Date:
20091002
Docket:
A-32-09
Citation:
2009 FCA 283
CORAM: SEXTON
J.A.
SHARLOW
J.A.
RYER
J.A.
BETWEEN:
ATTORNEY
GENERAL OF CANADA
Applicant
and
SHERRI
BENEDETTI
Respondent
REASONS FOR JUDGMENT
SEXTON J.A.
I. Facts
[1]
The
respondent, Ms. Benedetti, was employed as a home support worker in British
Columbia School District No. 73 from September 6, 2004 until October 5, 2006.
On October 7, 2005, Ms. Benedetti was unable to continue work as a result of a
walkout by members of the British Columbia Teachers’ Federation (BCTF).
[2]
By the
fall of 2005, the collective agreement between the BCTF and the British
Columbia Public School Employers’ Association (BCPSEA) had expired. Members
were in the process of negotiating a new agreement. The British Columbia government then tabled legislation
to extend the expired contract. In response to the legislation, members of the
BCTF and the Canadian Union of Public Employees (CUPE), which represented
school support workers, staged a walkout. Ms. Benedetti was a member of CUPE.
[3]
As a
result of her unemployment, Ms. Benedetti applied to collect employment
insurance. The Canada Employment Insurance Commission (“the Commission”) denied
Ms. Benedetti’s claim for the period of October 7 to October 21, 2005, ruling
that her inability to work occurred as a result of a work stoppage due to a
labour dispute, and that she was accordingly disentitled under subsection 36(1)
of the Employment Insurance Act, S.C. 1996, c. 23 (“the Act”).
II. Decisions
Below
[4]
Ms.
Benedetti appealed the ruling to a Board of Referees. The Board of Referees
surveyed the evidence and ruled that the Ms. Benedetti’s unemployment stemmed
from a political protest, not a labour dispute. It therefore allowed the
appeal.
[5]
The
applicant then appealed the Board’s decision to an Umpire. The Umpire upheld
the Board of Referees’ decision and dismissed the appeal. He held that when the
BCTF opted to walk out, negotiations between it and the BCPSEA were still
ongoing. Accordingly, the Umpire ruled that “the action was clearly as a result
of government intervention by legislating an end to the dispute between the
teachers and their employer” and that the Board’s decision was reasonable.
III. Issues in the Application
[6]
The
applicant submits that the Umpire erred in maintaining the Board’s decision
finding that the dispute that caused the work stoppage between October 7, 2005
and October 21, 2005 was not a labour dispute as defined in the Act.
IV. Relevant
Legislative Provisions
[7]
The
disentitlement provision in question is found in subsection 36(1) of the Act:
|
Subject to the regulations, if a claimant loses an employment, or is
unable to resume an employment, because of a work stoppage attributable to a
labour dispute at the factory, workshop or other premises at which the
claimant was employed, the claimant is not entitled to receive benefits until
the earlier of
(a) the end of the work stoppage, and
(b) the day on which the claimant becomes regularly
engaged elsewhere in insurable employment.
|
Sous réserve des règlements, le prestataire qui a perdu un emploi ou
qui ne peut reprendre un emploi en raison d’un arrêt de travail dû à un
conflit collectif à l’usine, à l’atelier ou en tout autre local où il
exerçait un emploi n’est pas admissible au bénéfice des prestations avant :
a) soit la
fin de l’arrêt de travail;
b) soit, s’il
est antérieur, le jour où il a commencé à exercer ailleurs d’une façon
régulière un emploi assurable.
|
[8]
Section 2
of the Act in turn defines the term “labour dispute” as follows:
|
"labour dispute"
means a 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.
|
« conflit collectif »
Conflit, entre employeurs et employés ou entre employés, qui se rattache à
l’emploi ou aux modalités d’emploi de certaines personnes ou au fait qu’elles
ne sont pas employées.
|
The word
“dispute” (« conflit ») is not defined in the Act.
V. Analysis
A. Standard of Review
[9]
The applicant
submits that the standard of review is reasonableness. I agree. The
determination of whether the work stoppage was attributable to a labour dispute
is a question of mixed fact and law, as it depends on the application of the
facts at hand to the legal term “labour dispute.” In Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190,
the Supreme Court stated that “questions where the legal issues cannot be
easily separated from the factual issues generally attract a standard of
reasonableness” (at para. 52).
[10]
The Supreme Court
also stated that in determining the appropriate standard of review for an
administrative tribunal, courts should first determine whether existing
jurisprudence has already determined the appropriate standard of review in a
satisfactory manner (at para. 62). There are no post-Dunsmuir cases
addressing the exact question at hand, but relevant pre-Dunsmuir
jurisprudence does exist. In Canada (Attorney General) v. Stillo, 2002
FCA 346, [2002] 296 N.R. 209, this Court held that “whether the work stoppage was attributable to a labour dispute as
defined in the Employment Insurance Act is a question of mixed fact and law
that will attract the intervention of this Court only if decided unreasonably.”
B. The Evidence
[11]
There was
evidence to the effect that:
(a) Ms. Benedetti was not a
member of BCTF, and was not a teacher. She was a home support worker and a
member of CUPE, which in turn, decided to protest the passing of legislation by
the B.C. government forcing teachers back to work;
(b) although the teachers
formed a picket line, Ms. Benedetti was not part of it, and indeed she tried to
go to work but was prevented by the picket line;
(c) there were ongoing
negotiations between the teachers and their employer, and the teachers’
contract had been extended pursuant to the B.C. Government legislation;
(d) the decision of the BCTF
to stage a walkout was in reaction to the B.C. Government’s decision to
legislate the teachers back to work.
[12]
It was
open to the Board to accept or reject this evidence. The Umpire decided that
the Board’s decision was “entirely compatible with the evidence” and that “the
Board’s decision was well founded on the evidence before it.”
C. Was the Umpire’s decision reasonable?
[13]
A decision
is reasonable if it “falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law” (Dunsmuir, supra
para. 8 at para. 47). I conclude that the Umpire’s decision falls within such a
range and is accordingly reasonable.
[14]
The applicant
directs the Court to precedent that, it submits, dictates that the Board and
the Umpire erred in their application of the law to the facts. In British
Columbia Teachers’ Federation v. British Columbia (Attorney General), 2003
BCSC 534, [2003] 90 C.L.R.B.R. (2d) 306, members of the BCTF walked out of
their schools to join a rally in protest of the Education Services Agreement
Act, S.B.C. 2002, c. 1. The BCPSEA brought an application before the Labour
Relations Board to have attendance at the rally declared a breach of section 57
of the Labour Relations Code, R.S.B.C. 1996, c. 244, which states that
“[a]n employee bound by a collective agreement . . . must not strike during the
term of the collective agreement.”
[15]
This case
is of no assistance to the applicant because the issue there was whether the
Court or the Board was best positioned to hear the case. Its decision was not
at all intended to interpret even the British Columbia Labour Relations Code, let
alone the federal Employment Insurance Act.
[16]
The
applicant also relies upon André Bonneau, et al. (October 21, 1994), CUB 30448.
In that case, a number of Quebec construction unions formed a protest movement, pursuant to which
workers walked off the job. The protest arose as a result of a bill that sought
to deregulate the residential construction sector, alter the negotiation
process, and extend the collective agreement by a year. The Board of Referees
determined on the facts that this work stoppage did not result from a labour
dispute. The Umpire overturned that ruling, having reviewed it on a standard of
correctness.
[17]
This case
does not assist the applicant either. First, the case, like the case at bar,
was very fact driven. Second, as discussed above, the appropriate standard of
review is now reasonableness, not correctness.
[18]
In the
end, the applicant relies almost entirely on precedent to support its argument.
I have, however, distinguished these cases. Indeed, case law in general is of
little assistance to Ms. Benedetti , as the fact-intensive nature of
decision-making under subsection 36(1) of the Act is determinative of the
outcome. Whether the applicant has met its burden of demonstrating that a work
stoppage is due to a labour dispute is a question that can only be answered
based on an assessment of all of the evidence, which is in turn applied to the
law. This is a classic question of mixed fact and law. Furthermore, I emphasize
the fact that the onus lies with the Commission to demonstrate that Ms.
Benedetti is disentitled to her benefits.
[19]
This Court
is now two levels removed from the original findings of fact. Both the Board of
Referees and the Umpire determined that the Commission did not prove legitimate
grounds for disentitlement. I am of the opinion that this Court is not in a
position to reweigh the evidence presented at the Board of Referees, nor is it
able to say that both the decision of the Board and the decision of the Umpire
were unreasonable.
VI. Disposition
[20]
I would
therefore dismiss the application.
"J.
Edgar Sexton"
“I
agree
K.
Sharlow J.A.”
“I
agree
C. Michael Ryer J.A”
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