Canada (Canada Employment and Immigration commission) v. Gagnon, 1988 CanLII 48 (SCC), [1988] 2 SCR 29

Serge Gagnon Appellant

v.

Canada Employment and Immigration Commission Respondent

Indexed as: Canada (Canada Employment and Immigration Commission) v. Gagnon

File No.: 19529.

1988: March 4; 1988: July 28.

Present: Beetz, Estey*, McIntyre, Wilson, Le Dain, La Forest and L'Heureux‑Dubé JJ.

ON APPEAL FROM THE FEDERAL COURT OF APPEAL

Unemployment insurance ‑‑ Extension of benefit period ‑‑ Payment to injured claimant of temporary total workmen's compensation payments for work‑related injury during extended benefit period ‑‑ Suspension of unemployment insurance benefits ‑‑ Having recovered and being available for work, whether claimant entitled to an extension of his benefit period under s. 20(7)(b) notwithstanding s. 36 of the Unemployment Insurance Act, 1971.

Appellant received unemployment insurance benefits pursuant to the provisions of the Unemployment Insurance Act, 1971 for thirty‑four weeks, namely until January 22, 1983. On this date he was in a regionally extended benefit period (s. 35). Hospitalized two days later for surgery rendered necessary by a work‑related injury sustained in 1981, appellant became eligible for "total workmen's compensation payments for an...injury" and, pursuant to s. 29(3) of the Act, his unemployment insurance benefits were suspended. Having recovered but being unable to find work, appellant applied for an extension of his unemployment insurance benefit period, under s. 20(7)(b) of the Act. The benefits claimed cover the fifteen‑week period equivalent to the time he was incapacitated, during which he received benefits from the C.S.S.T., that is within the period of extended benefits to which he would have been entitled if he had not been hospitalized. His application was dismissed on the ground that he was beyond his initial benefit period and that, in view of s. 36 of the Act, a claimant is not "entitled to be paid extended benefit for any working day for which he fails to prove that he was capable of and available for work". The Board of Referees upheld this decision. On appeal, an umpire allowed appellant's claim. The Federal Court of Appeal set aside this decision, however, and restored the decision of the Board of Referees. This appeal is to determine whether a claimant who was disentitled to extended benefit for a certain time by reason of s. 29(3) of the Act is entitled to an extension of his benefit period if during that time he was also disentitled to extended benefit by reason of s. 36 of the Act.

Held: The appeal should be allowed.

Per Beetz, McIntyre, Le Dain and La Forest JJ.: Section 20(7) of the Unemployment Insurance Act, 1971 is intended to apply to an extension of a benefit period in respect of extended benefit. This is indicated by the words "not entitled to initial or extended benefit" in s. 20(7) and by ss. 34(3) and 35(4), which expressly provide that s. 20(7) shall apply to a period of extended benefit. The conclusion to be drawn from these provisions is that the disentitlement provided by s. 29(3) for being in receipt of temporary total workmen's compensation payments is intended to apply to both initial and extended benefit. The interpretation given to s. 20(7) by the Federal Court of Appeal is contrary to this intention because it would make s. 20(7)(b) virtually inapplicable to a case of extended benefit since a claimant who is in receipt of temporary total workmen's compensation payments will be generally, if not always, one who is not capable of and available for work within the meaning of s. 36. For reasons best known to it, the legislature must be held to have intended that this category of claimant should be entitled to an extension of a period of extended benefit despite the fact that he would also have been disentitled to extended benefit by reason of s. 36. This conclusion is reinforced by the category of claimant referred to in s. 20(7)(a)‑‑one who is confined in any gaol, penitentiary or other similar institution‑‑who will also clearly be disentitled to extended benefit by reason of s. 36.

Per Wilson and L'Heureux‑Dubé JJ.: Under section 20(7)(b) of the Unemployment Insurance Act, 1971, the victim of a work‑related injury who is temporarily receiving total workmen's compensation for an injury‑‑and who is thus unable to work‑‑once he has recovered and is available for work, is eligible for an extension of his unemployment benefit period, even when that disability occurs during his extended benefit period. This interpretation is in keeping with the wording of s. 20(7)(b) and is consistent with the provisions of the Act as a whole, in particular ss. 25(b), 29(3), 34, 35 and 36.

It is possible to interpret the provisions of s. 36 without adding to the text of s. 20(7)(b) or limiting its scope. Under section 25(b) of the Act, a claimant who is ill or injured will be entitled to initial benefits even though during this period he is incapable of working and not available for work, except someone who "receives temporary total workmen's compensation payments for an...injury" (s. 29(3)). As to extended benefits, the ill or injured claimant, because of his temporary total disability, is incapable of and not available for work and cannot receive extended benefits during his disability (s. 36) which, conversely, is not the case for initial benefits (s. 25(b)). When he is again available within the meaning of s. 36, however, the claimant will be entitled to the rest of the extended benefits to which he would otherwise have been entitled under ss. 34 and 35 and, under s. 20(7)(b) of the Act, to an extension of his benefit period for the aggregate of any weeks during which he was in receipt of workmen's compensation payments for his work‑related injury, provided such extension does not exceed the maximum of one hundred and four weeks permitted by the Act (s. 20(9)). In addition to being consistent with ss. 20(7)(b), 34 and 35 of the Act, this interpretation corresponds to the purpose of the Act, which is to compensate a worker who is involuntarily unemployed but not to penalize one who is temporarily and involuntarily unavailable.

Cases Cited

By L'Heureux‑Dubé J.

Referred to: Canadian Pacific Ltd. v. Attorney General of Canada, 1986 CanLII 69 (SCC), [1986] 1 S.C.R. 678; Hills v. Canada (Attorney General), 1988 CanLII 67 (SCC), [1988] 1 S.C.R. 513; Abrahams v. Attorney General of Canada, 1983 CanLII 17 (SCC), [1983] 1 S.C.R. 2; Lebbad, CUB‑8366; Guglielmi, CUB‑8372; Jove v. Umpire Constituted under Section 92 of the Unemployment Insurance Act, 1971, F.C.A., No. A‑1071‑84, June 19, 1985, rev'd 1988 CanLII 49 (SCC), [1988] 2 S.C.R. 53.

Statutes and Regulations Cited

Act to amend the Unemployment Insurance Act, 1971, S.C. 1974‑75‑76, c. 80, s. 13.

Act to amend the Unemployment Insurance Act, 1971, S.C. 1988, c. 8, s. 4.

Act to amend the Unemployment Insurance Act, 1971 (No. 3), S.C. 1980‑81‑82‑83, c. 150, ss. 6, 11.

Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.

Unemployment Insurance Act, 1971, S.C. 1970‑71‑72, c. 48 [am. 1974‑75‑76, c. 80; 1976‑77, c. 54; 1978‑79, c. 7], ss. 3, 16(1)(d), (e), 17(3)(a), (b), 18, 20(2), (7)(a), (b), (9), 21, 22(2), (3), 25, 27, 29(1), (3), 30, 31, 34, 35, 36, 37, 38, 39, 40, 41, 43, 44, 45, 95, 146.

Unemployment Insurance Regulations, C.R.C. 1978, c. 1576, ss. 16, 42(2), 43(3).

APPEAL from a judgment of the Federal Court of Appeal¹, allowing respondent's application under s. 28 of the Federal Court Act and setting aside the decision of an umpire rendered under the Unemployment Insurance Act, 1971, CUB‑9264. Appeal allowed.

Serge Francoeur, for the appellant.

Gaspard Côté, Q.C., and Carole Bureau, for the respondent.

The judgment of Beetz, McIntyre, Le Dain and La Forest JJ. was delivered by

1. Le Dain J.‑‑My colleague Justice L'Heureux‑Dubé has set out the factual background of the issue in the appeal and the applicable terms and provisions of the Unemployment Insurance Act, 1971, S.C. 1970‑71‑72, c. 48. I agree with her that the appeal should be allowed and the appellant held to be entitled to an extension of his benefit period pursuant to s. 20(7) of the Act, but I find it necessary to state my own understanding of the issue and the reasons for that conclusion.

2. The issue is whether a claimant who was disentitled to extended benefit for a certain time by reason of s. 29(3) of the Act, because he was in receipt during that time of temporary total workmen's compensation payments, is entitled to an extension of his benefit period if during that time he was also disentitled to extended benefit by reason of s. 36 of the Act, because he was not capable of and available for work, as required by that provision. The issue involves the construction of the words "he was not entitled to initial or extended benefit for the reason that he was...in receipt of temporary total workmen's compensation payments for an illness or injury" in s. 20(7), and in particular, whether, as was held by the Federal Court of Appeal, the words "for the reason" should be construed as meaning for the sole reason.

3. I should say at the outset that I find it quite unhelpful, and indeed impossible, to attempt to determine this issue on the basis of what may be perceived or supposed to be the underlying policy considerations respecting the different categories of entitlement, disentitlement and extension of benefit. I find the Act quite inscrutable at many places in this regard. I do not think that any general conclusions may be drawn with respect to the issue in the appeal from the different treatment accorded by the Act to the various categories of claimant outside of s. 20(7). It is probably necessary, however, to acknowledge one anomaly that arises from the interpretation of s. 20(7) that is urged by the appellant because it appears to have been a consideration with those who have taken the contrary view. Under the interpretation of s. 20(7) advanced by the appellant two claimants who are disentitled by s. 36 to extended benefits because they suffer an illness or injury that renders them incapable of and unavailable for work are treated differently in respect of the right to an extension of their benefit period, depending on whether or not during the time they were so disentitled they were also in receipt of temporary total workmen's compensation payments. It may be acknowledged that it is difficult to see the policy rationale for this anomaly but it is, in my respectful opinion, not one that can or should be corrected by what amounts to a judicial amendment of s. 20(7).

4. It is clear that s. 20(7) is intended to apply to an extension of a benefit period in respect of extended benefit. This is indicated by the words "not entitled to initial or extended benefit" in s. 20(7) and by ss. 34(3) and 35(4), which expressly provide that s. 20(7) shall apply to a period of extended benefit. The conclusion to be drawn from these provisions is that the disentitlement provided by s. 29(3) for being in receipt of temporary total workmen's compensation payments is intended to apply to both initial and extended benefit. The interpretation given to s. 20(7) by the Federal Court of Appeal is contrary to this intention because it would make s. 20(7)(b) virtually inapplicable to a case of extended benefit since a claimant who is in receipt of temporary total workmen's compensation payments will be generally, if not always, one who is not capable of and available for work within the meaning of s. 36. For reasons best known to it, I think the legislature must be held to have intended that this category of claimant should be entitled to an extension of a period of extended benefit despite the fact that he would also have been disentitled to extended benefit by reason of s. 36. This conclusion is reinforced in my opinion by the category of claimant referred to in para. (a) of s. 20(7)‑‑one who is confined in any gaol, penitentiary or other similar institution‑‑who will also clearly be disentitled to extended benefit by reason of s. 36. In other words, s. 20(7) exhibits as a whole an intention that certain categories of claimant shall be entitled to an extension of a period of extended benefit despite the fact that they were disentitled to extended benefit for a certain period of time by reason of not being capable of and available for work. I am therefore of the view that the appellant is entitled to an extension of his benefit period pursuant to s. 20(7) of the Act.

5. For these reasons I would allow the appeal, set aside the judgment of the Federal Court of Appeal, and restore the decision of the Umpire.

English version of the reasons of Wilson and L'Heureux‑Dubé JJ. delivered by

6. L'Heureux‑Dubé J.‑‑This case concerns the interpretation of ss. 20(7)(b) and 36 of the Unemployment Insurance Act, 1971, S.C. 1970‑71‑72, c. 48, as amended ("the Act"):

20. ...

(7) Where a benefit period has been established in respect of a claimant and the claimant proves in such manner as the Commission may direct that for any week during that benefit period he was not entitled to initial or extended benefit for the reason that he was

(a) confined in any gaol, penitentiary or other similar institution, or

(b) in receipt of temporary total workmen's compensation payments for an illness or injury,

that benefit period shall be extended by the aggregate of any such weeks.

36. Notwithstanding paragraph (b) of section 25, a claimant is not entitled to be paid extended benefit for any working day for which he fails to prove that he was capable of and available for work and unable to obtain suitable employment.

7. (Section 36 as quoted above was in force when the case at bar arose on May 3, 1983, which was the date of the request for extension of the benefit period. The parties referred us to s. 36 which came into effect on January 1, 1984 pursuant to s. 11 of An Act to amend the Unemployment Insurance Act, 1971 (No. 3), S.C. 1980‑81‑82‑83, c. 150, and which read as follows:

36. Notwithstanding paragraph 25(b) and sections 30 and 32, a claimant is not entitled to be paid extended benefit for any working day for which he fails to prove that he was capable of and available for work and unable to obtain suitable employment.

8. That section has since been amended by An Act to amend the Unemployment Insurance Act, 1971, S.C. 1988, c. 8, s. 4 and now reads:

36. Notwithstanding paragraph 25(b) and sections 30, 32, 32.1 and 32.2, a claimant is not entitled to be paid extended benefit for any working day for which the claimant fails to prove that the claimant was capable of and available for work and unable to obtain suitable employment.)

Facts and Decisions

9. In essence the undisputed facts may be summarized as follows. Appellant received unemployment insurance benefits for thirty‑four weeks, namely until January 22, 1983. On this date he was in a regionally extended benefit period (s. 35). On January 24, appellant underwent surgery made necessary by a work‑related injury received in 1981. He then became eligible for "total workmen's compensation payments for an...injury", payments which were made to him by the Commission de la santé et de la sécurité du travail of Quebec (C.S.S.T.) He accordingly became ineligible to receive unemployment insurance benefits (s. 29(3)). However, in accordance with information given to him by an officer employed by respondent, appellant on or about May 3, 1983, having recovered and no longer receiving C.S.S.T. benefits, and again unemployed though capable of and available for work, applied for an extension of his unemployment insurance benefit period, which had been interrupted when he was hospitalized (s. 20(7)(b)). This extension was denied as stated in the following notice dated May 6, 1983:

[TRANSLATION] At the time of your application for an extension of your benefit period, you had not established as required by s. 20 of the Unemployment Insurance Act, 1971 that from January 23 to April 8, 1983 you would otherwise have been eligible to receive benefits, in accordance with s. 36 of the Act which provides that a claimant is not entitled to be paid extended benefits for any working day for which he fails to prove that he was capable of and available for work.

10. The Board of Referees, to which appellant appealed, unanimously affirmed:

[TRANSLATION] The members of the Board of Referees consider that as the claimant was beyond his initial period he could not receive illness benefits during his extended period, under ss. 36 and 20(7) of the Act.

It should be added that he was no longer working at the time of his operation, but was unemployed.

The members of the Board of Referees have no alternative but to uphold the decision.

11. In accordance with s. 95 of the Act, the decision was appealed to an umpire, CUB‑9264, who allowed appellant's claim:

First, let us emphasize that the guideline sent by the Commission to its officers does not have the force of law. The Board of Referees therefore erred when it treated it that way. The Act must always take precedence. And the Act provides that the period in subsection 20(7) is either the initial benefit period or the extended period.

In this case, the Board of Referees wrongly interpreted section 36 and subsection 20(7). It should have granted the appellant the extended period under paragraph 20(7)(b), since the evidence shows clearly that Mr. Serge Gagnon would have been entitled to an additional benefit period of 16 weeks had it not been for the surgery he had to undergo as a result of a previous work injury.

I therefore allow the claimant's appeal.

12. Respondent brought the matter before the Federal Court (Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28) which restored the decision of the Board of Referees. The judgment rendered by Pratte J. from the bench for the Court reads:

We are all of the opinion that the umpire based his decision on a misinterpretation of s. 20(7) of the Unemployment Insurance Act, 1971.

Under that provision, a claimant is only entitled to an extension of the benefit period if he proves that, for one or more weeks, he was ineligible for benefits solely for the reason that any of the circumstances mentioned in s. 20(7)(a) or (b) made him ineligible. Accordingly, a benefit period cannot be extended when the claimant would have been ineligible, as was the case with respondent, even if the grounds of ineligibility mentioned in s. 20(7)(a) and (b) had not existed.

The application will accordingly be allowed, the decision a quo set aside and the matter referred back to the Umpire to be decided by him on the basis that the benefit period cannot be extended in the case at bar. [Emphasis added.]

Legislation

13. The purpose of the Act is to compensate persons whose employment has terminated involuntarily and who are without work (Canadian Pacific Ltd. v. Attorney General of Canada, 1986 CanLII 69 (SCC), [1986] 1 S.C.R. 678, at p. 680; Hills v. Canada (Attorney General), 1988 CanLII 67 (SCC), [1988] 1 S.C.R. 513). Besides formalities of a technical nature, the Act sets out the general criteria of eligibility for unemployment insurance benefits, namely having held insurable employment (s. 3) for the required number of weeks (s. 17(3)(a)) and having had an interruption of earnings from that employment (s. 17(3)(b)). The essential condition of eligibility for unemployment insurance benefits is to be "capable of and available for work and unable to obtain suitable employment" (ss. 25(a) and 36). It should however be noted that, once the general criteria of eligibility have been met, eligibility is the rule and ineligibility the exception (Abrahams v. Attorney General of Canada, 1983 CanLII 17 (SCC), [1983] 1 S.C.R. 2, and Hills v. Canada (Attorney General), supra).

14. Reference should be made here to certain points which are essential to understand the discussion of the issue and its outcome. The Act refers to two concepts, namely the "qualifying period" and the "benefit period", both closely related to those of "initial benefits" and "extended benefits" which are at the heart of this case.

15. A "qualifying period" refers to the fifty‑two weeks during which a claimant held employment before becoming unemployed (s. 18). This period determines the period of his eligibility for benefits under the Act. For example, if during those fifty‑two weeks a claimant did not hold insurable employment he will not be eligible for unemployment insurance benefits. The same is true if he did not hold insurable employment for the minimum of fourteen weeks preceding his becoming unemployed (s. 17(3)(a)). A claimant who has held insurable employment for this fourteen‑week minimum, like one who has held insurable employment for less than twenty weeks, will be regarded as a "minor attachment claimant" (s. 16(1)(e)), "major attachment claimant" meaning someone who has held insurable employment for twenty or more weeks before becoming unemployed (s. 16(1)(d)). Each of these classes of claimants is treated differently in certain respects, particularly as regards a claimant who is pregnant (s. 30), ill (s. 29(1)) and 65 years of age or over (s. 31). This "qualifying period" may be extended for up to fifty‑two weeks for a maximum of one hundred and four weeks, if during the fifty‑two weeks preceding unemployment the claimant, while holding insurable employment, was ill, injured, quarantined, confined, in attendance at a course of instruction or in receipt of total workmen's compensation payments for an injury (s. 18(2)).

16. The "benefit period" is a completely different concept from the "qualifying period". This is the period during which a claimant receives unemployment insurance benefits. The length of this period is also fifty‑two weeks (s. 20(2)) but it may be extended for a maximum of an additional fifty‑two weeks for a total "benefit period" not exceeding one hundred and four weeks (s. 20(9)). It is this "benefit period" which includes a period of "initial benefits" which, once exhausted, may entitle a claimant to "extended benefits", inter alia "by labour force attachment" (s. 34) and then "regionally" (s. 35). The "initial benefit" period is for a maximum of twenty‑five weeks (s. 22(2)) except in cases of illness, injury, quarantine and pregnancy, in which the maximum is reduced to fifteen weeks (s. 22(3)). The computation of this "initial benefit" period depends on the number of weeks for which a claimant has held insurable employment during his "qualifying period".

17. It can be seen that, unlike the situation involving an extension of the qualifying period, which was intended only for persons who are ill, injured, quarantined, in attendance at a course of instruction, confined or receiving workmen's compensation (s. 18), different classes of recipients are eligible for an extension of their "benefit period". Though a person who is ill, injured or in quarantine and a student attending a course of instruction are not eligible for such an extension, a person receiving workmen's compensation (s. 20(7)(b)) and a person confined (s. 20(7)(a)) are eligible, just as, under certain conditions and for a specific number of weeks, are a work‑sharing claimant (s. 37), a claimant taking a course (s. 39) or a claimant hired in a job creation project (s. 38). Specific provision is also made for farmers (ss. 16, 42(2) and 43(3) of the Unemployment Insurance Regulations, C.R.C. 1978, c. 1576 as amended) and fishermen (s. 146). The Act therefore contains special provisions which favour some classes of claimants over others.

18. The causes of disqualification and the causes of ineligibility for benefits are also treated differently by the Act.

19. A claimant is disqualified for a period determined by the Commission, but not exceeding six weeks (s. 43), if he refuses or fails to apply for suitable employment, neglects to avail himself of an opportunity for employment or fails to carry out any directions given by the Commission, refuses to attend training courses or loses his employment voluntarily or by reason of misconduct (ss. 40 and 41).

20. A claimant will be ineligible if he is 65 years of age or over (s. 31), involved in a labour dispute (s. 44), in confinement (s. 45), out of Canada (s. 45), receiving total workmen's compensation payments (s. 29(3)), unable to present evidence of a week of unemployment (s. 21) or of his being capable of and available for work (ss. 25(a) and 36). The length of the ineligibility is not specified: it lasts as long as the cause is not corrected and the conditions of eligibility not met (ss. 27 and 29).

21. On these premises it is clear that a claimant who is ill, injured, quarantined (s. 25(b)) and pregnant (s. 30) will be entitled to "initial benefits" even though during this period he or she is incapable of working and not available for work, except someone receiving "total workmen's compensation payments for an...injury" (s. 29(3)). In this last case, s. 20(7)(b) provides for an extension of the benefit period for "the aggregate of any such weeks", the length of which shall not exceed one hundred and four weeks (s. 20(9)). Does the same hold true of a claimant receiving "extended benefits" at such time? That broadly speaking is the question before the Court. Appellant, who was hospitalized during his extended benefit period, received total workmen's compensation payments during that period and was accordingly ineligible for unemployment insurance benefits. The difficulty lies in the fact that appellant was receiving not initial but extended benefits when he had to be hospitalized.

Arguments

22. Appellant relied on the provisions of s. 20(7) of the Act, while respondent argued that this section has no bearing in the case at bar in view of the provisions of s. 36 of the Act. In other words, respondent maintained that because appellant was receiving extended, not initial benefits when he was hospitalized, he is ineligible for an extension of this extended benefit period since, from the very fact of his temporary total disability, appellant was neither "capable of" nor "available for work" within the meaning of s. 36. Under this narrow interpretation, s. 20(7) applies only to the initial benefit period or, as regards extended benefits, to cases of temporary partial disability which do not render a claimant incapable of and unavailable for work. Respondent stressed that capability of and availability for work underlie the whole legislation and represent the condition sine qua non for entitlement to unemployment insurance benefits. Appellant, for his part, relied on the ordinary meaning of the words used in s. 20(7), which he said interpreted according to respondent's position would practically deprive them of any meaning, as well as add to the provision. Appellant further argued that s. 36 can have no application to the provisions of s. 20(7).

Analysis

23. It should be noted that at the time he became unemployed appellant had thirty‑three weeks of insurable employment in his qualifying period and was accordingly eligible for benefits under the Act commencing on May 16, 1982, for the usual fifty‑two week period, that is until May 14, 1983, provided of course that he was capable of work and unable to obtain any. Allowing for the two‑week waiting period provided for in the Act, appellant received benefits from May 30, 1982 onwards. After receiving twenty‑five weeks of "initial benefits", that is commencing November 21, 1982, appellant was found to be eligible for "extended benefits" of four weeks "by labour force attachment", that is up to December 18, 1982 (s. 34). From that date onwards, appellant was further found to be eligible to receive twenty‑one weeks' additional extended benefits "regionally" (s. 35) and of which five weeks were paid to him, up to January 22, 1983, the date he was hospitalized. At that time appellant had received a total of thirty‑four weeks' benefits out of a possible maximum of fifty weeks (s. 20(6)(c)), taking into account the two‑week waiting period, all other circumstances remaining equal. From the date he was hospitalized until the date he recovered, appellant received "temporary total workmen's compensation payments for an...injury" for a period of fifteen weeks during which his unemployment insurance benefits were suspended. The benefits claimed by appellant, and which he was denied, cover this fifteen‑week period equivalent to the period he was incapacitated, during which he received benefits from the C.S.S.T., that is within the period of extended benefits to which he would otherwise have been entitled had he not been hospitalized.

24. Both respondent Commission and the Board of Referees based their rejection of appellant's claim on the interpretation of s. 20(7) in light of s. 36. Though the Federal Court of Appeal made no reference to this and appears to have limited itself to the interpretation of s. 20(7), it is clear that in doing so it took into account the provisions of s. 36.

25. The fundamental premise underlying the position of respondent and of the Board of Referees is that once the initial benefit period has expired (illness during that period entitles a claimant to benefits under s. 25(b) subject to the limitation in s. 29(3) of the Act), a claimant in an extended benefit period who is ill or the victim of a work‑related injury is not eligible for unemployment insurance benefits solely because he is thereby incapable of working or not available for work, whether or not he is receiving workmen's compensation payments (s. 36). A fortiori, he will not be entitled to an extension of his benefit period if he is the victim of a work‑related injury (s. 20(7)(b)). Despite the fact that some umpires and board of referees were of the opposite view, as is the case here and apart from the two judgments of the Federal Court of Appeal which are the subject of the appeal at bar and the related appeal heard on the same day (Jove v. Umpire Constituted under Section 92 of the Unemployment Insurance Act, 1971, F.C.A., No. A‑1071‑84, June 19, 1985), the parties referred the Court to no other decision on this issue. This Court has never been called on to decide it.

26. Is a claimant who is unable to work as a result of a work‑related illness or injury (for which he receives workmen's compensation), and is on an extended benefit period, once he recovers and is capable of and available for work but unable to obtain suitable employment, entitled to have his unemployment insurance benefits which have been thus interrupted continued, and if applicable, his benefit period extended for this purpose by the aggregate of any such weeks, subject to the benefit period to which he would have been entitled and the maximum allowed by the Act? Prima facie, ss. 20(7)(b) and 36 of the Act would appear to indicate an affirmative answer.

Section 20(7)

20. ...

(7) Where a benefit period has been established in respect of a claimant and the claimant proves in such manner as the Commission may direct that for any week during that benefit period he was not entitled to initial or extended benefit for the reason that he was

(a) confined in any gaol, penitentiary or other similar institution, or

(b) in receipt of temporary total workmen's compensation payments for an illness or injury,

that benefit period shall be extended by the aggregate of any such weeks. [Emphasis added.]

27. Respondent is nevertheless asking this Court to take the analysis further and to look at the provisions of the Act as a whole in order to more fully understand the context in which s. 20(7) of the Act must necessarily be read.

28. Section 25 lays down the rule:

25. A claimant is not entitled to be paid initial benefit for any working day in a benefit period for which he fails to prove that he was either

(a) capable of and available for work and unable to obtain suitable employment on that day, or

(b) incapable of work by reason of prescribed illness, injury or quarantine on that day, and that he would be otherwise available for work. [Emphasis added.]

29. Accordingly, even a person who is incapable of work "by reason of ...illness" will be entitled to unemployment insurance benefits in an initial benefit period if he would otherwise have been available for work. During the period of his illness, the claimant is entitled to receive unemployment insurance benefits, subject always of course to the period of initial benefits to which he is entitled. However, he becomes ineligible if during the period of his disability he receives temporary total workmen's compensation payments "for an illness or injury":

29. ...

(3) A claimant is not entitled to receive benefit for any day for which he receives temporary total workmen's compensation payments for an illness or injury. [Emphasis added.]

30. The purpose of this section is to avoid the double compensation which would otherwise result from the provisions of s. 25(b). As respondent indeed admitted, s. 29(3) makes no distinction between initial or extended benefit periods. However, like ss. 25, 29 and 36, its wording suggests a stay rather than a final termination: "for any day . . .". Section 20(7)(b) also indicates that in such a case the benefit period will be extended by the aggregate of any such weeks for a maximum duration of one hundred and four weeks (s. 20(9)). However, while s. 25(b) deals with a claimant in an "initial benefit" period, s. 20(7) applies to "initial or extended" benefits. These provisions are also consistent with the provisions of ss. 34 and 35, which provide for the extension of the benefit period to the victim of a job‑related accident, since these sections state that "Subsections (7), (8) and (9) of section 20 apply to the period mentioned in subsection (2) with such modifications as the circumstances require" (ss. 34(3) and 35(4)). It should be noted that ss. 34 and 35 are placed under the heading "Extended Benefit" and are concerned only with "extended benefit":

34. (1) Where a claimant has more than twenty‑six weeks of insurable employment in his qualifying period and has been paid initial benefit for the maximum number of weeks set out in section 22, he may, subject to subsection (2), be paid extended benefit for each week of unemployment that falls in the remaining portion of his benefit period.

(2) Extended benefit is payable under subsection (1) in the period

(a) commencing on the Sunday of the week that immediately follows the last week for which benefit was payable to the claimant under section 22, and

(b) ending on the expiration of the number of weeks determined in accordance with Table 1 of Schedule A or on the termination of the claimant's benefit period, whichever first occurs.

(3) Subsections (7), (8) and (9) of section 20 apply to the period mentioned in subsection (2) with such modifications as the circumstances require.

35. (1) When no further benefits are payable to a claimant in a benefit period under sections 22 and 34 and the regional rate of unemployment that applies to him in the last week for which benefits were payable under those sections exceeds four per cent, he may, subject to subsection (2), be paid extended benefit for each week of unemployment that falls in the remaining portion of his benefit period.

(2) Extended benefit is payable under subsection (1) in the period

(a) commencing on the Sunday of the week that immediately follows the last week for which benefits were payable to the claimant under sections 22 and 34, and

(b) ending, subject to subsection (3), on the expiration of the number of weeks determined in accordance with Table 2 of Schedule A or on the termination of the claimant's benefit period, whichever first occurs.

(3) The Commission may, with the approval of the Governor in Council, make regulations under which the period determined under subsection (2) may be adjusted if the regional rate of unemployment that applies to the claimant varies during that period.

(4) Subsections (7), (8) and (9) of section 20 apply to the period mentioned in subsection (2) with such modifications as the circumstances require. [Emphasis added.]

31. If respondent's argument that s. 20(7) applies only to the victim of a work‑related accident in an initial benefit period were accepted, the phrase "extended benefit" in s. 20(7) and the reference to this section in ss. 34 and 35 would be meaningless and seldom be applied. If however the application of s. 20(7) were limited to the victim of a work‑related accident in an extended benefit period, who is not totally incapacitated, that is, who is capable of and available for work despite his illness, like the example put forward by respondent, this comes up against the condition imposed by s. 20(7)(b) that the accident victim be in receipt of "temporary total workmen's compensation payments for an illness or injury" (emphasis added). If the victim of a work‑related accident is receiving this total compensation, he is necessarily suffering from a total temporary disability, the kind which entitles him to total workmen's compensation payments. In this regard appellant referred the Court to the various workmen's compensation statutes in effect in all, or nearly all, the Canadian provinces. From this it is clear that total compensation is reserved for persons who are totally disabled.

32. I should say in passing here that the total permanent disability which gives rise to a "permanent" as opposed to "temporary" compensation could not be a basis for initial or extended benefits, as it is a case in which the claimant becomes definitively ineligible for any benefits as he is no longer on the job market. The word "temporary" is thus entirely appropriate here since it is assumed that a temporarily disabled claimant will return to the job market.

33. The interpretation of s. 20(7)(b) to the effect that the victim of a work‑related injury or illness who is temporarily receiving total workmen's compensation for an injury and so unable to work, once he has recovered and is available for work, is eligible for an extension of his unemployment benefit period, even when that disability occurs during his extended benefit period, is in keeping with the wording of s. 20(7)(b) and is consistent with the provisions of the Act as a whole, including ss. 25(b), 29(3), 34, 35 and 36, which are relevant here.

34. In order to adopt the Court of Appeal interpretation, one must either add to the text or interpret s. 36 as applying to s. 20(7) so as to considerably limit its scope. The Court of Appeal held that appellant had to establish that he was not entitled to benefits solely on the ground that s. 20(7) made him ineligible. If this were the case the wording of s. 20(7) should read as if the word "uniquement" preceded "parce qu'il" in the French text and "solely" preceded "for the reason" in the English text. If this addition is a consequence of s. 36, it is not in my opinion a necessary one.

35. Apart from s. 36 of the Act, I see nothing contrary to the interpretation of s. 20(7) suggested by appellant and I think that everything favours it: the wording, the context and the rules of construction that the legislator is deemed not to have spoken in vain and that wording should not be added to when without doing so it can be given an interpretation which is neither illogical nor clearly contrary to the legislative intent. The least that can be said is that the Act is not a model of clarity and, consequently, its interpretation is not an easy task.

Section 36

36. Notwithstanding paragraph (b) of section 25, a claimant is not entitled to be paid extended benefit for any working day for which he fails to prove that he was capable of and available for work and unable to obtain suitable employment. [Emphasis added.]

36. This section applies only to extended benefits. According to the interpretation given to it by respondent, a claimant must be capable of and available for work, in order to be entitled to extended benefits, and accordingly, a claimant who is completely incapable of work because of illness is not covered. Respondent is correct as long as its interpretation is restricted to the beneficiary claiming extended benefits during his illness or because of a work‑related injury (or work‑related illness) and therefore unavailable and unable to work. This interpretation is in accordance with a consistent line of cases (Lebbad, CUB‑8366, and Guglielmi, CUB‑8372). I consider, however, that respondent is wrong when extending that interpretation to include the case of a claimant suffering from a work‑related injury during his period of extended benefit but who has recovered and is available and able to work before his benefit period, extended or not, expires.

37. Section 36 which deals with extended benefits is the equivalent of s. 25 which deals only with initial benefits. In order to receive initial benefits, the claimant must prove either that he is available for work or that he is ill. Once either case is proven, the claimant will receive benefit during his initial benefit period (s. 25), with the exception of the claimant receiving total workmen's compensation for a work‑related injury (s. 29(3)) whose initial benefit period will be extended accordingly (s. 20(7)). In order to receive extended benefits, one must be available and able to work (s. 36). This section accordingly eliminates the right to extended benefits during the illness‑‑this fact can probably explain the reference to s. 25(b) which, even if not essential or necessary, is only concerned with initial benefits and may be the result of an excess of caution, which is not uncommon on the part of the legislator.

38. Undoubtedly, if a claimant can receive its initial benefits during his sickness by exception, a fortiori will he be entitled to them after he has recovered and is able to work. The same is true concerning extended benefits which will not be payable to the claimant during his illness, but will be payable once he has recovered and is able to work for the remaining extended benefit period and, in the case of a claimant suffering from a work‑related injury, for the extension of his benefit period (s. 20(7)). Sections 34 and 35, by their specific reference to s. 20(7) to which s. 36 does not refer and a fortiori does not prohibit, support that interpretation. It is interesting to note that s. 36.1 was found in a prior version of the Act (An Act to amend the Unemployment Insurance Act, 1971, S.C. 1974‑75‑76, c. 80, s. 13):

36.1 Subsections (7), (8) and (9) of section 20 apply to an extended benefit period with such modifications as the circumstances require.

39. This provision, which was incorporated in ss. 34 and 35 when these sections were amended, became unnecessary and was therefore abrogated. It is clear that the legislator did not intend, by adopting s. 36, to nullify either s. 20(7) or ss. 34 and 35 which refer to s. 20(7). Section 20(7) relates, among other things, to a claimant who is unable to work following a work‑related injury for which he receives total workmen's compensation payments provided for in such a case. In the case of ss. 36 and 29(3) (if this latter provision applies to extended benefits), given that that claimant is not eligible for extended benefits during his disability, s. 36 allows him to receive, after his recovery, extended benefits to which he is entitled pursuant to ss. 34 and 35 as long as those benefits are payable within the benefit period extended according to ss. 20(7), (8) and (9) if necessary.

40. The interpretation of s. 36 suggested by appellant does not violate the texts, is in harmony with the context, gives the words their full sense without adding to or taking away from that sense and permits the section to retain a meaning that would be lost if respondent's interpretation were to prevail. In my view, this interpretation is consistent with the intention of the legislator.

41. In Jove, supra, MacGuigan J. wrote:

I wish to add only a few words.

Apart from the authority of the Gagnon case, I am to this point in the argument inclined to the applicant's view, because I am not convinced that paragraph 20(7)(b) of the Unemployment Insurance Act would otherwise have any application to an extended benefit period, and so be left bereft of meaning.

However, constrained as I am by precedent, I must concur with my brothers.

42. If we now look at the intent of the legislator, it is obvious that the Act does not treat all classes of claimants equally. While capacity and availability for work are generally requirements in order to receive unemployment insurance benefits, there are many exceptions in which certain claimants will receive initial benefits even during a period of disability. The fact that the legislator did not intend to give such claimants extended benefits during the extended benefit period does not necessarily mean that the intent was to deprive them of these benefits definitively, if before the expiry of their benefit period the claimants became available for and capable of work but were unable to find employment. The phrase "for any day" contained in s. 25 as well as ss. 29 and 36 is significant in this regard. Take the case of a claimant who, either during his initial or his extended benefit period, is hospitalized for just one day. In respondent's interpretation this interruption of availability for work would not deprive him of benefits under the Act if he is in an initial benefit period, but would deprive him of them if he is in an extended benefit period, not for that day only but permanently. It seems to me that if the legislator had intended this he would have said so clearly, especially as it seems illogical in view of the general philosophy of the Act which is to compensate an unemployed worker if he is available for work, and this is the case with an ailing worker once he has recovered, always assuming that the benefit period established for that claimant is observed. There is also nothing in the Act to indicate that the legislator, in adopting s. 36, intended such a drastic result: at least nothing in the context indicates this. On the contrary, the legislator has enacted rules that favour certain classes of workers who are temporarily and involuntarily unable to work by reason of confinement, pregnancy and illness. Returning to the example of a claimant who is unavailable for one day by reason of illness, he will continue to receive, once he has recovered and is available for work, the benefits established in his favour for the benefit period as yet unexpired. A claimant who receives total compensation for an injury also continues, once he has recovered and is available for work, to receive the benefits established in his favour for the unexpired benefit period, that period being extended by the days for which he has received this compensation, if necessary.

43. Additionally, my opinion is based on the provisions regarding disqualification and ineligibility which I mentioned above. I think it is illogical and not in keeping with the purpose of the Act for the legislator to have intended to deal with claimants who are disqualified from receiving benefits under the Act for, inter alia, having left their employment deliberately or losing it for misconduct, by depriving them of benefits for a period in the discretion of the Commission, while claimants who are temporarily and involuntarily ineligible for benefits under the Act, as in the case of the victim of a work‑related injury, are deprived of benefits absolutely for that reason alone. I see no reason to interpret the provisions of s. 36 of the Act in this way. Read in the manner suggested by appellant, s. 36 is consistent with the provisions of ss. 20(7), 34 and 35 of the Act and corresponds to its purpose, which is to compensate workers involuntarily unemployed but not to penalize those temporarily but involuntarily unavailable, whether for a day, a week, a month or any other period, always assuming that the benefit period established for each claimant has not been exceeded, except for the extension of the benefit period specified for the victim of a work‑related injury, which compensates for the disentitlement provided for in s. 29(3) and the purpose of which is to avoid double compensation. For the legislator to have sought to favour persons confined and victims of work‑related injuries in this way is in keeping with an Act which, for reasons of legislative policy, confers more or less extensive benefits on certain classes of claimants, such as farmers, fishermen, workers in regions of high unemployment and so on. In my view, a claimant receiving total workmen's compensation payments for an injury falls into this class of claimants.

44. In brief, both the wording and the context, as well as the intention that emerges from the Act, support appellant's interpretation.

45. That is not to say that the provisions of the Act are a model of clarity. Trying to reconcile them requires an uncommon degree of dexterity, with the result that in borderline cases such as the one at bar, where two interpretations are possible, taking into account that the purpose of the Act is to compensate workers who are involuntarily unemployed, the worker must be given the benefit of the doubt (Abrahams v. Attorney General of Canada, supra).

46. For these reasons, I would set aside the judgment a quo, allow the appeal and restore the decision of the Umpire, the whole without costs.

Appeal allowed.

Solicitors for the appellant: Sabourin, Savard, Nadeau, Tremblay, Francoeur & Associés, Baie‑Comeau.

Solicitors for the respondent: Gaspard Côté and Carole Bureau, Montréal.

* Estey J. took no part in the judgment.

Footnotes

1. 1F.C.A., No. A‑1059‑84, May 22, 1985.