British Columbia Maritime Employers Association v. Wellicome, docket A-690-96

     Date: 19971211

     Docket: A-690-96

IN THE MATTER OF THE Unemployment Insurance Act, R.S.C. 1985, c. U-1

AND IN THE MATTER OF an appeal made by Cliff Wellicome to an Umpire pursuant to section 80 of the Act

CORAM:      STRAYER J.A.

DESJARDINS J.A.

McDONALD J.A.

BETWEEN:

     BRITISH COLUMBIA MARITIME EMPLOYERS ASSOCIATION

     Applicant

     - and -

     CLIFF WELLICOME and

     THE DEPUTY ATTORNEY GENERAL OF CANADA

     Respondents

Heard at Vancouver, British Columbia, on Thursday, November 6, 1997

Judgment rendered at Ottawa, Ontario, on Thursday, December 11, 1997

REASONS FOR JUDGMENT BY:      DESJARDINS J.A.

CONCURRED IN BY:      STRAYER J.A.

     McDONALD J.A.

     Date: 19971211

     Docket: A-690-96

IN THE MATTER OF THE Unemployment Insurance Act, R.S.C. 1985, c. U-1

AND IN THE MATTER OF an appeal made by Cliff Wellicome to an Umpire pursuant to section 80 of the Act

CORAM:      STRAYER J.A.

DESJARDINS J.A.

McDONALD J.A.

BETWEEN:

     BRITISH COLUMBIA MARITIME EMPLOYERS ASSOCIATION

     Applicant

     - and -

     CLIFF WELLICOME and

     THE DEPUTY ATTORNEY GENERAL OF CANADA

     Respondents

     REASONS FOR JUDGMENT

DESJARDINS J.A.

[1]      This is an application for judicial review of a decision of an umpire acting pursuant to the Unemployment Insurance Act¹ (the "Act") whereby he concluded that the claimant was not disentitled from unemployment benefits pursuant to subsection 31(1) of the Act,² at a time when other longshoremen were on strike.

[2]      The key issue to be decided is whether this case is distinguishable from the decision of this Court in White v. Canada (C.A.).³

The facts

[3]      The applicant is a party to a collective agreement with the International Longshoremen's and Warehousemen's Union (ILWU) which represents longshore workers employed by the applicant's members. The event which surrounds this application coincides with a long-lasting dispute between the Longshoremen's Union (the "union") and the British Columbia Maritime Employers Association (the "employers' association") in the ports of British Columbia in the years 1993-1994. After lengthy negotiations, the contract between the union and the employers' association expired on December 31, 1992, without any agreement having been reached. On November 1993, a vote was taken by the members of the union and 95% of the members voted in favour of a strike. The strike finally began in several ports on January 27, 1994, after a mediator unsuccessfully tried to resolve the issue, and extended to all ports the next day, on January 28, 1994. On February 9, 1994, Parliament introduced legislation ending the strike.

[4]      The claimant is a longshoreman but not a member of the regularly scheduled crew. He is not a union member because the union restricts the number of members of the approximately four thousand longshoremen working under the collective agreement in the six port areas of the province. Only about twenty-one hundred are union members. The others are casuals. Conditions of employment for non-union casual employees are covered under the collective agreement. As a result, the claimant benefitted from the terms of the settlement which was later signed between the union and the employers' association and received retroactive pay under the new agreement.

[5]      Casual workers, such as the claimant, are employed on a fairly regular basis. As they gain in seniority, they eventually succeed in becoming members of the union. This has several advantages in terms of priority in employment, pension rights etc. The most senior casual longshore workers are known as welfare eligible casuals. They work at least one thousand two hundred hours annually. They receive the same health benefits as a union member, i.e. weekly indemnity, long-term disability, life insurance, extended health, dental and vision care benefits. At all relevant times, the respondent Wellicome was a welfare eligible casual longshore worker.

[6]      Of the approximately four thousand longshoremen working under the collective agreement, only about five hundred are engaged as part of a regular work force. They and all the other longshore workers, both union members and casuals, are, however, deemed by article 9, section 3 of the collective agreement to be dispatched on a daily basis to their work assignments.

[7]      The work carried out under the collective agreement is the loading and unloading of vessels and related functions. That work load fluctuates on a daily, weekly and annual basis according to the schedule of the vessels to be worked. Longshoring work is carried out twenty-four hours a day on three shifts. The rates of pay for each shift are different.

[8]      The dispatch system for non-union workers works as follows: each worker has a card which he places on the board at the dispatch centre. There are three different shifts starting at 7:00 a.m., 3:00 p.m., and a night shift. The card has to be placed on the board in a sort of ladder system for non-union workers before a certain time for each shift. The workers may, to a certain extent, choose the shifts they desire. In between time, if they are without work long enough, they collect unemployment insurance benefits. They, therefore, maintain continuing claims.

[9]      The claimant applied for benefits on July 8, 1993, effective July 4, 1993, but continued to work until January 27, 1994. He had worked for seven years as a longshoreman and had received unemployment benefits in ten weeks out of thirty weeks preceding the strike. When he left work on the evening of January 27, 1994, he left his personal tools at the work site. On the morning of January 28, 1994, he did not attend at the hiring hall to turn up his card indicating he wished to work the day shift. He testified before the board of referees that on January 28, 1994, he was "going to go on night shift". He explained to the Commission that he stopped working because "[t]here were pickets (sic) covering the whole waterfront". At no time, on or before January 28, 1994, did the applicant advise the claimant that he had been laid off or that his employment was terminated. Had his employment been terminated, the claimant would have been paid accumulated vacation pay. The health, life, short and long term disability and dental benefits to which he was entitled were continued without interruption during the strike.

[10]      The Commission allowed the respondent's claim for the period of the strike from January 28, 1994, until February 9, 1994, on the basis that the claimant had not lost his employment by reason of a stoppage of work attributable to a labour dispute.

[11]      The applicant appealed on the grounds that the respondent had lost work as a result of the strike at his place of work. A majority of the board of referees allowed the appeal. The majority noted that this was not a case where the claimant was laid off or terminated by the employer prior to the stoppage of work. The payroll records and other records showed that the claimant worked January 24 and 27, and worked seventy-two hours in the weeks of January 2 to 8 and January 9 to 15, which indicated that there was no stoppage of work for the claimant. The majority was of the view that the claimant had previous employment. His records indicated that he worked on a fairly regular basis. They concluded that the reason for the claimant's loss of employment was directly connected to the stoppage of work attributable to the labour dispute. The minority member of the board noted three undisputed facts: that the applicant was the employer; that the applicant did not schedule in advance; and that only those employees referred to as "regular work force" were guaranteed work each week. Since the employer had presented no proof that the claimant had a definite offer of employment on January 28, the minority member accepted the proposition of the Commission, based on the White decision, that the claimant was only on call and had no assurance that he would have worked on January 28, 1994. He could not, therefore, have lost his employment due to a work stoppage.

[12]      The respondent appealed to the umpire.

The umpire's decision

[13]      The umpire dealt extensively with this Court's decision in White and with the words found in subsection 31(1) of the Act, namely whether the claimant had lost his employment "... by reason of a stoppage of work attributable to a labour dispute..." He concluded:

While the prevailing jurisprudence of the Court of Appeal has held in effect that a lay-off without a specific date for recall is equivalent to a separation from employment, entitling a claimant to benefits, this may lead to an over-simplification if it is applied, without exception, to work such as that of longshoremen, construction workers or others who have established a steady pattern of employment, although always subject to recall from day to day as their services are needed; but the dates of recall are not precisely foreseeable at the time of lay-off. To find that such an employee has "lost his employment" after each lay-off, although both he and his employers know he will be recalled appears to be an unrealistic conclusion for such types of employment which, although not uncommon, are of an exceptional nature. The claimant has much more than an "expectation of being recalled" but a near certainty of it.

...

In the present case, the Board of Referees states clearly:

"This is not a case where the claimant was laid off or terminated by the employer prior to the stoppage of work."

The facts seem to support that finding, unless one can conclude that each lay-off after a work assignment is in fact a termination of employment. In addition to finding that claimant had lost his employment pursuant to section 31(1) of the Act, having lost it as a result of the labour dispute, the Board also found that he was subject to disentitlement as he was unable to resume a previous employment by reason of a work stoppage due to a labour dispute. Again, this is based on the assumption, not unreasonable on the facts, that he had previous employment to which he would have been recalled as usual but for the strike.

...

I do not conclude that the decision of the Board was perverse or capricious on the facts or without regard to the material before it. On the contrary, such a finding appears to be realistic and inevitable for workers involved in this type of work.

However, it is erroneous in law if the White case is strictly applied and cannot be distinguished. If this decision is appealed, the Court of Appeal will have another opportunity in its wisdom to consider whether employment of this nature is an exception and that each lay-off without a fixed date of recall should not be considered as a separation from employment. The consequences are far-reaching for many such workers.

Since I am bound by the decision of the Court of Appeal, however, unless a subsequent decision of that Court makes a different finding for employment of this nature, I must grant claimant's appeal.

Analysis

[14]      The key issue in this case is whether the claimant has lost his employment or was unable to resume a previous employment due to a stoppage of work when he came to the waterfront on January 28, 1994.

[15]      In order to disentitle a claimant under subsection 31(1) of the Act, it must be established

(a) that there was a labour dispute at the premises in question;

(b) that the labour dispute caused a stoppage of work; and

(c) that the claimant lost his employment by reason of that stoppage of work.

[16]      The third point is pivotal to this case. But, since the claimant has questioned before us the status of the applicant as employer, this matter must be dealt with first.

[17]      The claimant states that had the referees not overlooked the crucial distinction between the applicant, which acts as a bargaining agent for individual employers, and the many individual employers which make up the association, they would necessarily have concluded that there was no evidence of any specific employment that the claimant could have lost or been unable to resume on January 28. Given the number of waterfront employees, and the shortness of each specific period of employment, it would have been impossible for the referees to have found on a balance of probabilities that the claimant would have been recalled by the same employer for whom he had worked on January 27, 1994.

[18]      In White, says the claimant, and in most other cases decided under subsection 31(1), the claimant had an ongoing employment with a single employer. In many of those cases, there is evidence that the employment would have continued if the strike had not occurred. If an applicant who resigns his employment because of an upcoming strike,⁴ or who is laid off by the employer because of an upcoming strike,⁵ cannot be disentitled under subsection 31(1), there can be no rational basis for disentitling the claimant who had no specific employment and guarantee of any specific future employment even if a strike had not occurred.

[19]      The claimant agrees with remarks made by the dissenting member of the board of referees at the hearing that the structure of employment being as it is on the waterfront, the applicant had not provided evidence to show that the claimant had employment on January 28, 1994. The applicant had described their hiring practices and their employment system, but the bottom line was that there was no definite offer of employment for the claimant on January 28, 1994.

[20]      The issue of the status of the applicant as employer of the claimant was not raised before the board of referees nor was it raised in argument before the umpire. It is, therefore, quite late in the day to raise it before us. It is a well-recognized principle that a party cannot raise an entire argument which has not been raised below and in relation to which it may be necessary to adduce evidence.⁶ In Mon-Oil Ltd. v. Canada,⁷ this Court stated that a court of appeal should only give effect to a new point that was not taken below if it is satisfied that no reasonable or satisfactory explanation could have been given at trial if the matter had been timely raised.⁸ The record as it stands does not reveal the factual and legal framework which applies in the ports of British Columbia and, in particular, whether the applicant has been the object of a designation under sections 33 or 34 of the Canada Labour Code.⁹ In a supplementary application record, the applicant has informed this Court that the issue of the identity of the claimant's employer was first raised by the claimant on October 13, 1995, approximately one year after the decision of the board of referees. On October 13, 1995, the claimant wrote to the Department of Human Resources Development Canada requesting an authoritative determination for the purpose of the claimant's unemployment insurance claim as to who was his employer or employers. On October 18, 1995, the Department of Human Resources Development Canada rejected this request. On November 9, 1995, the claimant applied to Revenue Canada under subsection 61(3) of the Unemployment Insurance Act for a determination that the applicant was not the claimant's employer. On March 7, 1996, that application was denied by Revenue Canada. No appeal from the decision of Revenue Canada has been served on the applicant. We cannot, in the circumstances, decide on the status of the employer. The applicant is designated as the employer under the collective agreement. The applicant was treated as the employer before the Commission, the board of referees and the umpire throughout these proceedings. This case can, therefore, only be decided on the facts as found before those administrative bodies.

[21]      In White, the claimants had been laid off by their employer three days before the beginning of a strike which the employer was anticipating. On account of this estimation of his, he had decided to distribute the work to other plants. A notice of layoff had been communicated to the claimants effective July 27, 1990. In the meantime, a strike vote was taken by the union on July 24 and 25, 1990, which authorized a strike beginning on July 30, 1990. The strike began that day. The claimants received unemployment insurance benefits at first, but they were later said to be disentitled for the period of the strike on account of subsection 31(1) of the Act.

[22]      This Court held that the claimants did not have continuing employment following their layoff. They in fact had lost it by layoff. There had been a termination of the contract of employment. The claimants, therefore, had not lost their employment "by reason of a stoppage of work attributable to a labour dispute" but rather by reason of the action of their employer.

[23]      What is important in the case at bar is the pattern of employment which the umpire referred to in the earlier quote, and which I reproduce again, in part:

While the prevailing jurisprudence of the Court of Appeal has held in effect that a lay-off without a specific date for recall is equivalent to a separation from employment, entitling a claimant to benefits, this may lead to an over-simplification if it is applied, without exception, to work such as that of longshoremen, construction workers or others who have established a steady pattern of employment, although always subject to recall from day to day as their services are needed; but the dates of recall are not precisely foreseeable at the time of lay-off...

[24]      This Court, in White, referred to a pattern of layoffs and recalls in the context of two cases, Delmer Albright v. Employment and Immigration Canada,¹⁰ and Morrison v. Canada (Employment & Immigration Commission).¹¹ Although in both cases it was held that subsection 31(1) applied so as to deny benefits, the pattern of employment was different from the case at bar. In both cases, the claimants had been laid off and had received actual recall dates when a strike occurred.

[25]      In the case at bar, the respondent has not been the object of a layoff when he left his employment on the evening of January 27, 1994. He, like all the other longshoremen, both union members and casuals, was to be dispatched on a daily basis to his work assignment, depending on the existence of the work and the work location. He did not have a definite recall in hand. But he was not out of work on January 28, 1994, if work there was. His pattern of work, as indicated from the payroll and other records, satisfied the majority of the board of referees that there was no shortage of work for the claimant. While, on January 27, 1994, the claimant did not have a work assignment for the following day, the umpire found it reasonable to assume that the claimant had employment to which he would have been recalled as usual but for the strike. He made the finding that the respondent had much more than "'an expectation of being recalled' but a near certainty of it".¹² The claimant had not terminated his employment relationship, nor had he broken his ties with his employer. He continued to have seniority rights which entitled him to the assignment of available work failing which he had a right to grieve under the collective agreement. Although he could not have had any say in the strike vote, not being a union member, he received retroactive pay when the new agreement was signed. These elements indicate that, at all relevant times, the claimant remained in the workforce comprising the union and non-union, casual and scheduled longshoremen.

[26]      A number of umpires have dealt with the case of union and casual longshore workers who work on a daily dispatch system made necessary by the nature of the work they perform, namely the number of ships and the quantity and nature of their cargo which vary on a daily basis from wharf to wharf. In Alain Migneault v. Employment and Immigration Canada,¹³ Dubé J., acting as an umpire, observed that, while a temporary longshoreman who did not accrue seniority was never certain that he would work on the following day because his return to work depended on the discretionary decision of the employer, nevertheless, he was disentitled from benefits by reason of a labour dispute. Dubé J. stressed the fact that the very nature of the work of longshoremen required that they work only on call when there were ships in port.

[27]      The unique circumstances of a casual longshoreman who is assigned work on a dispatch system were considered in David H. Cameron.¹⁴ Kerr J., acting as an umpire, stated rightly, in my view:

To suggest that by reason of the casual nature of his employment the claimant had no employment with the employer when the stoppage occurred overlooks the pattern, extent and regularity of his employment, its continuing nature, and the immediate prospect of continuing work at the date of the stoppage. There conceivably can be cases where casually employed workers should be treated as not employed at the time of a work stoppage at the premises of an employer who gives them casual work from time to time, but this is not such a case.

[28]      This case is, therefore, clearly to be distinguished from the one of Morissette v. Canada (Employment and Immigration Commission),¹⁵ where the applicant worked on a sporadic basis, only on calls to which he responded if he wished to. When he left work the day before the lockout, he had no right to be called back and did not know when he would be. This Court held that, at the time of the lockout, the claimant had only an expectation of being employed.

[29]      Gionest v. Unemployment Insurance Commission¹⁶ is also to be distinguished. There, the collective agreement covering several fish processing plant workers provided that, when the plant reopened each spring, the employer would offer work to his employees of the previous year, beginning with those having the most seniority. The reopening of the plant where the claimants worked was delayed the following spring on account of negotiations leading to a new collective agreement. The plant only reopened when the new agreement was signed. The issue arose as to whether these employees were entitled to unemployment insurance benefits for the extension of the period of unemployment following the employer's decision not to reopen at the usual period. The Court found favorably for the claimants, holding that subsection 44(1) (now 31(1)) did not apply. The right of the employees to employment was not a firm one; it was conditional on the plant being open and this only existed after such reopening.

[30]      The respondent deputy attorney general took before us the position that the claimant was entitled to unemployment insurance benefits on account of the casual nature of his work. The deputy attorney general even accepts the proposition that all longshoremen, whether unionized or not, are entitled to benefits when a strike occurs since their work is called on a daily basis. This proposition runs counter to the well-known proposition of the neutrality of the state in labour disputes, as expressed in Hills v. Canada (Attorney General).¹⁷

[31]      I would allow this application for judicial review, I would set aside the decision of the umpire, and I would refer the matter back to the chief umpire or his designate to dismiss the appeal, thus confirming the decision of the majority of the board of referees.

     "Alice Desjardins"

     J.A.

"I agree

     B.L. Strayer J.A."

"I agree

     F.J. McDonald J.A."

__________________

¹      R.S.C. 1985, c. U-1.

²     

31. (1) Subject to the regulations, a claimant who has lost an employment or is unable to resume a previous employment by reason of a stoppage of work attributable to a labour dispute at the factory, workshop or other premises at which the claimant was employed is not entitled to receive benefit until the earlier of      (a) the termination of the stoppage of work, and      (b) the day on which the claimant has become regularly engaged elsewhere in insurable employment.

31. (1) Sous réserve des règlements, le prestataire qui a perdu un emploi ou qui ne peut reprendre son emploi antérieur du fait 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, selon le cas:a) la fin de l'arrêt de travail;b) le jour où il a commencé à exercer ailleurs d'une façon régulière un emploi assurable.

The term "labour dispute" ("conflit collectif") is thus defined in subsection 2(1) of the Act:

"labour dispute" means any 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;      [Emphasis added]

"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.      [Je souligne]

³      [1994] 2 F.C. 233.

⁴      Létourneau v. Canada Employment and Immigration Commission, [1986] 2 F.C. 82. It should be noted in this case that, although it was held that subsection 44(1) (now 31(1)) did not apply, the claimant was subject to the six-week disqualification contemplated by section 41. Foreseeing a strike was not a reason for an employee to leave his employment.

⁵      White v. Canada, [1994] 2 F.C. 233.

⁶[1984] 2 S.C.R. 232">      Perka v. the Queen, [1984] 2 S.C.R. 232 at 240.

⁷      (1993), 152 N.R. 210 at 223.

⁸      SS. "Tordenskjold" v. SS. "Euphemia" (1980), 41 S.C.R. 154.

⁹      R.S.C. 1985, c. L-2.

¹⁰      (9 May 1989), CUB-16604.

¹¹      (1990), 114 N.R. 272 (C.A.), 70 D.L.R. (4th) 559.

¹²      A.B. at 280.

¹³      (22 May 1986), CUB-14185.

¹⁴      (15 June 1970), CUB-2968.

¹⁵      (21 March 1991), A-692-90 (C.A.).

¹⁶      [1983] 1 F.C. 832.

¹⁷      [1988] 1 S.C.R. 513 at 537.