A-978-88
Attorney General of Canada (Applicant)
v.
Royden Young, William Rankin, Robert
MacLean, Walker Burton and Albert Blackledge
(Respondents)
INDEXED AS: CANADA (ATTORNEY GENERAL) v. YOUNG (CA.)
Court of Appeal, Iacobucci C.J., Heald and Stone
JJ.A.—Ottawa, June 14 and July 31, 1989.
Unemployment insurance — New legislation coming into
effect April 5, 1987 providing claims for benefits filed before
January 5, 1986 will be considered — Whether, under new Act,
person retiring before January 5, 1986 but filing claim later
can have claim antedated and be reimbursed, especially where
late filing due to advice of C.E.I.C. official — Purpose of new
legislation to eliminate payment of benefits to persons in
receipt of pensions (pensions now considered income) — New
Act s. 4 establishing cut-off date and any ambiguity lifted by
comments in House of Commons establishing Government's
intention not to deviate from strict application of January 5
deadline — Regulations s. 39(a) of no assistance to respondent
as did not qualify.
Construction of statutes — Legislative history — New legis
lation: Pension Payments Act — Whether, under new Act,
person retiring before January 5, 1986 but filing claim for
unemployment benefits later can have claim antedated and be
reimbursed — Admissibility of House of Commons Debates
evidencing Parliament's intention not to deviate from strict
application of January 5, 1986 deadline — Purpose to elimi
nate payment of benefits to persons in receipt of pensions
No inconsistency between Pension Payments Act and Unem
ployment Insurance Act and Regulations.
Constitutional law — Charter of Rights — Equality rights
— Unemployment insurance — Entitlement to benefits upon
retiring — New legislation providing claims for benefits filed
before January 5, 1986 will be considered — Respondent filed
later and sought to have claim antedated — Distinction pursu
ant to scheme of Act and Regulations for antedating purposes,
between those qualified and those not qualified to benefit on
date to which antedating requested, creating two separate
groups who are not equal.
Estoppel — Unemployment Insurance Act claimant prejud
iced by reliance on interpretation of new legislation given at
retirement seminar by C.E.I.C. official — Did not make timely
application for benefits on understanding disentitled —
Tempting to fashion equitable remedy but to do so improper
intrusion into matters within Parliament's exclusive legislative
competence — Study of Second Reading Debate revealed
Government's awareness consequences for certain individuals
unfortunate.
The respondents took early retirement in November 1985. At
a retirement seminar held in October 1985, an officer of the
Canada Employment and Immigration Commission advised
those present that pursuant to Bill C-50 (Pension Payments
Act), persons taking early retirement would not qualify for
unemployment insurance since pensions would henceforth be
considered income. Having received that information, the
respondents, who had intended to apply for benefits in Decem-
ber 1985, did not file a claim at that time. The new legislation,
which came into effect in June 1987, provided, in its section 4,
that the Commission "shall consider entitlement to benefit of
any claimant who made an initial claim for benefit before
January 5, 1986". Realizing that they might be entitled to
benefits, the respondents filed their claims in June 1987 and
asked that they be antedated to December 1985. The Commis
sion refused, finding that while the new Act would have
rendered the claimants qualified before January 5, 1986 (had
they filed a claim), paragraph 39(a) of the Regulations dis
qualified them since they did not have the necessary "interrup-
tion of earnings". The Board of Referees and the Umpire took
the opposite view and allowed the claims to be antedated. The
Umpire found that paragraph 39(a) could not be interpreted to
override the imperative provisions of section 3 of the new Act
because the new Act was intended to relieve claimants of that
stricture.
This is a section 28 application to review and set aside that
decision.
Held, the application should be allowed.
This case was essentially a matter of statutory interpretation.
It is apparent from the Debates of the House of Commons, to
which the courts are entitled to look in order to ascertain the
"mischief" or "evil" that a particular enactment was designed
to correct, that the Government was cognizant of the situation
and evidenced its clear intention not to deviate from a strict
application of the January 5, 1986 deadline.
The language in paragraph 4(a) of the Act was clear and
unambiguous: the claims had to be filed prior to January 5,
1986. And there was no inconsistency with section 39 of the
Regulations. Since the respondents could not benefit from the
provisions of paragraph 4(a), it followed that paragraph 39(a)
applied. And since the respondents did not qualify thereunder,
they were not entitled to have their claims antedated.
It was tempting, in the unfortunate circumstances of this
case, to attempt to fashion an equitable remedy (invoking
estoppel based on the advice of the Commission official) but
that would constitute an unjustified and improper intrusion into
matters within the exclusive legislative competence of
Parliament.
There was no violation of the equality rights guaranteed by
section 15 of the Charter. The distinction established pursuant
to the scheme of the Act and Regulations for antedating
purposes, between those who were and those who were not
qualified to benefit on the day to which antedating was request
ed, creates two separate groups who are not equal.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.), s. 15.
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
Unemployment Insurance Act, 1971, S.C. 1970-71-72, c.
48, ss. 2(1)(n) (as am. by S.C. 1976-77, c. 54, s.
26(7)), 17(3) (as am. by S.C. 1978-79, c. 7, y. 4),
20(4), 96 (as am. by S.C. 1976-77, c. 54, s. 56).
Unemployment Insurance Benefit Entitlement Adjust
ment (Pension Payments) Act, S.C. 1987, c. 17, ss. 3, 4.
Unemployment Insurance Regulations, C.R.C., c. 1576,
ss. 37(1) (as am. by SOR/82-778, s. 1), 39 (as am. by
SOR/81-625, s. 1).
CASES JUDICIALLY CONSIDERED
APPLIED:
Reg. v. Barnet London Borough Council, Ex parte Nilish
Shah, [1983] 2 W.L.R. 16 (H.L.); Punja v. Toronto
Transit Commission (1979), 24 O.R. (2d) 812 (C.A.);
Granger v. Canada Employment and Immigration Com
mission, [1986] 3 F.C. 70 (C.A.), affd [1989] 1 S.C.R.
141; Smith, Kline & French Laboratories Ltd. v. Canada
(Attorney General), [1987] 2 F.C. 359 (C.A.); Andrews
v. Law Society of British Columbia, [1989] 1 S.C.R. 143.
DISTINGUISHED:
Harbour v. Unemployment Insurance Commission,
(1986), 64 N.R. 267 (F.C.A.); Houde (Re), CUB 15387,
Rouleau J., decision dated 26/5/88, Umpire U.I. Act, not
yet reported; Sherwood (Re), CUB 15002A, Collier J.,
decision dated 6/5/88, Umpire U.I. Act, not yet reported;
McGiven (Re), CUB 15735, McNair J., decision dated
6/9/88, Umpire U.I. Act, not yet reported.
REFERRED TO:
Thomson v. Canada, [1988] 3 F.C. 108 (C.A.).
AUTHORS CITED
Canada, House of Commons Debates, Vol. II, 2nd Sess.,
33rd Parl., 33 Eliz. II, 1986, at pages 1842, 1843; Vol
VI, at pages 6869, 6871, 6872, 6875, 6876, 6877, 6903,
6909, 6927, 6929, 6934.
Driedger, Elmer A., Construction of Statutes, 2nd ed.
Toronto: Butterworths, 1983.
COUNSEL:
John B. Edmond for applicant.
Dianne Nicholas for respondents.
SOLICITORS:
Deputy Attorney General of Canada, for
applicant.
Soloway, Wright, Houston, O'Grady, Morin,
Ottawa, for respondents.
The following are the reasons for judgment
rendered in English by
HEALD J.A.: This is a section 28 [Federal Court
Act, R.S.C. 1970 (2nd Supp.), c. 10] application
to review and set aside the decision [CUB-15738]
of Muldoon J. sitting as an Umpire pursuant to the
provisions of the Unemployment Insurance Act,
1971 [S.C. 1970-71-72, c. 48], wherein he dis
missed an appeal by the Canada Employment and
Immigration Commission (the Commission) from
the decision of a Board of Referees (the Board). In
its decision the Board reversed the decision of an
insurance officer refusing the application of the
respondent Young to have his claim for unemploy
ment insurance benefits antedated to December 2,
1985. The insurance officer had refused to ante
date the respondent's claim for benefit from June
15, 1987 (the actual date of his application), to
December 2, 1985, because in his view, the
respondent had not established that, on December
2, 1985, he was qualified for benefits pursuant to
sections 17 [as am. by S.C. 1978-79, c. 7, s. 4] and
20 of the Act and section 39 [as am. by SOR/81-
625, s. 1] of the Unemployment Insurance Regu
lations, C.R.C., c. 1576.
THE FACTS
This section 28 application was argued before us
on the basis of the facts as established by the
record in the case of the respondent Royden
Young. It was agreed by counsel that the relevant
and essential facts in the applications of the other
four respondents were similar, if not identical.
Accordingly, it was agreed that the Court should
dispose of the applications of all five respondents
on the basis of the record in the case of Royden
Young. All five appeals before Umpire Muldoon
were heard and disposed of in a similar manner.
The respondent Young was employed by the
Communications Security Establishment of the
Department of National Defence (the employer).
He took early retirement on November 29, 1985.
Upon retirement he received the sum of
$32,466.07.' He was also entitled to receive a
pension.
The employer was involved in organizing a
retirement Seminar in connection with its Early
Retirement Plan. That Seminar was held on Sep-
tember 30 and October 1, 1985. One of the speak
ers at the Seminar was Mr. Mike Richard, a
Liaison Officer with the Commission. Although
the respondent Young did not attend the Seminar,
his uncontradicted evidence was to the effect that
he had been informed by others who were in
attendance that Mr. Richard had advised the
meeting that, pursuant to an amendment to the
Unemployment Insurance Act, 1971, pensions
would now be considered income and, as a conse
quence, those attending the Seminar would not
qualify for unemployment insurance should they
take early retirement. Prior to this Seminar, Mr.
Young had fully intended to apply for unemploy
ment insurance benefits upon his retirement. After
hearing his co-workers' accounts of the Seminar,
he did not apply. In his letter of appeal to the
Commission dated September 2, 1987, (Case,
Volume 1, page 21) he said:
' This payment contained two components: severance pay in
the sum of $18,181 and Early Retirement Incentive in the sum
of $14,285.07 under the Employer's Incentive Plan.
I am appealing because it was my intention to make an
application for unemployment insurance benefits in December,
1985, but I did not due to the advice of C.E.I.C. representative
Mike Richard. If I had not received this advice I would have
proceeded with my intended action; I would have established
my claim and I would be in receipt of benefit.
When Mr. Young's appeal from the insurance
officer's disqualification was heard by the Board,
it observed that while the information given by
Mr. Richard was "correct as the law stated at that
time", his statements "certainly could create the
impression that applying for benefits was futile".
The Board went on, in its conclusion, to state
(Case, Volume 1, page 36):
It is apparent to the Board that people attending the seminar
felt they were dissuaded from making a claim.
The Board said, further, that Mr. Young and the
other respondents "did what a reasonable person
would have done at that time and did not apply for
benefits". The Board proceeded to uphold all five
appeals and reverse the decision of the insurance
officer. Umpire Muldoon subsequently denied the
Commission's appeal from the decision of the
Board.
THE ISSUE
Counsel agree that the issue on this section 28
application is whether the Umpire erred in law in
holding that the respondents were entitled to have
their claims for benefits antedated to a date prior
to January 5, 1986, by virtue of an inconsistency
which he found to exist between paragraph 39(a)
of the Unemployment Insurance Regulations and
the provisions of the Unemployment Insurance
Benefit Entitlement Adjustments Act (Pension
Payments) Act [S.C. 1987, c. 17], such that the
provisions of paragraph 39(a) should not have
been applied by the Commission to the respon
dents' requests to have their claims antedated.
THE RELEVANT LEGISLATION
I think it necessary for a proper examination of
this issue to set out hereunder the relevant legisla
tive provisions:
A. Sections 3 and 4 of the Pension Payments Act,
S.C. 1987, c.17, in force as of April 5, 1987. 2
3. Except to the extent of any inconsistency between this Act
and the Unemployment Insurance Act, 1971, the provisions of
that Act apply, with such modifications as the circumstances
require, in respect of all sums paid or payable under this Act as
though those sums were paid or payable as or on account of
benefits under that Act and the Commission has, in relation to
any matter that may arise under this Act, the same powers that
it has in relation to any such matter under that Act.
4. The Commission shall consider the entitlement to benefit
of any claimant
(a) who made an initial claim for benefit before January 5,
1986, and
(b) whose benefits were eliminated or reduced as a result of
the deduction, pursuant to sections 57 and 58 of the Regula
tions as those sections read on January 5, 1986, from the
benefits otherwise payable to the claimant of moneys paid or
payable to the claimant after January 4, 1986 on a periodic
basis or in a lump sum on account of or in lieu of a pension,
and shall calculate the additional amount of money, if any, to
which the claimant would have been entitled if the moneys had
not been deducted from the benefits otherwise payable to the
claimant and pay that additional amount of money to the
claimant.
B. Unemployment Insurance Act, 1971, as amend
ed.
2. (1) In this Act,
(n) [as am. by S.C. 1976-77, c. 54, s. 26(7)] "interruption of
earnings" means that interruption that occurs in the earnings
of an insured person when after a period of employment with
an employer the insured person has a lay-off or separation
from that employment or a reduction in his hours of work for
that employer resulting in a prescribed reduction in earnings;
17....
2 The Pension Payments Act is referred to in the Reasons of
the Umpire as Bill C-50. I will hereafter refer to that Act as
Bill C-50.
(3) An insured person ... qualifies to receive benefits uncle!
this Act if he
(a) has ... had fourteen or more weeks of insurable employ
ment in his qualifying period; and
(b) has had an interruption of earnings from employment.
20....
(4) When a claimant makes an initial claim for benefit on a
day later than the day he was first qualified to make the claim
and shows good cause for his delay, the claim may, subject to
prescribed conditions, be regarded as having been made on a
day earlier than the day on which it was actually made.
C. Unemployment Insurance Regulations,
C.R.C., c. 1576 as amended.
37. (1) [as am. by SOR/82-778, s. 1] Subject to this section,
an interruption of earnings occurs when, following a period of
employment with an employer, an insured person has a lay-off
or separation from that employment and has or will have a
period of seven or more consecutive days during which no work
is performed for that employer and in respect of which no
earnings that arise from that employment, other than earnings
described in subsection 58(12), are payable or allocated.
39. An initial claim for benefit may be regarded as having
been made on a day prior to the day on which it was actually
made if the claimant proves that
(a) [as am. by SOR/81-625, s. 1] on the prior day he
qualified, pursuant to section 17 of the Act, to receive
benefits; and
(b) throughout the whole period between that prior day and
the day he made the claim he had good cause for the delay in
making that claim.
THE UMPIRE'S DECISION
The learned Umpire, after examining sections 3
and 4 of Bill C-50 supra, held [at page 15738-6]
that "the intent and purpose" of those provisions
was to:
... ameliorate and soften the abrupt retroactivity of the previ
ously made regulations which, not unreasonably, were designed
to eliminate the payment of unemployment insurance benefits
to those who are in receipt of pension earnings.
He went on to state [at page 15738-7]:
The claimants here ... are not shown to be disentitled to the
favourable treatment which Parliament intended to confer upon
all persons in their situation. A matter of antedating their
claims, such as the Commission raises, will surely not defeat
Parliament's manifest purpose and intent.
He went on [at page 15738-8] to make the follow
ing findings:
Mr. Young and his colleagues did not file their initial claims
for benefit prior to January 5, 1986, because they were specifi
cally discouraged—if not thwarted—from so doing by an
employee or perhaps he was even an official of the Commission.
Their conduct was entirely reasonable for, in common with the
rest of humanity, the claimants were not clairvoyant.
The learned Umpire then proceeded to examine
the provisions of Bill C-50 in light of the already
existing provisions of sections 17 and 20 of the Act
and section 39 of the Regulations. After conclud
ing that section 3 of Bill C-50 establishes that the
said Bill "is the predominant statute" in the event
of any inconsistency between Bill C-50 and the
Unemployment Insurance Act, 1971, he went on to
conclude [at pages 15738-8 and 9]:
When the Commission argues, as it does, that Bill C-50
would have rendered the claimants qualified before January 5,
1986, but that the already existing provisions of sections 17 and
20 of the Act and Regulation 39 render the claimants unquali
fied, the Commission surely overlooks that Bill C-50 was
intended to modify all that. Where Bill C-50 provides as it does
in paragraph 4(a) for consideration of an initial claim for
benefit made before January 5, 1986, Bill C-50 is not thereby
either implicitly or explicitly overriding the provisions in the
Act for antedating such a claim. Regulation 39(a) simply
cannot be interpreted to override the imperative provisions of
section 3 of Bill C-50, for Bill C-50 is intended to relieve
claimants such as these from that stricture. In that light, and
for this purpose, it is Regulation 39(a) along with the provi
sions upon which it depends, which must be seen to be incon
sistent with Bill C-50. It is incorrect in law to grant the
claimants their [objectively] good cause for the delay in making
their claim pursuant to Regulation 39(b), and then, perversely
purport to obviate, obliterate or override it for the sake of
Regulation 39(a), from which Parliament's Bill C-50 aims to
provide relief.
THE SUBMISSIONS
In the view of applicant's counsel, the respon
dent's claim for benefits made on June 15, 1987,
could not be antedated to December 2, 1985. This
is so, it is said, because the respondent is unable to
prove that he was, and, in fact, he was not, quali
fied to receive benefits on December 2, 1985. He
reaches this conclusion by a reference to para
graph 39(a) of the Regulations, which requires
(through reference to paragraph 17(3)(b) of the
Act) that the claimant have an "interruption of
earnings". He then goes on to conclude that pursu
ant to the definition of "interruption of earnings"
as set out in paragraph 2(1)(n) of the Act, the
respondent, as of December 2, 1985 did not have
the necessary interruption. Accordingly, whilst
counsel conceded that the respondent had good
cause for delay as required by paragraph 39(b) of
the Regulations, he could not antedate because of
non-compliance with the provisions of paragraph
39(a) relative to an interruption of earnings.
Accordingly, in his submission, the pre Bill C-50
legislation precludes the respondent from antedat
ing his claim for benefits. Turning then to Bill
C-50, the applicant's submission is that the
respondent is not entitled to the benefit of section
4 of Bill C-50 since he is unable to meet the
condition set out in paragraph 4(a) thereof,
namely, that he had made an initial claim for
benefit before January 5, 1986.
On the other hand, counsel for the respondent
submits that paragraph 39(a) of the Regulations is
inconsistent with the provisions of Bill C-50. She
reaches this conclusion because of the Commis
sion's concession that had the respondent Young
submitted an initial claim, prior to January 5,
1986, he would have received benefits despite the
fact that he would not have qualified on that prior
date because of his inability to comply with the
provisions of paragraph 39(a) of the Regulations. 3
Counsel then argues that since the purpose of
Bill C-50 is to make benefits available to those
previously disentitled, a liberal interpretation of
the Commission's power to antedate a claim pur
suant to the Unemployment Insurance Act, 1971 is
required.
STATUTORY INTERPRETATION
'This concession is to be found at Vol. 1 of the Case, p. 22
under the heading of Commission's Observations to the
Referees. The Commission said: "It should be brought to the
Board's attention that this claimant would have benefited from
the provision of Bill C-50 ... had he filed his claim prior to
January 5, 1986. The claimant could not have established a
claim until he had an interruption of earnings; however, the
mere fact that he applied for benefits prior to 5 January 1986
would have enabled him to receive benefits without having his
pension income deducted from his benefit rate".
In the course of his submissions, counsel for the
applicant remarked that this case was essentially a
matter of statutory interpretation. I agree that the
outcome of this application will largely depend
upon the way in which the applicable sections of
the Unemployment Insurance Act, 1971 and Regu
lations thereunder and of Bill C-50 are construed.
The oft quoted excerpt from the late Dr. Driedg-
er's work on the Construction of Statutes, (2nd)
ed., at page 87 is particularly apposite to the
situation at bar:
THE MODERN PRINCIPLE
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.
In interpreting the words of a statute, Judges may
"adopt a purposive interpretation if they can find
in the statute read as a whole or in material to
which they are permitted by law to refer as aids to
interpretation an expression of Parliament's pur
pose or policy"." Recent jurisprudence has made it
clear that courts are entitled to look to the Debates
of the House of Commons in order to ascertain the
"mischief' or "evil" that a particular enactment
was designed to correct.' Accordingly I think it
instructive to examine relevant extracts from Han-
sard which will be of assistance, in my view, in
identifying the "mischief' or "evil" which Bill
C-50 was designed to address. On December 5,
1986, Honourable Benoit Bouchard, Minister of
Employment and Immigration (the Minister), in a
Statement to the House of Commons, summarized
the background to this matter. 6 He recounted that
on November 8, 1984, Finance Minister Wilson
had announced the Government's intention to treat
pension income as earnings for the purpose of
determination of unemployment insurance ben
efits. He went on to state:
" This is a quotation from Lord Scarman in the case of Reg.
v. Barnet London Borough Council, Ex parte Nilish Shah,
[1983] 2 W.L.R. 16 (H.L.), at p. 30.
Compare Thomson v. Canada, [ 1988] 3 F.C. 108 (C.A.), at
p. 133, per Stone J.A.
6 Debates, House of Commons Canada, 2nd Session, 33rd
Parliament, Vol. II, December 5, 1986, at pp. 1842 and 1843.
The important change in policy announced in November,
1984, did not adequately distinguish between those who had
retired and left the labour market, and those who had retired to
begin subsequent careers. Military and RCMP personnel who
are required to retire earlier in life best illustrate the point.
The changes announced today will ensure that this group is
treated fairly and equitably as active members of the labour
force.
[Translation]
Workers who have started subsequent careers and contribute
to unemployment insurance and subsequently become unem
ployed will be entitled to full unemployment insurance benefits
based on their post retirement employment income, regardless
of their previous pension income.
Mr. Speaker, there is one additional issue which I would like
to deal with today. Some retirees who were receiving benefits
on January 5, 1986 when the former policy came into effect
were disqualified and because they had left the labour market
will not be able to requalify.
Notwithstanding the fact that Ministers made repeated
announcements of the policy change in the November 1984
Economic Statement and subsequently, some of these people
allege that they made their retirement decisions on the basis of
inaccurate information from federal government sources.
[English]
To deal with this situation, I am today directing the commis
sion to re-examine any such case and restore benefits, if the
allegation is proven. The commission's normal adjudication
process will apply. This is entirely consistent with the Govern
ment's action in similar cases in other benefit programs.
Then on June 9, 1987, the Minister moved Second
Reading of Bill C-50 7 and stated:
Hon. Members will recall that my December 5, 1986 state
ment had to do with the Government's conclusion that some
people claimed they had been given inaccurate information
about the implementation of the January 5, 1986 pension
income provisions. To ensure fairness in the application of the
January 5 measures, this Bill makes a clear distinction with
respect to pension income handling before or after the
January 5 legislative provisions.
The rule is very simple: the eligibility of all those who applied
for unemployment insurance benefits before January 5, 1986—
those who filed their application when the old regulations were
in effect—will be determined on the basis of the old regula-
Debates, House of Commons Canada, 2nd Session, 33rd
Parliament, Vol. VI, June 9, 1987, at p. 6869.
tions. In each case the workers involved will receive from the
UIC a refund equal to the deductions made with respect to
their pension income.
The Minister was followed in the Second Reading
Debate by the Honourable Warren Allmand, a
member of the official Opposition who opposed
Second Reading and stated (Commons Debates,
June 9, 1987, at page 6871):
The Government finally decided that it would reimburse those
who had made their application for unemployment insurance
before January 5, 1986.
In the last few days when the public knew that this Bill was
coming forward to-day I received many calls from individuals
who had been pre-retired before January 5, 1986. When they
went to the Unemployment Insurance Commission to make
their claims they were discouraged from doing so. The officials
said there was no use in making a claim because they would not
get anything anyway. They delayed making their claims until
after January 5 although they could have done so before
because they did not have any expectation of what the Govern
ment might do.
Mr. Allmand then proposed an amendment to the
Bill which would have had the effect of treating all
pre-retired pensioners in the same way. He stated: 8
... we cannot accept a Bill which discriminates against a group
of pre-retired pensioners in this way.
Subsequently in the Debate, Mrs. Mary Collins, a
Government member spoke in support of Bill C-50
as introduced. She stated: (Commons Debates,
June 9, 1987, at pages 6875 and 6876):
Those who applied prior to January 5, 1986 come under the
old rules and those who apply after that date will come under
the new rules.
I just want to make very clear that those who applied for
unemployment insurance prior to January, 1986 under the old
rules will have their entitlement to benefits determined under
the old rules. Equally and in a straightforward manner those
who apply for benefits after January 5, 1986 will be governed
by the new provisions.
In response to Mrs. Collins' remarks, Mr. Allmand
remarked (Commons Debates, June 9, 1987, at
page 6877):
s Debates, House of Commons Canada, 2nd Session, 33rd
Parliament, Vol. VI, June 9, 1987 at p. 6872.
The distinction in the Bill has nothing to do with whether one
wants to work or does not want to work. The distinction is
whether one happens to apply after January 5 or before
January 5.
Does the Hon. Member support a system where some people
who retired before January 5 but through illness, by misinfor
mation, travel or whatever were not able to make their applica
tion until after January 5, are subject to the cuts, but a
colleague down the street who retired at the same time but got
his application in before January 5 is fully reimbursed? That is
what is in the Bill. Does the Hon. Member support that?
Mrs. Collins' answer was to the effect that she
understood there to be some flexibility and discre
tion to deal with particular situations where for
valid reasons, a person was unable to meet the
deadline date. The comment by Mr. Robinson, an
Opposition member, was to the effect that there
was "no discretion" in the Bill. Further on in the
Debate, Mr. Andre Plourde, a Government
member put the matter very succinctly (Commons
Debates, June 9, 1987, at page 6903):
A retired worker whose unemployment insurance benefits were
interrupted or reduced because of his pension income and who
applied for benefits before January 5, 1986, will be reimbursed
for the equivalent of the amounts previously withheld from his
benefits. That is clear. [Emphasis added.]
Then, another Government member, Mr. Black-
burn, said (Commons Debates, June 9, 1987, at
page 6909):
... I would also like to remind opposition Members that in the
case of people who may for instance have retired early before
January 5, 1986 and may not have had the time to apply for
unemployment insurance benefits, of course our Government
has to draw the line somewhere.
When the House came to vote on Mr. Allmand's
amendment it was defeated. When the Second
Reading Debate was resumed, Mr. Tardif, an
Opposition member addressed himself specifically
to the provisions of paragraph 4(a) of Bill C-50
and then commented as follows (Commons
Debates, June 9, 1987, at page 6927):
Since they could not, because of a combination of circum
stances, file their claim before January 5, the Government says:
No, a line must be drawn, and they use as an example the fact
that at age 65 one is entitled to old age security pension, but
not at age 64, 11 months and 20 days.
Thereafter Mr. Michel Champagne, Parliamen
tary Secretary to the Minister of Agriculture
stated (Commons Debates, June 9, 1987, at
page 6929):
Social justice calls for a long term and not a short term
perspective. Social policy and social justice, Madam Speaker,
must be considered in a global approach, in the context of
decisions to be made for the middle and the long term. In other
words, difficult decisions had to be made, but no outstanding
politician in Canada or in the provinces even made his mark
without some unpleasant courageous actions on the short term,
decisions which time has proven to be the most judicious of all.
That is what our Minister of Employment and Immigration
(Mr. Bouchard) has done. That is precisely the decision he has
made.
We have seen that on January 5, 1986, people who had made
applications before that date ... There had been a communica
tion problem and in my opinion, the message had not been clear
enough. The Minister said: "It is true. We are going to solve
the problem." And we have done it. We are solving it today
because we are discussing the matter.
Ninety-five percent of all those cases will be settled, people
will have no more problems, they will be able to receive their
unemployment insurance benefits.
Near the end of the Second Reading Debate, the
Minister restated the Government's position. He
said (Commons Debates, June 9, 1987, at
page 6934):
The principles have not changed at all. In November 1984, the
Minister of Finance (Mr. Wilson) announced that those who
received income from pensions, which is considered income
from employment could not at the same time receive unemploy
ment insurance benefits, which are also considered income from
employment.
In other words, the established principle has remained the
same. However, for reasons of understanding and as it seemed
that, for all kinds of reasons, some people might sincerely and
honestly not have understood our message before January 5,
1986, we decided to make this measure retroactive to January
5, 1986, we decided to make this measure retroactive to Janu-
ary 5, 1986 and consider that these people had made in good
faith a claim which should be honoured.
It seems evident, from the portions of the
Debate quoted supra, that the problem encoun
tered by all five respondents herein was clearly
raised in that Debate. The attention of the Govern
ment was squarely drawn to the fact that some
individuals who retired prior to January 5, 1986,
and who, for various reasons, did not file their
application for benefits until after January 5,
could not be reimbursed pursuant to Bill C-50. It
is apparent, from the Debate, that the Government
was cognizant of the situation, and, by its defeat of
the opposition amendment, evidenced its clear
intention not to deviate from a strict application of
the January 5, 1986 deadline. There were some
comments by Mrs. Mary Collins, a Government
member, which suggested that perhaps the Unem
ployment Insurance Commission would have the
flexibility to deal with particular situations such as
those present in the applications at bar. However, I
cannot find either in Bill C-50, or the Unemploy
ment Insurance Act, 1971 and Regulations there-
under, any provision entitling the Commission to
deviate in any way from the deadline embodied in
paragraph 4(a) of Bill C-50.
In my view, the language employed by Parlia
ment in paragraph 4(a) is clear and unambiguous.
However, if there be any ambiguity in the lan
guage of that paragraph, then such ambiguity
disappears when the object and purpose of Bill
C-59 is examined in the light of the very detailed
discussions on Second Reading as set out supra.
Given that the Government had been alerted to the
unfortunate consequences for some individuals, it
would have been a simple matter to amend the
legislation to provide that all persons who had
retired before January 5, 1986 would be eligible
for reimbursement rather than making reimburse
ment contingent on the date of filing of the
application.
For these reasons, then, I must respectfully disa
gree with the conclusion of the learned Umpire
that, by the passage of Bill C-50, Parliament
intended to confer favourable treatment upon all
individuals retiring before January 5, 1986. The
Commons Debates supra, make it clear, in my
view, that Bill C-50 addresses the problem encoun
tered by the majority, but not all of the pre—Janu-
ary 5, 1986 retirees. Given the plain words used by
Parliament in Bill C-50, when supported by the
evidence of the object and purpose thereof, supra,
I agree with counsel for the applicant that the
"ameliorative intent" of the Act goes "only so far
as the plain words of the Act will allow and no
further". 9 In this context, I find myself in agree
ment with the views expressed by Krever J.A. in
the case of Punja v. Toronto Transit
Commission 10 where he said:
I regret, however, that I find insufficient scope in the Legisla
ture's choice of language for judicial innovation and remedy for
legislative discrimination. Where there is no ambiguity in the
statutory language and the legislative meaning is not obscure,
the Courts must yield to the sovereignty of the Legislature.
Counsel for the respondents placed some reli
ance on this Court's judgment in the case of
Harbour v. Unemployment Insurance Commis
sion, ((1986), 64 N.R. 267 (F.C.A.)). In Harbour,
the claimant failed to make some of his weekly
claims for benefits within the three week period set
out in section 34 of the Regulations because the
Commission had not supplied him with the
required reporting cards. The Court held that sub
section 55(4) [as am. by S.C. 1974-75-76, c. 80, s.
19] of the Act did not require disallowance of a
claim filed late through the fault of the Commis
sion itself. Subsection 55(4) states:
55....
(4) A claim for benefit for a week of unemployment in a
benefit period shall be made within such time as is prescribed.
Marceau J.A., speaking for the Court, proceeded
to interpret this provision after looking at the
whole of the Act and considering the context in
which subsection (4) was inserted. His conclusion
was:
... that Parliament could not have intended that a failure to
comply with the requirement of section 55(4) be automatically
fatal to a claimant and result in an immediate loss of his right.
[At page 273.]
See Applicant's Memorandum of Fact and Law—
paragraph 28.
10 (1979), 24 O.R. (2d) 812 (C.A.), at p. 814.
He based this conclusion on subsection 55(1) of
the Act (which clearly contemplates a later and
untimely compliance with the requirements of the
section) and on section 20 supra which makes
provision for the back-dating of a claim. I have no
difficulty whatsoever in accepting and agreeing
with the rationale of that decision. However, I do
not think that the Harbour case, assists the
respondents. The Court, in Harbour, drew a con
clusion as to the "interpretation of a provision as
to its intended effect" and to support that conclu
sion, examined the context of other provisions of
the legislation. In my view, that same approach
does not change the result which I propose in the
instant case. Subsection 20(4) of the Act permits
ante-dating, as pointed out by Marceau J.A. How
ever, that privilege is subject "to prescribed condi
tions". One of the prescribed conditions as set out
in Regulation 39(a) requires an "interruption of
earnings". For the reasons given earlier herein, the
respondents cannot satisfy that condition. Accord
ingly, I do not think the Harbour decision has any
relevance in the circumstances at bar.
Respondents' counsel also submitted that the
decision a quo was consistent with several deci
sions of other Umpires whose decisions were made
after Bill C-50 became law." I have examined
those decisions and have not found them persua
sive. Some of the comments relied upon are purely
dicta. Additionally the factual situations are so
different as to be clearly distinguishable from the
case at bar. Accordingly, the Umpires' decisions
relied upon do not support the respondents' sub
missions, in my view.
I am also unable to agree with the Umpire's
view that there is some inconsistency between the
provisions of Bill C-50 and the provisions of the
Unemployment Insurance Act, 1971 and Regula-
" See for example—Houde (Re), CUB 15387, May 26, 1988
per Rouleau J., not yet reported; Sherwood (Re), CUB
15002A—May 6, 1988 per Collier J., not yet reported; McGiven
(Re), CUB 15735, September 6, 1988 per McNair J., not yet
reported.
tions. In my view of the matter, since these
respondents are not entitled to benefit by the
provisions of paragraph 4(a) of Bill C-50, it fol
lows that the applicable provisions of the Unem
ployment Insurance Act, 1971 and Regulations
apply to them and as a result and for the reasons
given by the insurance officer, they were not en
titled to antedate their claims for benefits. In these
circumstances, no question of inconsistency arises
and, therefore, the paramountcy or predominant
nature of section 3 of Bill C-50 does not come into
play at all.
Counsel for the respondents made an alternative
argument based on the dissenting judgment of
Hugessen J.A. in the case of Granger v. Canada
Employment and Immigration Commission. 12 In
that case, Pratte J.A. wrote the reasons for the
majority of the Court and at page 77 of the report
he said:
The applicant's real complaint against the Umpire is not that
he infringed the rules of natural justice, simply that he did not
apply equity rather than the law. ... The applicant's argument
therefore comes down to this: the Umpire erred because, so as
to avoid causing injury to the applicant, he should have refused
to apply the law.
A judge is bound by the law. He cannot refuse to apply it even
on grounds of equity.
With every deference to those who hold a different
view, I accept and adopt the views of Pratte J.A.
as set out supra. It is somewhat tempting, in the
unfortunate circumstances of this case, to attempt
to fashion an equitable remedy which would ben
efit these respondents. However, as noted by Mr.
Justice Pratte, this would be an unjustified and
improper intrusion into matters which are within
the exclusive legislative competence of the Parlia
ment of Canada. The enactment of Bill C-50 does
afford unemployment insurance benefits to a sig
nificant portion of those retirees who had been
disqualified from receiving unemployment insur
ance benefits because they were in receipt of pen
sion earnings. However, by the use of plain and
unambiguous language, a certain segment of the
retirees was excluded from those benefits, i.e.—
12 [ 1986] 3 F.C. 70 (C.A.)—Appeal to the Supreme Court of
Canada, dismissed—see [1989] 1 S.C.R. 141.
those who did not make an initial claim for benefit
before January 5, 1986. This was a decision which
Parliament was entitled to make and which it did
make in clear and unambiguous terms.
In his reasons, Umpire Muldoon stated that he
was prepared to adopt and ratify the filed observa
tions of the respondent to the Umpire (Case,
Volume 1, pages 78-80 inclusive) except for "their
venture into the deep waters of estoppel" (para-
graph 4 on page 2 of the arguments) and "with a
word of caution concerning the Charter argu
ment". In so far as the estoppel submissions are
concerned, counsel for the respondents advanced
this argument in the alternative and, as noted
supra, refcrrcd to the disscnting reasons of
Hugessen J.A. in the Granger case. For the rea
sons given supra, I rely on the reasoning of the
majority of the Court in Granger, and accordingly,
I am not prepared to accept the "estoppel" argu
ment or "the abuse of power" argument which was
advanced by the respondent.
In so far as the Charter [Canadian Charter of
Rights and Freedoms, being Part I of the Consti
tution Act, 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.)] argument is concerned, the
reference in the respondent's observations to the
Umpire was to section 15 of the Charter. Counsel
for the respondent did not advance any Charter
arguments either in her Memorandum of Fact and
Law or in her oral submissions to us. However, the
respondent's submissions to the Umpire were to
the effect that the equality rights guaranteed to
him by section 15 of the Charter were denied to
him on these facts since he (along with the other
four respondents) was able to show good cause for
the delay in applying for benefit even though he
was not qualified for benefits on the prior day. I do
not find any merit in this submission. In my view,
the distinction established pursuant to the scheme
of the Act and Regulations for antedating pur
poses, between those who were and those who were
not qualified to benefit on the day to which
antedating was requested, creates two separate
groups who are not equal. On this basis, there can
be no breach of section 15. In support of this
conclusion, I rely on the following discussion of
this issue by Hugessen J.A. in Smith, Kline &
French Laboratories Ltd. v. Canada (Attorney
General): 13
The rights which it [section 15] guarantees are not based on
any concept of strict, numerical equality amongst all human
beings. If they were, virtually all legislation, whose function it
is, after all, to define, distinguish and make categories, would
be in prima facie breach of section 15 and would require
justification under section 1. This would be to turn the excep
tion into the rule. Since courts would be obliged to look for and
find section 1 justification for most legislation, the alternative
being anarchy, there is a real risk of paradox: the broader the
reach given to section 15 the more likely it is that it will be
deprived of any real content.
The answer, in my view, is that the text of the section itself
contains its own limitations. It only prescribes discrimination
amongst the members of categories which are themselves simi
lar. Thus the issue, for each case, will be to know which
categories are permissible in determining similarity of situation
and which are not. It is only in those cases where the categories
themselves are not permissible, where equals are not treated
equally, that there will be a breach of equality rights.
As far as the text of section 15 itself is concerned, one may
look to whether or not there is "discrimination", in the pejora
tive sense of that word, and as to whether the categories are
based upon the grounds enumerated or grounds analogous to
them. The inquiry, in effect, concentrates upon the personal
characteristics of those who claim to have been unequally
treated. Questions of stereotyping, of historical disadvantage -
ment, in a word, of prejudice, are the focus and there may even
be a recognition that for some people equality has a different
meaning than for others.
CONCLUSION
For all of the foregoing reasons, my conclusion
is that the learned Umpire erred in law in deciding
that the respondents were entitled to have their
claims for unemployment insurance benefits
antedated to a date prior to January 5, 1986. I
would, therefore, allow the section 28 application
and set aside the decision of the Umpire dated
'3 [1987] 2 F.C. 359 (C.A.), at pp. 367-369. These excerpts
are quoted with approval by McIntyre J. in Andrews v. Law
Society of British Columbia, [1989] 1 S.C.R. 143, at p. 180.
September 8, 1988. As well, the matter should be
referred back to an Umpire for disposition pursu
ant to the powers conferred upon an Umpire under
section 96 [as am. by S.C. 1976-77, c. 54, s. 56] of
the Unemployment Insurance Act, 1971, on the
basis that none of the respondents were entitled to
be deemed to have made an initial claim for
unemployment insurance benefits before
January 5, 1986.
IAcosucci C.J.: I agree.
STONE J.A.: 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.