Attorney General of Canada v. Silk, [1983] 1 SCR 335

Supreme Court of Canada

Attorney General of Canada v. Silk, [1983] 1 S.C.R. 335

Date: 1983-03-24

The Attorney General of Canada Appellant;

and

Vicky E. Silk Respondent.

File No.: 16772.

1982: June 16, 17; 1983: March 24.

Present: Ritchie, Beetz, McIntyre, Lamer and Wilson JJ.

ON APPEAL FROM THE FEDERAL COURT OF APPEAL

Unemployment insurance—Fishermen—Entitlement to benefits—Regulation prescribing a different requirement for a qualifying period for fishermen—Regulation in conflict with the Act—Regulation ultra vires—Unemployment Insurance Act, 1971, 1970-71-72 (Can.), c. 48, ss. 17(2) [am. 1976-77, (Can.), c. 54, s. 30; 1978-79 (Can.), c. 7, s. 4], 18(1) [rep. & sub. 1976-77 (Can.), c. 54, s. 31(1)], 146(1)—Unemployment Insurance Regulations, C.R.C. 1978, c. 1576, s.85.

Respondent, a fisherman, was denied unemployment insurance benefits on the basis of Regulation 85 of the Unemployment Insurance Regulations, passed under s. 146 of the Unemployment Insurance Act, 1971 extending the application of the Act to fishermen. Regulation 85 limits the qualifying period, during which a fisherman must accumulate 20 weeks of insurable employment to become entitled to benefits, to a period much shorter than the 52 weeks ordinarily required for all other insured persons. The Federal Court of Appeal reversed the Umpire’s decision to deny benefits and held the requirement of s. 85(1)(b)(i) of the Regulation to be in conflict with the statute, and therefore ultra vires. This appeal considers that same issue.

Held: The appeal should be dismissed.

A different qualifying period did not need to be established for fishermen in order to extend the protection of unemployment insurance to them. The harsher requirement established by Regulation 85 was not authorized by s. 146 of the Act. Nothing said in this Court undermined the judgment of the Federal Court of Appeal.

APPEAL from a judgment of the Federal Court of Appeal, [1982] 1 F.C. 795, (1981) 128 D.L.R. (3d) 366, 39 N.R. 523, allowing respondent’s appeal from an order of an Umpire, CUB 6129,

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denying her unemployment insurance benefits. Appeal dismissed.

T.B. Smith, Q.C., and D.J. Rennie, for the appellant.

George M. Cummins, for the respondent.

The judgment of the Court was delivered by

MCINTYRE J.—The issue in this appeal was succinctly stated by Thurlow C.J. in the Federal Court of Appeal in his reasons for judgment which allowed the appeal of the present respondent against the Order of the Umpire, which had denied her unemployment insurance benefits. The Chief Justice said:

The issue raised by the application is whether the requirement of section 85 of the Unemployment Insurance Regulations, C.R.C. 1978, Vol. XVIII, c. 1576, relating to the qualifying period for persons engaged in fishing is ultra vires and invalid in that it prescribes a different requirement from that provided by the Act.

The qualifying period during which an insured person must have accumulated 20 weeks of insurable employment in order to become entitled to benefits is fixed for all but fishermen in s. 18(1) of the Unemployment Insurance Act, 1971, 1970-71-72 (Can.), c. 48, at 52 weeks. Fishermen were brought under the Act by the enactment of s. 146 and by Regulations made thereunder. The relevant part of Regulation 85 is in these terms:

Fishermen Other Than Year-Round Fishermen

85. (1) Subject to this section, where a claimant who is not a year-round fisherman makes a claim for the purposes of establishing a benefit period during or after the week in which November 1st falls and before the week in which May 15th next following falls and proves that

(a) he is not qualified under section 17 of the Act to receive benefits, and

(b) he has the number of weeks of insurable employment mentioned in paragraph 17(2)(a) of the Act

(i) subsequent to the most recent Saturday preceding March 31st that immediately precedes the Sunday of the week in which he makes his claim, or

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(ii) since the commencement date of his last benefit period,

whichever is the shorter,

a benefit period shall be established for him.

(2) Benefits are payable to a claimant for each week of unemployment that falls in a benefit period established for him pursuant to subsection (1) under those provisions of Part II of the Act, other than paragraph 17(2)(b), and section 34, that apply to benefits.

The effect of this regulation in referring to s. 17(2) is to preserve, as a requirement for benefits, the 20 or more weeks of insurable employment, but also to limit the qualifying period by virtue of s. 85(b)(i) to a period much shorter than the 52 weeks ordinarily required. It could be as short as approximately 30 weeks. The question then arises: Are the provisions of Regulation 85 necessary to provide unemployment insurance for fishermen in accordance with s. 146 of the Unemployment Insurance Act, 1971?

At the conclusion of the hearing of this appeal on June 16, 1982 the Court was not satisfied that the issues arising had been adequately canvassed and explained and indicated to counsel that further submissions might be required. The Court did so require and the final additional submissions, all of which were in writing, have recently been received and the Court is now able to deal with this matter.

Section 146(1) of the Act reads as follows:

146. Notwithstanding anything in this Act, the Commission with the approval of the Governor in Council may make regulations for

(a) including as an insured person any person who is engaged in fishing (hereinafter in this section called a “fisherman”), notwithstanding that such person is not an employee of any other person;

(b) including as an employer of a fisherman any person with whom the fisherman enters into a contractual or other commercial relationship in respect of his occupation as a fisherman; and

(c) all such other matters as are necessary to provide unemployment insurance for such fishermen.

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Before the enactment of s. 146, fishermen were not eligible for unemployment insurance benefits. It is clear from the words of the provision that its purpose was to extend the application of the Act to fishermen.

Thurlow C.J. reached the conclusion that it was not necessary for the purpose of extending unemployment insurance protection to fishermen to establish a different qualifying period for them. He was of the view that it was a harsher requirement than that faced by other insured persons which was not authorized by s. 146. He said: In my opinion, therefore, the requirement of subparagraph 85(1)(b)(i) of the Regulations that the twenty-weeks of insurable employment be within a period commencing with the last Sunday of March is in conflict with the statute and is ultra vires and invalid.

He directed that the Umpire’s decision should be set aside and the respondent’s claim be re‑determined by him on the basis that the qualifying period be the 52-week period immediately preceding the filing of her claim. This, I understand, has already been done.

I am in complete agreement with the reasons for judgment of Thurlow C.J. and with his disposition of the case and I would adopt his reasons in their entirety. In my view, nothing has been said in this case which casts any doubt upon his judgment. I would dismiss the appeal with costs.

Appeal dismissed.

Solicitor for the appellant: R. Tassé, Ottawa.

Solicitor for the respondent: George M. Cummins, St. Johns.