jove v. canada (unemployment insurance), [1988] 2 S.C.R. 53

Julian Jove Appellant

v.

The Umpire Constituted under Section 92 of the Unemployment Insurance Act, 1971 Respondent

indexed as: jove v. canada (umpire, unemployment insurance)

File No: 19564.

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 ‑‑ Total temporary workmen's compensation received by claimant ‑‑ Suspension of unemployment insurance benefits ‑‑ Request for an extension of benefit period made during extended benefit period ‑‑ Whether claimant entitled to an extension of the benefit period pursuant to s. 20(7)(b) notwithstanding s. 36 of the Unemployment Insurance Act, 1971.

Appellant applied for unemployment insurance and a claim was established effective April 11, 1982. He received 26 weeks of benefits ending October 23, 1982 when he obtained employment. Shortly thereafter, appellant sustained a serious injury for which he received temporary total disability benefits from the Workers' Compensation Board. These benefits were terminated June 23, 1983 when appellant was considered fit to work. His previous job had ceased to exist and, unable to find work, he requested under s. 20(7)(b) of the Unemployment Insurance Act, 1971 the extension of his initial benefit period terminated in April 1983 to cover the period commencing June 23, 1983. Appellant's request made during the extended benefit period of a claim was denied pursuant to s. 36 of the Act. This section provided that 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". A Board of Referees allowed appellant's appeal but the Board's decision was reversed by the Umpire. The Federal Court of Appeal upheld the Umpire's decision. This appeal raises the same question of law dealt with in Canada (Canada Employment and Immigration Commission) v. Gagnon, 1988 CanLII 48 (SCC), [1988] 2 S.C.R. 29.

Held: The appeal should be allowed.

In light of Canada (Canada Employment and Immigration Commission) v. Gagnon, supra, appellant is entitled to an extension of his benefit period pursuant to s. 20(7)(b) of the Unemployment Insurance Act, 1971.

Cases Cited

Followed: Canada (Canada Employment and Immigration Commission) v. Gagnon, 1988 CanLII 48 (SCC), [1988] 2 S.C.R. 29, rev'g F.C.A., No. A‑1059‑84, May 22, 1984.

Statutes and Regulations Cited

Unemployment Insurance Act, 1971, S.C. 1970‑71‑72, c. 48, ss. 20(7)(b) [en. 1974‑75‑76, c. 80, s. 5; rep. & subs. 1976‑77, c. 54, s. 33], 36 [rep. & subs. 1976‑77, c. 54, s. 41], 95 [rep. & subs. 1976‑77, c. 54, s. 56].

APPEAL from a judgment of the Federal Court of Appeal[^1], dismissing appellant's application under s. 28 of the Federal Court Act and affirming the decision of an umpire under the Unemployment Insurance Act, 1971. Appeal allowed.

[^1]: F.C.A., No. A‑1071‑84, June 19, 1985.

Allan MacLean, for the appellant.

Mitchell R. Taylor and Gaspard Côté, Q.C., for the respondent.

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

1. Le Dain J.‑‑For the reasons given by me in Canada (Canada Employment and Immigration Commission) v. Gagnon, 1988 CanLII 48 (SCC), [1988] 2 S.C.R. 29, I would allow the appeal, set aside the judgment of the Federal Court of Appeal and the decision of the Umpire and refer the matter back to the Umpire for determination on the basis that the appellant is entitled to an extension of his benefit period pursuant to s. 20(7) of the Unemployment Insurance Act, 1971, S.C. 1970‑71‑72, c. 48.

The reasons of Wilson and L'Heureux‑Dubé JJ. were delivered by

2. L'Heureux‑Dubé J.‑‑This appeal concerns the same question of law raised in Canada (Canada Employment and Immigration Commission) v. Gagnon, 1988 CanLII 48 (SCC), [1988] 2 S.C.R. 29. Both cases were heard together and deal with the interpretation of ss. 20(7)(b) and 36 of the Unemployment Insurance Act, 1971, S.C. 1970‑71‑72, c. 48 as amended, which read as follows:

3. ...

(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.

37. The facts are not contested and can be summarized as follows.

38. The appellant applied for Unemployment Insurance and a claim was established effective April 11, 1982. He received 26 weeks of benefits ending October 23, 1982 when he obtained employment. Shortly thereafter the appellant sustained a serious injury for which he received temporary total disability benefits from the Workers' Compensation Board. Said benefits were terminated June 23, 1983 as the appellant was fit to return to work. As there was no work to return to the appellant sought to have his insurance claim which was established in April 1982 extended to cover the period commencing June 23, 1983 pursuant to s. 20(7)(b) of the Act. His initial request was denied on the grounds that:

1. On the information which has been presented with your claim for benefit you are not entitled to benefit from 5 November 1982 to 23 June 1983. Sickness benefits are payable only during the initial benefits phase of a claim. Your claim was in the extended benefit phase.

2. On the information which has been presented with your claim for benefit you are not entitled to benefits from 5 November 1982 to 23 June 1983. A claimant is not entitled to Unemployment benefits while in receipt of total temporary Worker's Compensation for an illness or injury.

5. An appeal to the Board of Referees was allowed on August 29, 1983. The pertinent part of the Board's reasons reads:

He requests an extension of his benefit period in accordance with Section 20(7) and Section 20(8) of the Act.

We are told that the Commission interprets that Section 36 overrides Section 20(7) and Section 20(8) in that as he is unable to work in his extended benefit period he is not entitled to benefits nor can his benefit period be extended.

In the opinion of the Board this is an incorrect interpretation. Section 20(7) and 20(8) is clear and concise. The intent of the Legislation is to provide extension of the benefit period in "a" benefit period. This benefit period is undefined and therefore must apply to all types of benefit period.

In our opinion Section 36 cannot override the clear intent of Section 20(7) and 20(8).

The Board is of the opinion that an extension of the benefit period must be allowed from 23 June 1983 forward, and in this case the appellant's appeal is allowed.

6. On a further appeal to the Umpire, CUB‑9060, the appeal was allowed on June 4, 1984, on the following basis:

In other words, under Section 36, a claimant must prove that he was capable of and available for work but how can that be said of one who is sick and unable to work as was this claimant from April to June 23, 1983? Under Section 20(7), an extension could have been granted to the claimant had he not been on compensation benefits.

7. The Umpire, Dubinsky J., relied on his previous decisions on the same point and found that the Board of Referees "was influenced by its heart not by its head" and in so doing had erred in law and its findings of fact were made in a "perverse or capricious manner or without regard to the material before it", which permitted him to reverse such decision in accordance with s. 95 of the Act.

8. An appeal to the Federal Court of Appeal was dismissed on the basis that the Court was bound by its prior decision in Canada Employment and Immigration Commission v. Gagnon, as Pratte J. stated on the Bench on June 19, 1985, speaking for the Court (Marceau and MacGuigan JJ.):

We do not need to hear you, Mr. Taylor.

In a judgment pronounced on May 22, 1985, in the case of Canada [Employment and Immigration Commission] v. Gagnon, (Court File No. A‑1059‑84), the Court rejected the interpretation of subsection 20(7) of the Unemployment Insurance Act that was proposed by Mr. MacLean in this case. We have not been persuaded that that decision was clearly wrong; we, therefore, feel that we have to follow it.

The application will be dismissed.

9. MacGuigan J. gave separate reasons:

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.

10. For the reasons given in my judgment in Canada (Canada Employment and Immigration Commission) v. Gagnon, supra, rendered today, the appeal is allowed, the judgment of the Federal Court of Appeal set aside, the decision of the Board of Referees reinstated and the case remanded to the Employment and Immigration Commission for proper disposal of appellant's claim given his entitlement, the whole without costs.

Appeal allowed.

Solicitors for the appellant: Vancouver Community Legal Assistance Society, Vancouver.

Solicitor for the respondent: Frank Iacobucci, Ottawa.

* Estey J. took no part in the judgment.