Date: 20010531
Docket: A-740-00
Neutral citation: 2001 FCA 183
CORAM: RICHARD C.J.
ROTHSTEIN J.A.
SEXTON J.A.
BETWEEN:
RANDY NASH
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
HEARD at St. John's, Newfoundland, on Thursday, May 31, 2001
JUDGMENT delivered at Ottawa, Ontario, on Monday, June 4, 2001
REASONS FOR JUDGMENT DELIVERED BY: ROTHSTEIN J.A.
CONCURRED IN BY: RICHARD C.J.
SEXTON J.A.
Date: 20010531
Docket: A-740-00
Neutral citation: 2001 FCA 183
CORAM: RICHARD C.J.
ROTHSTEIN J.A.
SEXTON J.A.
BETWEEN:
RANDY NASH
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
ROTHSTEIN J.A.
[1] This is a judicial review from a July 26, 2000 decision of an umpire under the Employment Insurance Act, S.C. 1996, c. 23.
[2] The applicant was a fisherman during the period June 29, 1999 to July 27, 1999. On August 31, 1999, he began a full-time construction industry electrical course at the College of the North Atlantic in Seal Cove, Newfoundland. The course ran from August 31, 1999 to June 30, 2000. While enrolled in this course, the applicant, on October 3, 1999, applied for employment insurance. He was entitled to apply for benefits as a fisherman because he met the minimum income requirements under the Regulations.
[3] Paragraph 18(a) of the Employment Insurance Act provides that claimants are not entitled to benefits if they are not available for work.
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18. A claimant is not entitled to be paid benefits for a working day in a benefit period for which the claimant fails to prove that on that day the claimant was
(a) capable of and available for work and unable to
obtain suitable employment;
(b) [...]
(c) [...]
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18. Le prestataire n'est pas admissible au bénéfice des prestations pour tout jour ouvrable d'une période de prestations pour lequel il ne peut prouver qu'il était, ce jour-là :
a) soit capable de travailler et disponible à cette fin et incapable d'obtenir un emploi convenable;
b) [...]
c) [...]
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[4] The applicant concedes that by reason of his enrollment in a full-time course of study he was not available for work as a fisherman and that if paragraph 18(a) of the Act applies, he is not entitled to employment insurance. However, his argument is that subsection 9(3) of the Employment Insurance (Fishing) Regulations, SOR/96-445, is an exception to paragraph 18(a) of the Act within the separate employment insurance regulations established for fishers. Subsection 9(3) of the Employment Insurance (Fishing) Regulations provides:
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9(3) A fisher is unemployed and available for work in respect of the fisher's employment, engagement or operation of a business in fishing, whether it is an insurable employment or not, during the benefit periods referred to in subsection 8(11).
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9(3) Au cours des périodes de prestations visées au paragraphe 8(11), le pêcheur est en chômage et disponible pour le travail à l'égard de l'activité ou de l'emploi qu'il exerce ou de l'entreprise qu'il exploite dans la pêche, qu'il s'agisse ou non d'un emploi assurable.
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[5] The applicant says that subsection 9(3) deems a fisherman to be unemployed and available for work during the benefit period, notwithstanding that, in fact, he or she may not be unemployed or available for work. While he acknowledges that his interpretation of subsection 9(3) can lead to absurd results, such as fishermen being entitled to unemployment insurance while working in other occupations or on vacation in Florida or elsewhere, he says that is the result mandated by the words of the subsection.
[6] Apart from the fact that such an interpretation is entirely inconsistent with the rationale and scheme of employment insurance, it does not give meaning to the words used in subsection 9(3). In particular, it ignores the words "... in respect of a fisher's employment, engagement or operation of a business in fishing, ... during the benefit periods referred to in subsection 8(ll)". These words have been interpreted to mean that even though a fisherman is not engaged in catching fish, but is involved in work incidental to fishing, such as repairing nets or machinery on a fishing vessel during the benefit period, he or she will not be considered as employed or unavailable for work so as to be disqualified from receiving employment insurance.
[7] In respect of a similarly-worded previous provision, Walsh J., acting as umpire, stated in CUB 3389, Re Edward Kurz (27 September 1973) at page 12:
The words "in respect of his employment or engagement in fishing" in section 208(4) must be given effect to, however, and I believe the Commission is correct in interpreting this as meaning that if he is engaged casually in fishing during the off-season or, as the claimant was in this case, devoting time to repairing his nets and working on his boat, this will not have the effect of him being considered unavailable within section 25(a) of the Act [...] He still has to prove his availability for other employment except when he is engaged in off-season fishing work which work would not prevent him from being considered available.
The same interpretation was adopted Strayer J. (as he then was) acting as umpire in CUB 22164, Re Earl Dalton (13 November 1992) at page 4:
I am satisfied that section 86 of the Regulations does not assist the claimant. The only subsection possibly relevant to the claimant's situation is, I believe, subsection 86(4). But it would only have the effect of changing the normal requirements of availability if the claimant were engaged during the off-season in part-time work connected with fishing. It is only occupation of time during the off-season
in respect of the fisherman's employment or engagement in fishing [...]
which is deemed not to affect his availability. In the present case the claimant was, instead, engaged in a programme of university studies.
The same interpretation was adopted by Cullen J. acting as umpire in CUB 19363, Re Roland Prince (5 March 1991) at page 3. The umpire in the present case adopted this interpretation and found that the applicant was not entitled to employment insurance.
[8] I am of the opinion that this interpretation of subsection 9(3) is correct. It is only employment, engagement or operation of a business in fishing during a benefit period that entitles a fisherman to be deemed unemployed and available for work for purposes of employment insurance. The appellant here was attending a full-time construction industry electrical course during the benefit period. He was therefore subject to paragraph 18(a) of the Act. Because he was not available for work, he was not entitled to be paid employment insurance.
[9] The appeal should be dismissed with costs.
"Marshall Rothstein"
J.A.
"I agree
Richard C.J."
"I agree
J. Edgar Sexton J.A."
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