Date: 20110927
Docket: A-61-11
Citation: 2011 FCA 268
CORAM: SHARLOW
J.A.
LAYDEN-STEVENSON
J.A.
STRATAS
J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
SARAH TROCHIMCHUK
Respondent
REASONS FOR JUDGMENT
LAYDEN-STEVENSON J.A.
[1] The
applicant Attorney General of Canada (the Crown) applies for judicial review of
the decision of Umpire Landry (CUB 76124) dismissing its appeal from a decision
of the Board of Referees (the Board). The Umpire held that subsection 30(5) of
the Employment Insurance Act, S.C. 1996, c. 23 (the Act) did not
preclude previous hours accumulated from work at a second job from counting
towards employment insurance benefits (benefits) in circumstances when a
claimant left a first job without just cause. The respondent did not file
written submissions and was not present at the hearing before this Court. For
the reasons that follow, I would allow the application.
Background
[2] The
respondent worked at International Clothiers Inc. (the first job) from January
16, 2009 until May 10, 2009. She left her employment at the first job in order
to pursue her studies. It is settled law that leaving one’s employment to
pursue studies does not constitute just cause under the Act: Canada (A.G.)
v. Mancheron, 2001 FCA 174, 109 A.C.W.S. (3d) 558. On June 28, 2009, the
respondent obtained employment with Air Ivanhoe Ltd. (Ivanhoe). She was laid
off from Ivanhoe on September 19, 2009. At the time the respondent left her
employment at the first job, she was also working at Stinson Theatres Limited
(the second job). Although she also voluntarily left her second job, the
Employment Insurance Commission (the Commission) determined that she had just
cause for doing so.
[3] The
respondent applied for benefits on September 25, 2009. The Commission
determined that she required 455 hours of insurable employment to qualify for
benefits. It considered only those hours accumulated after May 10, 2009 (the
termination date at the first job) based on its interpretation of subsection
30(5) of the Act. In other words, the Commission excluded the hours the
respondent accumulated at the second job previous to May 10th.
Because she had only 425 hours accumulated after May 10th, the
Commission denied the respondent’s application. The record shows that, if the
pre-May 10th hours from the second job had been included, the
respondent would have qualified for benefits.
The Board
[4] On Appeal to
the Board, the respondent conceded that her hours at the first job could not be
counted as qualifying hours.
However, she argued that her pre-May 10th second job hours should be
included. The Board misunderstood the Commission’s submissions at the hearing
and erroneously believed that the Commission had stated the respondent left her
first job with just cause. On that basis, the Board allowed her appeal.
The
Umpire
[5] The Crown
appealed the Board’s determination. The Umpire found that the Board had
misinterpreted the Commission’s position in that the respondent had shown just
cause for leaving her second job, but had not shown just cause for leaving her
first job. However, the Umpire determined that the Act, specifically subsection
30(5), did not preclude the pre-May 10th hours accumulated at the
second job from counting towards qualification for benefits. The Umpire
acknowledged that, “[o]n its face, subsection 30(5) appears to state that
whatever the circumstances when one voluntarily leaves an employment without
just cause all insurable hours earned prior to that moment are lost in respect
of future claims for benefits” (reasons, at p. 3).
[6] In the
Umpire’s view, such an interpretation put any person holding two or more jobs
at risk. He concluded that the legislator did not intend to sanction “persons
who find it necessary to hold two jobs, when such persons decide to abandon one
of the two jobs while continuing their employment on their other job” (reasons,
at p. 5). The Umpire’s proposed “appropriate interpretation” is as follows:
-
when
a person has one employment and leaves that employment without
just cause, the person loses
all insurable hours accumulated previously from
that employment or a previous
employment
-
when
a person holds two jobs and leaves one job while continuing to work
on a second job, that person
loses the insurable hours accumulated from the
abandoned job and any other
previous jobs but retains the insurable hours accumulated in the continuing
employment (reasons, at p. 5)
The Standard
of Review
[7] The
interpretation of a statutory provision is a question of law. The standard of
review applicable to a decision of an Umpire is correctness on questions of law
and reasonableness on the application of the law to the facts: MacNeil v.
Canada (Employment Insurance Commission), 2009 FCA 306, 396 N.R.
157; Mac v. Canada (A.G.), 2008 FCA 184, 380 N.R. 203; Canada
(A.G.) v. Sveinson, 2001 FCA 315, [2002] 2 F.C. 205.
The
Statutory Provision
[8] The
relevant parts of section 30 read:
|
Employment Insurance Act S.C. 1996, c. 23
30. (1) A claimant is disqualified from
receiving any benefits if the claimant lost any employment because of their
misconduct or voluntarily left any employment without just cause, unless
(a) the
claimant has, since losing or leaving the employment, been employed in
insurable employment for the number of hours required by section 7 or 7.1 to
qualify to receive benefits; or
(b) the
claimant is disentitled under sections 31 to 33 in relation to the
employment.
…
30(5) If a claimant who has lost or left an
employment as described in subsection (1) makes an initial claim for
benefits, the following hours may not be used to qualify under section 7 or
7.1 to receive benefits:
(a) hours
of insurable employment from that or any other employment before the
employment was lost or left; and
(b) hours
of insurable employment in any employment that the claimant subsequently
loses or leaves, as described in subsection (1).
|
Loi sur l’assurance-emploi L.C. 1996, ch. 23
30. (1) Le prestataire est exclu du
bénéfice des prestations s’il perd un emploi en raison de son inconduite ou
s’il quitte volontairement un emploi sans justification, à moins, selon le
cas :
a) que,
depuis qu’il a perdu ou quitté cet emploi, il ait exercé un emploi assurable
pendant le nombre d’heures requis, au titre de l’article 7 ou 7.1, pour
recevoir des prestations de chômage;
b) qu’il
ne soit inadmissible, à l’égard de cet emploi, pour l’une des raisons prévues
aux articles 31 à 33.
[…]
30(5) Dans les cas où le prestataire qui a perdu ou
quitté un emploi dans les circonstances visées au paragraphe (1) formule une
demande initiale de prestations, les heures d’emploi assurable provenant de
cet emploi ou de tout autre emploi qui précèdent la perte de cet emploi ou le
départ volontaire et les heures d’emploi assurable dans tout emploi que le
prestataire perd ou quitte par la suite, dans les mêmes circonstances,
n’entrent pas en ligne de compte pour l’application de l’article 7 ou 7.1.
|
Analysis
[9]
Statutory interpretation seeks a harmonious reading on the basis of a provision’s
text, context and purpose. The words viewed in context, if clear, will
dominate. If not, they yield to an interpretation that best meets the
overriding purpose of the statute: Celgene Corp. v. Canada (Attorney
General), 2011 SCC 1, [2011] 1 S.C.R. 3.
[10] As
stated previously, the Umpire concluded that the text of the provision, on its
face, appears to state that “whatever the circumstances when one voluntarily
leaves an employment without just cause all hours earned prior to that moment
are lost in respect of future claims for benefits” (reasons, at p. 3). This is
the interpretation proposed by the Crown. Although he did not specifically
refer to Canada (Attorney General) v. Abrahams,
[1983] 1 S.C.R. 2 (Abrahams), it appears that the Umpire implicitly adopted
the principles expressed in that authority. That is, the overall purpose of the
Act is to make benefits available to the unemployed. The Act is to be liberally
interpreted and any doubt arising from difficulties in the language are to be
resolved in favour of the claimant: Abrahams, at p. 10. Nonetheless,
Parliament’s expressed intent, when it can be discerned, must prevail.
[11] Subsection
30(5) of the Act is not a model of draftsmanship. For example: it is not clear
if both paragraphs (a) and (b) of subsection 30(5) are to be read
in conjunction with subsection 30(1) as indicated at its outset; it is not
clear whether the word “or” in paragraph (a) is to be read conjunctively
or disjunctively; it is not clear if the words “before the employment was lost
or left” in paragraph (a) modify the phrases “from that”, or “from any
other employment”, or both. Thus, it can be said that the provision is
ambiguous.
[12] However,
the legislation is written in both official languages. Both the English and French
versions of a statute are equally authoritative statements: Schreiber v.
Canada (Attorney General), 2002 SCC 62, [2002] 3 S.C.R. 269, at para.
54; Michel Bastarache, The Law of Bilingual Interpretation, 1st ed. (Markham:
LexisNexis, 2008) at p. 15. As stated in Ruth Sullivan, Sullivan on the
Construction of Statutes, 5th ed. (Markham:
LexisNexis, 2008), both versions of bilingual legislation must express the same
law and must receive the same interpretation. If there is a discrepancy between
the versions, the discrepancy must be eliminated. The best way to reconcile
conflicting versions is to identify and adopt a meaning that may plausibly be
attributed to both (Sullivan, at p. 100). When the versions differ in scope,
the narrower meaning found in both expresses the shared meaning and should
prevail: R v. Daoust, 2004 SCC 6, [2004] 1 S.C.R. 217, at para. 29.
[13] In this
case, reference to the French text eliminates any ambiguity found in the
English version. The French version states: [d]ans les cas où le
prestataire qui a perdu ou quitté un emploi dans les circonstances visées au
paragraphe (1) formule une demande initiale de prestations, les heures d’emploi
assurable provenant de cet emploi ou de tout autre emploi qui précèdent la
perte de cet emploi ou le départ volontaire emploi [from this employment or
from all other employment that preceded the loss of this employment or the
voluntary departure] et les heures d’emploi assurable dans tout emploi que le
prestataire perd ou quitte par la suite, dans les mêmes circonstances,
n’entrent pas en ligne de compte pour l’application de l’article 7 ou 7.1.
[14] The French
version, read together with subsection 30(1), makes clear that in circumstances
where, absent just cause, an individual voluntarily leaves employment, the
hours of insurable employment accumulated in any employment before the
date upon which the person left the employment are excluded from the
computation in relation to qualification for benefits. This interpretation is
consistent with the Crown’s position and is also consistent with the Hansard
debates when Bill C-12 was tabled: House of Commons Debates, Volume 134, Number
044 (May 10, 1996) at 2599-2602; House of Commons Debates, Volume 134, Number
046 (May 14, 1996) at 2733. Given the clarity of the French version, the shared
meaning between the English and French versions, in my view, is consistent with
Parliament’s intent.
[15] Interpreting
subsection 30(5) correctly, it means that when a claimant applies for benefits,
the insurable hours of employment accumulated in any employment prior to
the claimant voluntarily leaving employment are excluded from the calculation
of insurable hours in relation to the application.
[16] For
these reasons, I conclude that the Umpire erred in interpreting subsection
30(5) of the Act.
Disposition
[17] I would
allow the application for judicial review, set aside the Umpire’s decision and
return the matter to the Chief Umpire, or his designate, for redetermination on
the basis that the respondent had insufficient hours of insurable employment to
qualify for employment insurance benefits. I would not award costs since the
Crown did not request them.
"Carolyn
Layden-Stevenson"
“I
agree
K.
Sharlow J.A.”
“I
agree,
David
Stratas J.A.”
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