to anyone who leaves his employment with
out just cause.
I would therefore dispose of this application as
suggested by Pratte J.
* * *
The following is the English version of the
reasons for judgment rendered by
MACGUIGAN J.: I concur.
The Employment and Immigration Commission
and the majority on the Board of Referees were
right in the sense that the ulterior intent (or
motive) 3 of the claimant was clearly, by resigning,
to avoid the loss of benefits as a striker.
3 For the distinction between immediate and ulterior intent
(motive), see Glanville Williams, Criminal Law: The General
Part, 2nd ed., London, Stevens & Sons Ltd., 1961, No 21,
p. 48.
However, the wording of subsection 44(1) of the
Unemployment Insurance Act ("the Act") does
not suggest such a subjective interpretation:
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,
The provision refers to loss of employment by
reason of a stoppage of work attributable to a
labour dispute, and the French wording appears to
have the same meaning as the English. It is then a
question of an objective event, not a subjective
intent, and nothing in the context suggests the
need for any other construction. Indeed, a striker
retains his ties with the employer, 4 but an
employee who resigns abandons completely his
right to return to work. In the case at bar the
claimant broke his ties with his employer by his
act of resignation, and it would be unrealistic
under the Act to characterize this act as anything
other than a voluntary loss without just cause.
Accordingly, the applicable subsection of the Act
is 41(1), not 44(1).
I would therefore dispose of this application as
suggested by Mr. Justice Pratte.
4 It is apparent that I concur in the dissenting reasons of
Marceau J. in Goulet v. Canada Employment and Immigration
Commission, [1984] 1 F.C. 653 (C.A.), that the loss of employ
ment during a labour dispute envisaged by section 44 is essen
tially a temporary loss of employment. The judgment in Goulet
will have to be reconsidered at an appropriate time.
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.