Date: 20040622
Docket: A-375-03
Citation: 2004 FCA 241
CORAM: LÉTOURNEAU J.A.
SHARLOW J.A.
MALONE J.A.
BETWEEN:
FRANK BATTISTA
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
Heard at Vancouver, British Columbia on June 21, 2004.
Judgment delivered at Vancouver, British Columbia on June 22, 2004.
REASONS FOR JUDGMENT BY: LÉTOURNEAU J.A.
CONCURRED IN BY: SHARLOW, MALONE JJ.A.
Date: 20040622
Docket: A-375-03
Citation: 2004 FCA 241
CORAM: LÉTOURNEAU J.A.
SHARLOW J.A.
MALONE J.A.
BETWEEN:
FRANK BATTISTA
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
LÉTOURNEAU J.A.
[1] The applicant challenges by way of judicial review two related decisions of Umpire Marin. The first one rendered on August 7, 2002 dismissed the applicant's appeal against the decision of a Board of Referees (Board).
[2] Following a hearing, the Board concluded that the applicant had failed to establish that he did not participate in a labour dispute within the meaning of subsection 36(4) of the Employment Insurance Act, S.C. 1996, c. 23, as amended (Act). As a result, the applicant was disentitled to unemployment insurance benefits pursuant to subsection 36(1) of the Act.
[3] The applicant sought a reconsideration of the Umpire's decision pursuant to section 120 of the Act. On April 14, 2003 the Umpire denied the request for reconsideration and confirmed his earlier decision. On July 8, 2003, our colleague Décary J.A. ordered that the two applications for judicial review be merged into one.
[4] Throughout the process, the applicant was self represented. His Application Record before us contained a number of exhibits to which counsel for the respondent objected on two grounds: the material filed with the Application Record was not supported by an affidavit from the applicant and some of the material was not before the Umpire. The panel explained to the applicant that we were bound by the record as it existed before the Umpire but took the respondent's objection under reserve. The applicant was allowed to make his submissions with reference to the impugned material. However, in view of the conclusion that I have come to on the merits of the application for judicial review, there is no need to rule on the respondent's objection.
[5] The relevant provisions of the Act read:
| Labour disputes
36. (1) 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.
Non-application
(4) This section does not apply if a claimant proves that the claimant is not participating in, financing or directly interested in the labour dispute that caused the stoppage of work.
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Conflits collectifs
36. (1) 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.
Non-application
(4) Le présent article ne s'applique pas si le prestataire prouve qu'il ne participe pas au conflit collectif qui a causé l'arrêt de travail, qu'il ne le finance pas et qu'il n'y est pas directement intéressé.
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[6] In his decision of August 7, 2002, the Umpire quoted the findings of the Board and found them exhaustive. The Board rejected the Commission's contention that the applicant had a direct interest in the labour dispute that caused the stoppage of work. The Commission conceded that the applicant was not financing the dispute.
[7] However, the Board found that the applicant had participated in the labour dispute. Here is what the Board had to say on this issue. Referring to the applicant's participation, the Board writes at pages 292 and 293 of the Respondent's Record:
His participation was confirmed when he accepted strike support payment from 8-21 October 2000 (Exhibit 11). His Union's national constitution and his Local's regulations require solidarity within the CUPE Union and the claimant honoured is obligation by staying away from work until he was designated as an ESO worker at which time he reported for work using a picket pass on 1 & 2 November 2000. The claimant cites the Supreme Court of Canada in Hills v. Attorney General of Canada (A-175-84). Upon review the Board concluded that A-175-84 was concerned with the provision in subsection 36(4) that is not at issue in this appeal i.e. financing. The claimant belonged to a union Local which negotiated with the LRB on the ESO in conjunction with Local 15 who ultimately struck against the City of Vancouver (Exhibit 3-15). The Federal Court v. Jeanette Black et al A-552-00 that is a similar case which considered participation in states in part: (28)
"In order to determine whether the claimant is entitled to the benefit of subsection 36(4) as an innocent bystander swept up in another's dispute, it seems to me relevant to consider the conduct of the claimant and her bargaining agent in the period preceding the issue of the ESO. If a Union has been actively involved in the labour relations events leading up to the ESO, its members cannot later claim that they are entitled to employment insurance benefits because they were not personally participating in the dispute, regardless of the degree of the union's involvement or its interest in the dispute, and all of the other surrounding circumstances".
[8] The facts relied upon by the Board to support its finding of participation, i.e. receipt of strike support payments, solidarity of his Local union with the CUPE, the claimant's absence from work and the involvement of the applicant's Local union in the negotiations with the B.C. Labour Relations Board on the Essential Services Order in conjunction with Local 15 who eventually went on strike against the City of Vancouver, were all supported by the evidence.
[9] In Black v. Canada [2002] 1 F.C. 468, at paragraph 28 (F.C.A.), this Court gave a definition of "participating" which included the very same type of involvement as the applicant and his Union in the present instance. The Board was bound by the decision of this Court and made no error in following it since the facts were indistinguishable.
[10] The Board's conclusion that the applicant participated in the dispute was a mixed finding of fact and law. Not only was it a reasonable conclusion in the circumstances, but it was the correct one. The Umpire rightly refrained from intervening.
[11] As requested pursuant to section 120 of the Act, the Umpire reconsidered his decision with a view to rescinding or amending it. He concluded that the applicant brought no new facts and showed no mistake on material facts which would justify amendments to or rescission of his earlier decision. I see no error in this conclusion.
[12] The applicant expected the Umpire to embark upon an investigation of all the files of his co-workers who allegedly received unemployment benefits during the same strike. This was not and is not the role of an Umpire seized with an appeal under section 117 of the Act. The Umpire's role was to review the merits of the decision of the Board and, absent any error, to dismiss the appeal.
[13] Finally, the applicant complained that his loss of unemployment benefits was the fault of his employer. He contended that he should not be penalized for the employer's failure to seek, in a timely fashion, the Essential Services Oder which legally allowed him eventually to cross the picket lines. As his employer delayed its demand for such Order, he was kept out of work and forced to seek unemployment benefits. There is, in my respectful view, no causal link between the employer's act and the denial of the unemployment benefits. The applicant was excluded from the benefits not because of the employer's act, but because of his participation in the strike.
[14] I would dismiss the application for judicial review without costs in the circumstances.
(Sgd.) "Gilles Létourneau"
J.A.
"I agree" (Sgd.) "Karen R. Sharlow"
J.A.
"I agree" (Sgd.) "B. Malone"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-375-03
STYLE OF CAUSE: Frank Battista v AGC
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: June 21, 2004
REASONS FOR JUDGMENT: LÉTOURNEAU J.A.
CONCURRED IN BY: SHARLOW, MALONE, JJ.A.
DATED: June 22, 2004
APPEARANCES:
SOLICITORS OF RECORD:
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