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A-521-86
Clarence Zwarich (Applicant)
v.
Attorney General of Canada (Respondent)
INDEXED AS: ZWARICH V. CANADA (ATTORNEY GENERAL)
Court of Appeal, Pratte, Heald and Mahoney JJ.—Vancouver, June 8; Ottawa, June 17, 1987.
Unemployment insurance — Loss of employment as result of lock-out — Application for benefits rejected on basis of s. 44(1) Unemployment Insurance Act, 1971 — Under s. 44(1), claimant not entitled to receive benefits where loss of employ ment due to work stoppage resulting from labour dispute — Umpire dismissing appeal on ground neither he nor Board of Referees having jurisdiction to decide whether s. 44(1) in violation of Charter ss. 7 and 15 — Incumbent on Board of Referees and Umpire to determine law, i.e. to construe statutes and regulations and decide whether validly enacted — Umpire erred in failing to consider applicant's Charter argument — Failure not vitiating decision since no merit in argument — S. 44(1) necessary to ensure Unemployment Insurance Commis sion's impartiality — S. 28 application against Umpire's decision dismissed — Unemployment Insurance Act, 1971, S.C. 1970-71-72, c. 48, s. 44(1) — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
Constitutional law — Charter of Rights — Life, liberty and security — Employee's application for unemployment insur ance benefits following lock-out rejected pursuant to s. 44(1) of Act — Failure by Umpire to consider employee's argument s. 44(1) contravening Charter ss. 7 and 15 — Failure not vitiating Umpire's decision to dismiss appeal — S. 44(1) neither fundamentally unjust nor unreasonable — Necessary to ensure Unemployment Insurance Commission's impartiality and to prevent use of funds to support employees in labour dispute — Unemployment Insurance Act, 1971, S.C. 1970-71- 72, c. 48, s. 44(1) — Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.), ss. 7, 15, 24(1).
CASE JUDICIALLY CONSIDERED
CONSIDERED:
Re Schewchuk and Ricard; Attorney-General of British Columbia et al; Intervenors (1986), 28 D.L.R. (4th) 429
(B.C.C.A).
COUNSEL:
Carolyn McCool for applicant.
Paul Partridge for respondent.
SOLICITORS:
Legal Services Society of British Columbia, Vancouver, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment rendered in English by
PRATTE J.: This section 28 application [Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10] is directed against a decision of an Umpire under the Unemployment Insurance Act, 1971 [S.C. 1970- 71-72, c. 48].
The applicant had lost his employment as a result of the decision of his employer to lock out his employees during the negotiation of a collective agreement. He applied for unemployment insur ance benefit. His application was rejected by the Unemployment Insurance Commission for the reason that, pursuant to subsection 44(1) of the Unemployment Insurance Act, 1971, "A claimant who has lost his employment by reason of a stop page 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". The applicant appealed from that decision to a Board of Referees. His appeal was dismissed. He then appealed to an Umpire and invoked, as his sole ground of appeal, that subsection 44(1) of the Unemployment Insurance Act, 1971 violates sec tions 7 and 15 of the Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.)] and is for that reason invalid. That ground of appeal had also been raised before the Board of Referees; they had refused to consider it. The Umpire did not pronounce on that argument either. He was of the view that neither he nor the Board of Referees were courts having the jurisdic-
tion, under subsection 24(1) of the Charter,' to determine whether subsection 44(1) of the Unem ployment Insurance Act, 1971 violates the Chart er. For that reason, he dismissed the appeal.
It is clear that neither a board of referees nor an umpire have the right to pronounce declarations as to the constitutional validity of statutes and regu lations. That is a privilege reserved to the superior courts. However, like all tribunals, an umpire and a board of referees must apply the law. They must, therefore, determine what the law is. And this implies that they must not only construe the rele vant statutes and regulations but also find whether they have been validly enacted. If they reach the conclusion that a relevant statutory provision vio lates the Charter, they must decide the case that is before them as if that provision had never been enacted. The law on this subject, as I understand it, was clearly and accurately stated by Macfar- lane J.A. of the Court of Appeal of British Columbia in Re Schewchuk and Ricard; Attor- ney-General of British Columbia et al; Intervenors: 2
It is clear that the power to make general declarations that enactments of Parliament or of the Legislature are invalid is a high constitutional power which flows from the inherent juris diction of the superior courts.
But it is equally clear that if a person is before a court upon a charge, complaint, or other proceeding properly within the jurisdiction of that court then the court is competent to decide that the law upon which the charge, complaint or proceeding is based is of no force and effect by reason of the provisions of the Canadian Charter of Rights and Freedoms, and to dismiss the charge, complaint or proceeding. The making of a declaration that the law in question is of no force and effect, in that context, is nothing more than a decision of a legal question properly before the court. It does not trench upon the exclusive right of the superior courts to grant prerogative relief, including general declarations.
The Umpire had to decide whether the decision of the Board of Referees was in accordance with the law. This he could not do, in my view, without determining whether the statutory provision that
' That provision reads as follows:
24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
2 (1986), 28 D.L.R. (4th) 429, at pp. 439-440.
had been applied by the Board was constitutionally valid.
The Umpire erred, therefore, in failing to con sider the applicant's argument that subsection 44(1) of the Unemployment Insurance Act, 1971 contravenes sections 7 and 15 of the Charter. This error, however, does not vitiate his decision because there is obviously no merit in the appli cant's Charter argument. The rule that is found in subsection 44(1) is neither fundamentally unjust nor unreasonable; on the contrary, it is necessary in order to ensure that the Unemployment Insur ance Commission will not take sides in labour complaints and that the funds of the Unemploy ment Insurance Commission will not be used to lend support to employees in a labour dispute with their employer.
I would, for these reasons, dismiss the application.
HEALD J.: I agree. MAHONEY J.: I agree.
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