Supreme Court of Canada

Zayack v. Attorney General of Canada, 1983 CanLII 135 (SCC), [1983] 1 SCR 12

Date: 1983-01-25

Walter Zayack Appellant;

and

The Attorney General of Canada Respondent.

File No.: 16705.

1982: June 2; 1983: January 25.

Present: Dickson, Beetz, Estey, McIntyre, Chouinard, Lamer and Wilson JJ.

ON APPEAL FROM THE FEDERAL COURT OF APPEAL

Unemployment insurance—Labour dispute—Worker unemployed due to stoppage of work—Worker finding secondary employment—Whether worker “regularly engaged in some other occupation”—Meaning of the words “regularly engaged”—Unemployment Insurance Act, 1971, 1970-71-72 (Can.), c. 48, s. 44.

Abrahams v. Attorney General of Canada, 1983 SCC 17, [1983] 1 S.C.R. 2, followed.

APPEAL from a judgment of the Federal Court of Appeal setting aside the decision of an Umpire under the Unemployment Insurance Act, 1971. Appeal allowed.

David G. Leitch, for the appellant.

Alban Garon, Q.C., and Paul Plourde, for the respondent.

The judgment of the Court was delivered by

WILSON J.—This appeal was heard along with the appeal in Abrahams v. Attorney General of Canada, 1983 SCC 17, [1983] 1 S.C.R. 2, because the two appeals raised the same issue of law, namely, the proper interpretation of s. 44(1)(c) of the Unemployment Insurance Act, 1971, 1970-71-72 (Can.), c.48.

Like the appellant Abrahams this appellant was also in the employ of the International Nickel Company of Canada Limited (Inco) until September 15, 1978 when he lost his employment by reason of the same work stoppage. The appellant obtained employment at Toronto Chromium Plating Limited on September 25, 1978 and continued in full-time employment with that company as a

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plater until he was laid off on January 26, 1979. His claim for benefits was rejected on the same basis as the appellant Abrahams’ claim and his litigation followed the identical course.

There may be a significant factual distinction between the Abrahams’ appeal and this one. This appellant’s evidence before the Board of Referees was that he did not know whether he would have returned to Inco when the strike was over or not. He indicated that he might have stayed on with Toronto Chromium Plating Limited because his wife came from Toronto, he had a son living in Toronto and a daughter planning to enter university in the fall. If all had gone well, therefore, in his new employment he might have stayed on in Toronto. No finding of fact as to his intention was made at any level of adjudication. A finding in his favour would, of course, be helpful to him on this appeal. An adverse finding would put him in the same position as Abrahams.

I would allow the appellant’s appeal for the reasons given in Abrahams and award him his costs of the appeal.

Appeal allowed with costs.

Solicitor for the appellant: David G. Leitch, Sudbury.

Solicitor for the respondent: R. Tassé, Ottawa.