Canada Employment and Immigration Commission v. Dallialian, [1980] 2 SCR 582

Supreme Court of Canada

Canada Employment and Immigration Commission v. Dallialian, [1980] 2 S.C.R. 582

Date: 1980-06-03

Canada Employment and Immigration Commission Appellant;

and

Isaac Dallialian Respondent.

1980: January 30 and 31; 1980: June 3.

Present: Pigeon, Dickson, Beetz, Estey and Chouinard JJ.

ON APPEAL FROM THE FEDERAL COURT OF APPEAL

Interpretation—Accrual of right—Retroactivity excluded—Unemployment insurance—Age of entitlement reduced—Unemployment Insurance Act, 1971, 1970-71-72 (Can.) c. 48, ss. 31 (amended by 1974-75-76 (Can.) c. 80, s. 10) and 38—Unemployment Insurance Entitlements Adjustment Act, 1976-1977 (Can.) c. 11, s. 2—Interpretation Act, R.S.C. 1970, c. I-23, s. 35(c).

The issue arises by reason of an amendment to the Unemployment Insurance Act, which reduced the age of entitlement to benefits from 70 to 65 years and which took effect on January 1, 1976, at which time the respondent had attained the age of 65 but had not reached the age of 70 years. He had established a benefit period commencing July 13, 1975, at a time, therefore, when the Act provided for the payment of benefits until the attainment of the age of 70. The respondent received benefits during the period from July to December 1975. The Unemployment Insurance Commission considered that the amendment to the Act of January 1, 1976, terminated the right to benefits after the attainment of the age of 65 years and invited claimants in this situation to claim a pension under the Pension Plan. On February 1, 1976, the respondent received a pension under the Quebec Pension Plan which, by the statute as it existed prior to January 1, 1976, disentitled the respondent to receive further benefits. The respondent’s maximum benefit period of fifty-one weeks expired on July 6, 1976. The respondent attained the age of 70 years on December 18, 1976. The appellant paid the respondent benefits from July 13, 1975, to February 1, 1976. The Board of Referees and the Umpire confirmed this decision. The Federal Court of Appeal set aside the decision and directed that the matter be returned to the Commission for determination in accordance with the law as it existed from and after January 1, 1976, in accordance with its interpretation holding that the entitlement age and receipt of the pension were not causes for refusal of benefits to a claimant who was over 65 years of age on January 1, 1976.

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Held: The appeal should be allowed.

Per Dickson, Estey and Chouinard JJ.: There are four possible terminal dates for the payment of benefits to the respondent under the Act: (a) January 1, 1976, because the respondent then being over 65 was ineligible to receive payments under the Act as it was in force from and after that date; (b) February 1, 1976, when a retirement pension became payable to the respondent under the Quebec Pension Plan which was a disqualifying event under the statute prior to the amendment; (c) July 6, 1976, with the expiry of the benefit period; (d) December 18, 1976, the respondent’s seventieth birthday, as prescribed by the Act prior to the amendment. Date (a) cannot be retained, for the amendment clearly refers to those who will attain the age of sixty-five in the future. Date (d) cannot be retained, for the statute before and after the 1976 amendment limits benefits to a fifty-one week period. The issue therefore narrows down to whether or not the entitlement to receipt of a Quebec pension terminates benefits effective February 1, 1976, even though this disqualification was removed from the Act with effect January 1, 1976. To construe the statute as entitling the respondent to benefits beyond February 1, 1976, would be to attribute to the amending Act a greater entitlement to a person over 65 years of age than such a person had under the Act prior to the amendment notwithstanding that the clear purpose of the amendment was to terminate entitlement of the earlier age of 65. It is reasonable to read the new s. 31 of the Act as having been adopted by Parliament in the light of s. 35(c) of the Interpretation Act: when read together, the amending Act and the Interpretation Act continue the benefit assured to the respondent under the pre-1976 Act for the month of January 1976 but leave him subject to the disqualification of s. 31(3)(b) of the Act as it stood prior to the amendment. Therefore, the respondent’s right to benefits came to an end on January 31, 1976, when a retirement pension became payable to him under the Quebec Pension Plan. On the other hand, the 1977 Unemployment Insurance Entitlements Adjustment Act does not apply to the present proceedings, as the respondent did not have his “entitlement to benefit terminated” by reason of the new statute but by reason of the pre-existing law.

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Per Pigeon and Beetz JJ.: The conclusion of Estey J. on the interpretation of the legislative provisions is unassailable. Moreover, the Umpire in the case at bar correctly concluded that the claimant had no remedy for the injury caused to him by the appellant’s actions. While it must be admitted that the courts are strictly required to apply the law as written, it is regrettable that the claimants were left without remedy for an obvious injustice. It is illogical to relieve the claimants, by means of a special statute, from their failure to appeal in time because the Commission misled them as to the effect of the statute, and not to relieve them also from the forfeiture due to the pension application which it urged them to make for the same reason. These claimants were unfairly deprived of the difference between the pension and the benefit, but only Parliament could still remedy their situation.

Bell Canada v. Earl Palmer, [1974] 1 F.C. 186; In re Kleifges, [1978] 1 F.C. 734; McDoom v. Minister of Manpower and Immigration, [1978] 1 F.C. 323; Martinoff v. Gossen, [1979] 1 F.C. 327, [1979] 1 F.C. iv; Danias Gervais, (Nov. 12, 1976) CUB 4417; Minister of National Revenue v. Gustavson Drilling (1964) Ltd., [1972] F.C. 92 and 1193, [1977] 1 S.C.R. 271; M.N.R. v. Inland Industries Limited, [1974] S.C.R. 514, referred to.

APPEAL from a judgment of the Federal Court of Appeal[1], setting aside the decision of the Umpire[2]. Appeal allowed.

Paul M. Ollivier, Q.C., and Jean-Marc Aubry, for the appellant.

Jean Barrière, for the respondent.

English version of the reasons of Pigeon and Beetz JJ. delivered by

PIGEON J.—I have had the advantage of reading the opinion of Estey J. His conclusion on the interpretation of the legislative provisions in question I find unassailable. I also note that it agrees with the view expressed by Addy J., sitting as Umpire in Danias Gervais[3], relying on the judgment of Cattanach J. in Minister of National

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Revenue v. Gustavson Drilling (1964) Ltd.[4]

I must also agree that Marceau J., sitting as Umpire in the case at bar[5], correctly concluded that the claimant had no remedy for the injury caused to him by the actions of the Commission. He described this injury and excluded it from consideration as follows:

First, it is criticized for having given the claimants only the bare information that it had decided to stop payments when the amendment came into force, omitting to give any reason, or to notify the persons concerned of their right to contest the decision. Next, it is pointed out that the Commission itself urged the claimants to claim their due from the Quebec Pension Board, and was therefore directly responsible for creating the situation that was held against them. Lastly, surprise is expressed that beginning in 1977, the Commission had rendered decisions imposing retroactive disentitlement on grounds which they had long known existed.

It is clear that the conduct of the Commission and the actions of its officers have some extremely regrettable aspects which could well be invoked to cause the flood of sympathy for the claimants that I have already mentioned. But I fail to see how they can be the basis for arguments with any legal weight. The Commission is a body whose role is strictly to administer the Act, and the rights of individuals under the Act cannot result solely from the Commission’s conduct, however deserving of criticism or however regrettable such conduct may be. Certainly it is true that the Commission, like any other government body, could be held responsible for making good damage caused by its mistakes and those of its officers, but such an obligation would follow from the application of the principles of administrative responsibility: it could not be invoked in order to contravene the provisions of the very Act the Commission had been created to administer. No one disputes that the Commission committed an error of interpretation, but it was a pardonable error and one made in good faith. The notices it sent to the claimants were brief, but were amplified later, and the officers gave advice unstintingly and with the best intentions to those who consulted

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them; it invoked, after the event, a reason for disentitlement which it had long known to exist, but it had no choice, seeing that it was then responsible for determining, with the help of new light thrown on the matter by the decision of Addy J., what rights—both retroactively and in the future—the claimants could exercise; it held against these claimants a situation which it had created itself—but one that was none the less real and could not be disregarded. At all events, whether the conduct of the Commission is excusable or not, whether the way it proceeded is understandable or not, it is certain that, however regrettable its actions may have been, they may not be invoked as the source of rights under the Unemployment Insurance Act.

As Marceau J. noted, following upon the decision of Addy J., Parliament adopted a special statute to remedy the injustice caused to claimants who had lost their rights by submitting to the erroneous decision of the Commission to treat those rights as extinguished by s. 31 of the Unemployment Insurance Act which came into force on January 1, 1976. Here again, I have to approve the reasoning of Marceau J. on this point:

The Act of May 9, 1977 is very brief; its entire substance is contained in one section, the significant parts of which read as follows:

2. Notwithstanding section 102 of the Unemployment Insurance Act, 1971, the Unemployment Insurance Commission shall consider the entitlement to benefit of any person, whether or not he has appealed any decision relating thereto, who…

(a)

(b)

(c)

and shall calculate the amount of money, if any, to which that person is entitled under the provisions of the Unemployment Insurance Act, 1971, as that Act read prior to January 1, 1976, and pay that amount to him.

In the claimant’s view, Parliament’s intention in passing this unusual Act was to restore to them a right of which they had been unjustly deprived. In the eyes of the Commission, Parliament was confirming that the entitlement to benefit in the cases referred to was to be considered according to the provisions of the Act as they read before January 1, 1976. In my opinion, neither the claimants nor the Commission can find in the May 9,

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1977 Act the conclusive support they are looking for. If Parliament had wanted to give a definite decision in the claimants’ favour it would not have merely restored to them a right of appeal which allowed them to have their entitlement reconsidered. On the other hand, if Parliament had wanted to confirm definitively that the said entitlement was required to be considered according to section 31(1) as it used to read, it is difficult to understand why its sole mention of the old version of the Act was in reference to calculating the “amount of money, if any, to which that person is entitled”. Perhaps it is simply a question of wording—perhaps the reference to the old version of the Act covered at one and the same time the determination of entitlement and the calculation of the amount of benefit, but this is a case where doubt ought to militate against an automatic, unquestioning decision. Moreover, it is quite understandable that, while wanting to restore the right of appeal and put an end to all discussion about the benefit rate, Parliament had no wish to act as substitute, in the matter of entitlement determination, for the general principles that apply when current legislation conflicts with previous legislation.

While admitting that the courts are strictly required to apply the law as written and may not depart from the clear meaning of the provisions enacted by Parliament in order to give effect to a presumed intention which is not expressed I cannot but express regret that the claimants were thus left without remedy for an obvious injustice. I cannot believe that the special statute was adopted merely to the end that claimants in Dallialian’s situation, instead of being prevented from appealing the Commission’s decision, be allowed to do so only to have the umpire tell them that they are without a remedy, because the Commission acted in good faith in advising them that they were no longer entitled to benefits and urging them to apply for the retirement pension which they would lose if they did not claim it. It is illogical to relieve the claimants from their failure to appeal in time because the Commission misled them as to the effect of the statute, and not to relieve them also from the forfeiture due to the pension application which it urged them to make for the same reason. However, this is how these claimants were unfairly deprived of the difference between the pension and the benefit. Their situation is obviously quite different from that of the industrialist who failed to obtain the anticipated tax benefits in issue in

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M.N.R. v. Inland Industries Limited[6]. These claimants are employees who were entitled to rely on the information which a government agency properly considered it had a duty to provide them. Parliament considered that their situation ought to be remedied, and it is for Parliament to decide whether it is now too late to do so effectively.

I therefore conclude as Estey J. that the appeal should be allowed, the judgment of the Federal Court of Appeal should be reversed and the decision of the Umpire should be restored. In accordance with the terms of the order granting leave, the appellant will pay respondent’s costs as between solicitor and client.

The judgment of Dickson, Estey and Chouinard JJ. was delivered by

ESTEY J.—This is an appeal from a judgment of the Federal Court of Appeal which sets aside under s. 28 of the Federal Court Act a decision of an Umpire sitting on an appeal from a decision of the Unemployment Insurance Commission on an application for benefits under the Unemployment Insurance Act, hereinafter referred to as the Act. The issue arises by reason of an amendment to the Act enacted in 1976 which reduced the age of entitlement to benefits from 70 to 65 years and which took effect on January 1, 1976, at which time the respondent had attained the age of 65 but had not reached the age of 70 years. It will be helpful to set out the relevant parts of the statute before and after the amendment in question.

UNEMPLOYMENT INSURANCE ACT S.C. 1970-71-72, c. 48, s. 31 31. (1) Notwithstanding section 19, an initial benefit period shall not be established for a claimant if at the time he makes an initial claim for benefit (a) He is seventy years of age or over, or (b) a retirement pension has at any time become payable to him under the Canada Pension Plan or Quebec Pension Plan.

AMENDMENT being S.C. 1974-75-76, c. 80, s. 10 10. Section 31 of the said Act is repealed and the following substituted therefor: “31. (1) Notwithstanding section 19, an initial benefit period shall not be established for a claimant if at the time he makes an initial claim for benefit he is sixty-five years of age or over. (2) An insured person who makes a claim for benefit and proves that he (a) is sixty-five years of age or over,

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(2) When a major attachment claimant who is seventy years of age or over or to whom a retirement pension has at any time become payable under the Canada Pension Plan or Quebec Pension Plan makes an initial claim for benefit and an initial benefit period would otherwise be established for him, an amount equal to three times the weekly rate of benefit at the rate applicable to him under section 24 shall forthwith be paid to him and section 23 does not apply in respect of the claimant. (3) Any benefit period established for a claimant under this Part if not earlier terminated under this Part, terminates at the end of the week in which (a) he attains the age of seventy years, or (b) a retirement pension at any time becomes payable to him under the Canada Pension Plan or Quebec Pension Plan, whichever first occurs.

(b) has had twenty or more weeks of insurable employment (i) in the fifty-two week period immediately preceding the week in which he makes the claim, or (ii) in the period between the commencement date of his last initial benefit period and the week in which he makes the claim, whichever period is the shorter, and (c) has not previously been paid an amount under this subsection as it now reads or as it read before January 1, 1976, shall, subject to sections 48 and 49, be paid an amount equal to three times the weekly rate of benefit provided under section 24. (3) Subsections (2) to (5) of section 18 apply to the period mentioned in subparagraph (i) of paragraph (b) of subsection (2) with such modifications as the circumstances require. (4) Any benefit period established for a claimant under this Part, if not earlier terminated under this Part, terminates at the end of the week in which he attains the age of sixty-five years. (5) If the total benefit paid to a major attachment claimant in a benefit period terminated under subsection (4) is less than an amount that is equal to three times the weekly rate of benefit payable to him in that benefit period, that claimant shall, subject to sections 48 and 49 but notwithstanding any other provision of Part II, be paid benefit at the weekly rate of benefit payable to him in that benefit period for the number of weeks that is required to ensure that the total benefit paid to him in respect of that benefit period is not less than the aforementioned amount.”

The sequence of events giving rise to this appeal can be summarized as follows:

1. The respondent was born on December 18, 1906, and accordingly attained the age of 65 on December 18, 1971, and the age of 70 on December 18, 1976.

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2. The respondent established via the procedure prescribed by the Act a benefit period commencing July 13, 1975.

3. At the time when the respondent’s benefit period was established, the Act provided for the payment of benefits until the attainment of the age of 70.

4. The respondent received benefits during the period from July to December 1975.

5. With effect January 1, 1976, the above-noted amendment to the Unemployment Insurance Act terminated the right to benefits after the attainment of the age of 65 years.

6. On February 1, 1976, the respondent received a pension under the Quebec Pension Plan which, by the statute as it existed prior to January 1, 1976, disentitled the respondent to receive further benefits under the Act.

7. The respondent’s maximum benefit period under the statute expired on July 6, 1976, being a fifty-one week period (s. 38 of the Act).

8. The respondent attained the age of 70 years on December 18, 1976.

There are four possible terminal dates for the payment of benefits to the respondent under the Act:

(a) Benefits end January 1, 1976, because the respondent then being over 65 was ineligible to receive payments under the Act as it was in force from and after that date.

(b) benefits end on February 1, 1976, when a retirement pension became payable to the respondent under the Quebec Pension Plan which was a disqualifying event under the statute as it existed prior to the amendment.

(c) Benefits end on July 6, 1976, with the expiry of the benefit period.

(d) Benefits expire on December 18, 1976, the respondent’s seventieth birthday, as pre-

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scribed by the Act prior to the amendment.

The Commission paid the respondent the benefits to which he was entitled under the Act from the commencement of the benefit period in July 1975 until receipt of the Quebec Pension February 1, 1976. The Board of Referees and the Umpire have confirmed this decision. The Federal Court of Appeal has set aside the decision of the Umpire and directed that the matter be returned to the Commission for determination in accordance with the law as it existed from and after January 1, 1976, and in particular directed that the accrual of the right to receipt of a Quebec pension was, after the effective date of the amendment, no longer a disqualifying event. It should be noted that the Chief Justice of the Court of Appeal has indicated that the Umpire’s decision confirmed a decision of the Commission that the respondent was not entitled to benefits after January 1976 and this, while somewhat ambiguous, must be read as agreeing with Pratte J. who wrote the reasons for the court below and who stated that the decision of the Commission, confirmed on appeals to the Board of Referees and the Umpire, continued the benefits payable to the respondent until accrual of the right to receive the Quebec pension on January 31, 1976. Pratte J. in reaching his conclusion that benefits did not terminate at the end of January 1976 stated:

However, careful reading of this provision, which was enacted on January 1, 1976, shows that it applies exclusively to persons who reach the age of sixty-five years after that date, and not to those who, like the applicant, reached it long before.

The reason for the Umpire’s decision is that, like other Umpires before him, he felt that when the Commission established a benefit period for an insured person that person thereby acquired a right to the period thus established, the length and conditions of which should therefore normally be governed by the Act as it existed at the time the period was established. In my view, this is incorrect. The establishment of a benefit period does not give rise to any right. It is only a

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formality that must necessarily be carried out so that an insured person can subsequently acquire the right to receive benefits.

Jackett C.J. concurred in the result and went on to add that s. 35(c) of the Interpretation Act, dealing with the effect of the repeal of an enactment by Parliament, had no application in these circumstances. The learned Chief Justice referred to:

…[the] rule of interpretation to be found in the Interpretation Act (section 3(1) and section 35(c)), that, unless a contrary intention appears, the repeal of an enactment does not “affect any right …acquired …(or) accruing …under the enactment repealed”. In my view [he continued], notwithstanding my great respect for the contrary view of the Umpires, this rule of interpretation has no application. The only substantive “right” conferred on an insured person, as I read the statute, is that right which has accrued when those things have happened that entitle him to be paid benefit, and the provision that a person for whom a benefit period is established is “entitled to benefit in accordance with this Part” merely creates an expectancy that is no different in kind from the expectancy of an insured person who is still employed.

Reverting to the four alternatives set out above, there is no difficulty in disposing of the first possibility, namely that the benefit period ends January 1, 1976, for the reason that on that date (the effective date of the amendment) the respondent was already over 65 years of age. Subsection (4) of the new s. 31 provides for termination only at the end of the week in which an applicant “attains the age of sixty-five years” and the statute clearly assumes this event will be in the future. This birthday did not occur in the week of January 1, 1976, or thereafter, the respondent having attained the age of 65 in December 1971. As he had not yet attained the age of 70 years the pre-existing statute did not disentitle him on the grounds of age. A retirement pension had not at that date become payable to him under either the Canada or Quebec Pension Plans. Accordingly, the respondent suffered no disentitlement on January 1, 1976, which would terminate his benefits at that date.

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Two of the other four alternative interpretations relate to a continuation of the benefits until July or December 1976. The statute before and after the 1976 amendment limits benefits to the fifty-one week period ending in July 1976 and accordingly, the issue really narrows down to whether or not the entitlement to receipt of a Quebec pension terminates benefits effective February 1, 1976, even though this disqualification was removed from the Act with effect January 1, 1976.

It is difficult to construe the statute as entitling the respondent to benefits beyond February 1, 1976, on the accrual of the pension entitlement because to do so would be to attribute to the amending Act a greater entitlement to a person over 65 years of age than such a person had under the Act prior to the amendment. The Act before amendment stipulated disentitlement either on the attainment of 70 years of age or the entitlement to a pension under the Quebec Pension Plan. By disregarding the second disentitlement in the period after the amendment, persons in the position of the respondent would receive, by reason of the amending statute, benefits greater than under the prior statute, notwithstanding that the clear purpose and effect of the amendment was to terminate entitlements at the earlier age of 65.

Crucial to the disposition of this appeal, therefore, is the proper classification in law of the nature of the respondent’s rights under the Act on December 31, 1975, which is the last date prior to the commencement of the amended s. 31. This is so because unless s. 35 of the Interpretation Act alters the position of the applicant in law in this regard, the Act as amended is the only applicable law during 1976 under which the respondent’s rights remain to be determined, and he would clearly be entitled to receive benefits without regard to the commencement of his right to a pension under the Quebec Pension Plan since that

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disqualification had been removed from the law. Section 35(c) of the Interpretation Act, R.S.C. 1970, c. I-23 provides as follows:

35. Where an enactment is repealed in whole or in part, the repeal does not…

(c) affect any right, privilege, obligation or liability acquired, accrued, accruing or incurred under the enactment so repealed;

If the entitlement of the respondent under the Act on December 31, 1975, amounts to a “right [or] privilege …acquired, accruing …under the enactment …repealed”, then the repeal would not affect the respondent’s position in law. I cannot, with the greatest of respect, reach the same conclusion as that reached by the Chief Justice of the Federal Court as quoted above, namely that the respondent’s position under the Act prior to amendment was the same as an employee still working for an employer and who continues contributing under the Act. Here the respondent had, in such an analogy, already ceased working prior to the amendment. His rights to benefits had already arisen during a benefit period which commenced prior to the effective date of the amendment. He was in receipt of benefit payments at the effective date of the amendment. He therefore, on December 31, 1975, was enjoying a right or a privilege which had accrued under the repealed enactment and, for what it is worth, had accrued by reason of his contributions which made him eligible to apply and to have a benefit period prescribed for him.

This, in my view, is precisely the condition contemplated by Parliament when it adopted s. 35(c). The amending Act includes no transitional provision in s. 31 for the class of persons which includes the respondent, namely those who had, prior to the effective date of the amendment, attained the age of 65 years but had not reached 70 years of age. There is nothing in the new version of s. 31 which clearly strips the respondent and persons in this class of their right to continue to enjoy benefits immediately upon the introduction of the amendment. On the other hand, there is certainly no language to be found in the amendment which increases the rights of the respondent by authorizing the payment to him of benefits

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after he has become entitled to a Quebec pension. It is reasonable, in my view, to read the new s. 31 as having been adopted by Parliament in the light of s. 35(c) of the Interpretation Act. When read together, the amending Act and the Interpretation Act continue the benefit assured to the respondent under the pre-1976 Act for the month of January 1976 but leave him subject to the disqualification of s. 31(3)(b) of the Act as it stood prior to amendment. Therefore, with the greatest of respect to the court below which adopted a contrary view, the respondent’s right to benefits came to an end on January 31, 1976, when a retirement pension became payable to him under the Quebec Pension Plan.

Section 35 has been the subject of consideration by the courts in recent years: Bell Canada v. Earl Palmer[7]; In re Kleifges[8]; McDoom v. Minister of Manpower and Immigration[9] and Martinoff v. Gossen[10]. In the first three cases cited, the courts have applied s. 35(c) to preserve both substantive and procedural rights which had existed prior to the repeal of a statutory provision in an amending act. In each of those cases the accrued right was given effect subsequent to the repeal of the provision establishing the right. Only in the fourth decision would there appear to be any doubt as to the purpose of s. 35(c) in these circumstances. The court was there concerned with the right of a certain class of persons to receive a licence for the possession of a weapon. The effect of the repeal in question was to remove the right of the licensing authority to grant a licence to a person in the prescribed class. The court found that an applicant who made application prior to the repeal of the provision had no right to receive a licence after the repeal, notwithstanding s. 35 of the Interpretation Act. This, of course, is a different circumstance than existed in the other three cases or in the appeal now before this Court. In the Martinoff case, supra, the licence-issuing official had been

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deprived of his authority to issue the licence in question by a specific statutory provision adopted by Parliament after the applicant had filed his application for a licence. The court was powerless to command the issuance of a licence because Parliament had ordained in precise language that no authority existed for the issuance thereafter of such licences. Here Parliament has not, in the 1976 amendment, specified that the respondent shall receive no benefits after the effective date of the repeal. Parliament has not specified that the respondent shall be deprived of any accumulated entitlement existing on the effective date of the amendment. Parliament has not removed the authority or obligation in the administrators of the Act to make payment of these benefits up to February 1, 1976. All of these observations apply equally to the continuation of the disqualifying element of the old s. 31(3)(b).

There remains to be considered the impact, if any, of S.C. 1976-77, c. 11, which came into force on May 12, 1977. This statute, entitled the Unemployment Insurance Entitlements Adjustment Act, directs the Unemployment Insurance Commission to take under consideration certain entitlement to benefits under the Act whether or not the person in question has previously appealed his entitlements. Subsection (2) of the 1977 Act directs the Commission to grant benefits after January 1, 1976, as if the amendments to the Act which took effect January 1, 1976, had not been enacted, if:

(a) the initial benefit period had been established prior to January 4, 1976;

(b) the applicant had his entitlement to benefit terminated as a result of s. 10 which introduced the new s. 31 providing for the termination of benefits at the age of 65; and,

(c) the applicant has asked that his entitlement to benefit be ‘considered’ either before or within 12 months after May 12, 1977.

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Here the respondent lost his entitlement to benefit on January 31, 1976, because on that date a pension had become payable to him under the Quebec Pension Plan, and by the pre‑existing s. 31 this terminated his benefit period. Thus the respondent did not have his “entitlement to benefit terminated” by reason of s. 10 of the 1977 statute but by reason of the pre-existing law. Consequently, c. 11 has no application to the respondent in these proceedings.

Chief Justice Jackett reached the same result by concluding that s. 2 of c. 11 applies only to persons under the age of 65 on January 1, 1976, because they alone may attain the age of 65 years of age after January 4, 1976, (the actual date specified in c. 11) and before the automatic expiry of c. 11 in May 1979. Expressed either way, c. 11 has no bearing on this proceeding.

In the result I conclude that s. 35(c) of the Interpretation Act must be applied in the construction of the Act as amended in the determination of the rights of the respondent, and on such application the two statutory provisions when read together entitle the respondent to payment of benefits up to and including January 31, 1976, but not thereafter.

I would therefore allow the appeal, set aside the order of the Federal Court of Appeal and restore the order of the Umpire. In accordance with the terms of the order granting leave, the appellant will pay respondent’s costs as between solicitor and client.

Appeal allowed.

Solicitor for the appellant: Roger Tassé, Ottawa.

Solicitors for the respondent: Barrière, Neuer & Lamarche, Lachine, Quebec.