SUPREME COURT OF CANADA

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

Date: 1983-01-25

Dennis Abrahams Appellant;

and

The Attorney General of Canada Respondent.

File No.: 16698.

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 — Intention to return to former employment after strike — 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.

Following the loss of his employment by reason of a stoppage of work attributable to a labour dispute, appellant worked three days a week during six months for another employer. He left that job for medical reasons and applied for unemployment insurance benefits. He was advised by the Unemployment Insurance Commission and on appeal by the Board of Referees that he was disentitled to benefits by virtue of s. 44(1) of the Unemployment Insurance Act, 1971. An Umpire set aside the Board's decision but the Federal Court of Appeal overturned the Umpire's decision. Hence this appeal to determine the proper interpretation of s. 44(1)(c) of the Act.

Held: The appeal should be allowed.

The requirement of being "regularly engaged" in some other occupation is directed not to the duration of the hiring but to the regularity of the work schedule—the word "regularly" in s. 44(1)(c) of the Act requiring a fixed pattern rather than a fixed period of employment. Consequently, 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.

Hammond v. London County Council, [1931] Ch. 540; Lavallée, CUB 4404; Desrochers, CUB 4750, referred to.

APPEAL from a judgment of the Federal Court of Appeal (1981), 1981 4652 (FCA), 124 D.L.R. (3d) 186, 37 N.R. 557, [1982] 1 F.C. 839, setting aside the decision

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of an Umpire, CUB 6267, under the Unemployment Insurance Act, 1971. Appeal allowed.

Brian Shell and Ethan Poskanzer, for the appellant.

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

The judgment of the Court was delivered by

WILSON J.—The appellant, who had been employed as a driller by the International Nickel Company of Canada Limited (Inco) for eight years, lost his employment on September 15, 1978 by reason of a stoppage of work attributable to a labour dispute. The dispute culminated in a very long and bitter strike which did not end until June 3, 1979.

On October 9, 1978 the appellant obtained employment with the Sudbury General Hospital as an orderly. He worked three days a week, seven-and-a-half hours a day, until April 2, 1979 when he gave up the job in order to undergo surgery. During his employment with the hospital deductions for unemployment insurance were made from his pay cheque. The evidence disclosed that the appellant intended to return to Inco when the strike was over.

On April 23, 1979 the appellant applied for unemployment insurance benefits under the Unemployment Insurance Act, 1971, 1970-71-72 (Can.), c. 48, and was advised by the Unemployment Insurance Commission that he was disentitled to benefits by virtue of s. 44(1) of the Act. Section 44, in full, provides:

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 occupation that he usually follows, or

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(c) he has become regularly engaged in some other occupation,

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 interested 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.

(3) Where separate branches of work that are commonly carried on as separate businesses in separate premises are carried on in separate departments on the same premises, each department shall, for the purpose of this section, be deemed to be a separate factory or workshop.

(4) In this Act, "labour dispute" means any dispute between employers and employees, or between employees and employees, that is connected with the employment or non-employment, or the terms or conditions of employment, of any persons.

The appellant appealed the Commission's decision to the Board of Referees. A hearing was held on July 17, 1979 and his appeal was dismissed. The majority of the Board held that he was disentitled to benefits by virtue of s. 44(1) and could not bring himself within para. (b) so as to obtain re-instatement. The majority refused to accept that his occupation at Inco was that of a labourer and that he continued to be a labourer at the hospital. Accordingly, he had not become "bona fide employed elsewhere in the occupation that he usually follows" within the meaning of para. (b). There was a dissent by one of the members of the Board on the ground that although the appellant was not entitled to re-instatement under para. (b) he was entitled to re-instatement under para. (c) because he had become "regularly engaged in some other occupation" i.e. that of orderly at the hospital.

Encouraged by the dissent the appellant appealed the decision of the Board to the Umpire, Dubinsky D.J., who upheld the position taken by

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the dissenting member of the Board. In order to do so, however, he had to dissociate himself from two decisions of the Federal Court of Canada, the decision of Addy J. in Lavallée, CUB 4404, November 17, 1976 and the decision of Cattanach J. in Desrochers, CUB 4750, September 14, 1977.

In Lavallée Mr. Justice Addy stated:

One cannot reasonably conclude that the claimant "became regularly engaged in some other occupation" (section 44(1)(c) of the Act) since he intended to hold that job only for the duration of the dispute. He remained interested in the outcome of the dispute and certainly did not consider his new job regular in the same way as a claimant who decides to leave his usual occupation for a career elsewhere. The word "regularly" implies that the employee has given up his former job and not simply accepted a temporary one that he intends to leave as soon as he is able to return to his former employment.

The same thought was expressed as follows by Cattanach J. in Desrochers:

On the other hand a claimant is entitled to receive benefit when under paragraph (c) of section 44(1) he becomes regularly engaged in some other occupation. That clearly means that the claimant must have abandoned his former occupation and adopted another.

After the strike was over the claimant returned to his employment with Abitibi and there is no doubt, as the only logical inference from the evidence, that was his real intention throughout. His employment with Miller Paving Limited was seasonal and merely stop-gap to earn income, sufficient to provide the necessities and to supplement strike pay, if he got any. The claimant had no intention of abandoning his employment with Abitibi and accepting permanent employment with Miller Paving.

Dubinsky D.J. did not accept that approach to the interpretation of the phrase "regularly engaged". There was, he found, no requirement in the statute that the claimant intend to abandon his earlier employment. The only question was whether he had become regularly engaged in his new employment. In order to give meaning to this

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expression Dubinsky D.J. referred to a number of dictionary definitions of "regularly" and found that it was to be contrasted with "casually" or "intermittently". He also relied heavily on the following observation of Lord Justice Farwell in Hammond v. London County Council, [1931] Ch. 540, at pp. 544-45:

It is suggested however that the plaintiff was a servant not "regularly employed" because his employment as deputy, being liable to cease at any moment on the return to duty of the regular gate porter, was precarious and irregular. But in my judgment the expression "regularly employed" does not exclude service liable to be put an end to in that way. It is merely contrasted with "casual employment." It is of course a question of fact in each case whether a man was regularly employed or not, but in this particular case I think that the plaintiff, who was employed for the five years and paid his wages day in and day out during that period as a servant or officer of the defendants' predecessors, was "regularly employed" during that period although his service might have been suddenly determined by the return of the regular gate porter.

The learned Umpire concluded:

Where the facts pertaining to the secondary employment—as in the case at Bar—do not give rise to the slightest suggestion that the employment was to have been only of temporary duration or as Farwell, J., put it, "casual" and the claimant in question had pursued his secondary employment day in and day out for a period of time, then even if that employment came to an end shortly after it had begun, it was in my view, regular employment for the time that it endured.

The Attorney General appealed to the Federal Court of Appeal which overturned the Umpire's decision. Chief Justice Thurlow, speaking for a unanimous Court, stated that "temporary or stop-gap employment undertaken by a claimant for the mere purpose of riding out the period of a labour dispute" is not within the meaning of s. 44(1)(c) of the Act. He referred to a line of previous decisions by Umpires in which it had been consistently held that the requirement of being "regularly engaged in some other occupation" within the meaning of s. 44(1)(c) was not satisfied by the taking of temporary employment until the work stoppage ended. A

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claimant cannot, he said, be "regularly engaged" in other employment if he intends to resume the former employment when it becomes available. He must have abandoned all thought of returning to the former employment. For the Chief Justice the contrast was between being regularly engaged in a new and different occupation or simply being engaged in stopgap employment until the previous employment became available again. The earlier authorities held that the latter was not good enough and the Chief Justice did not think the Court should depart from the settled meaning given to the phrase, particularly when that meaning had not evoked any amendment by the legislature although the opportunity for amendment had presented itself.

The lines, accordingly, were clearly drawn on the appellant's appeal to this Court. The issue is a very narrow one, namely, the proper interpretation of para. (c).

It seems to me that the phrase "regularly engaged" in the context in which it appears is susceptible of more than one meaning. I do not find it particularly helpful to consider possible meanings of the word "regularly" standing by itself. The issue we have to face is: when has a person become "regularly engaged" in another occupation. It is not difficult to determine when he has become "engaged" in another occupation. This presumably happens as soon as he is hired. But what quality must the new employment have in order that he can be said to be "regularly engaged" in it? A close examination of para. (c) leads me to believe that every word counts. For example, it does not say he is disentitled until he "is" regularly engaged in another occupation. It says until he "has become" regularly engaged in another occupation. This suggests to me that it is not enough simply to be hired. He must have worked at the new occupation and he must have worked at it "regularly". What does this mean? Does it mean that the new job must have some prospect of continuity to it—for example, that he must have been "engaged" for a fixed period of time or alternatively that he must have been in the job for some period of time before he makes his claim for benefits? In this connection I note that

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s. 49 of the Regulations to the Act defines "bona fide employed" as used in para. (b) as meaning "genuinely employed in employment of not less than two weeks duration". No comparable definition of "regularly engaged" appears in the Regulations. One might ask: if a minimum of two weeks is required for "bona fide" employment, how long is required for "regular" employment if "regularly" was intended to connote length of time? The absence of any comparable provision in circumstances which disclose that the legislature had the very issue in mind under para. (b) suggests that "regularly engaged" must have a different connotation as used in para. (c).

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 "intermittent". You would not be "regularly engaged" if, for example, you were simply on call to report in on such days as you were required. "Regularly", he thought, required a fixed pattern 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 characteristic 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. 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.

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It is, I think, legitimate to ask what the object of the legislature was in enacting s. 44. Clearly involvement in a labour dispute was to terminate a complainant's entitlement to benefits. However, his entitlement would be restored if the requirements of either para. (b) or para. (e) were met. Paragraph (b) deals with the "bona fides" of his employment in the same occupation as he formerly held and para. (c) with the "regularity" of his employment in a different occupation. It may be instructive to consider the significance of the expression "bona fide" in para. (b). It seems to pose the question: has he got a real job? Or is it just a sham? Is he really trying to perpetrate a fraud on the Commission by holding himself out as qualifying under the paragraph when he has simply made an arrangement to work the odd day for another employer in order to restore his entitlement to benefits? Worse still, has there been some kind of collusion between him and his new employer for the sole purpose of defeating the statutory disentitlement? Is this the wrong the legislature was seeking to remedy in para. (b)?

One might ask what comparable wrong was the legislature seeking to remedy in para. (e). The Federal Court of Appeal says it was trying to prevent claimants from taking other occupations during a strike with the intention of returning to their original employment after the strike was over. But what is wrong with this? Why would the legislature seek to discourage it? Perhaps such persons should be commended, not penalized, for their initiative. 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"

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claims.

The authorities which militate against the interpretation of paras. (b) and (c) which I have advanced are those which suggest that the purpose of the requirements in the two paragraphs is to establish the claimant's complete dissociation from the labour dispute. If he subsequently becomes unemployed in his new employment so as to be entitled to benefits it will not be because of the work stoppage in his original employment. His relationship to it would have ceased when he became "bona fide employed" under para. (b) or "regularly engaged" under para. (c). That Gordian knot would have been cut once and for all. If this is what the legislature had in mind in enacting paras. (b) and (c) then its purpose is, of course, thwarted if the claimant is permitted to take a job elsewhere pending the termination of the work stoppage. He has not then cut himself off from the labour dispute; indeed, he is still very much interested in it. However, it seems to me that if this was the intention it would have been very easy for the legislature to have provided that the claimant be disentitled to benefits so long as his unemployment resulted from the work stoppage. It has not done so. Instead it has gone the rather cumbersome route of identifying what kind of new employment the claimant has to have obtained in order to bring his disentitlement to an end. Since the overall purpose of the Act is to make benefits available to the unemployed, I would favour a liberal interpretation of the re-entitlement provisions. I think any doubt arising from the difficulties of the language should be resolved in favour of the claimant. I agree with the appellant that employment cannot fail to be "bona fide" under para. (b) or "regular" under para. (c) just because the claimant intends to return to his original employment on the termination of the work stoppage.

It is submitted, however, on behalf of the respondent that subs. (2) of s. 44 sheds light on the legislative intention under subs. (1). Subsection (2) permits a claimant to avoid disentitlement

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under subs. (1) if he can show that neither he nor any member of his grade or class of workers are participating or financing or directly interested in the labour dispute. If this is the test for avoiding disentitlement in the first instance, should a claimant seeking re-entitlement after initial disentitlement not also have to meet it? Should he not also have to show that he is now no longer participating in or financing or directly interested in the labour dispute? Why should the qualifications for obtaining re-entitlement be any different or any less than those for avoiding disentitlement? I think these are very good questions and ones that should be put to the legislature. The fact is, however, that the legislature has spelled out the requirements for re-entitlement by reference to the nature of the new employment and not by reference to the requirements under subs. (2). Having regard to the overall purpose of the Act already referred to I do not think it is open to the Court to read into paras. (b) and (c) the requirements of subs. (2).

For all the foregoing reasons I would allow the appeal, set aside the order of the Federal Court of Appeal and re-instate the decision of the Umpire. I would give the appellant his costs of the appeal.

Appeal allowed with costs.

Solicitor for the appellant: Brian Shell, Toronto.

Solicitor for the respondent: R. Tassé, Ottawa.