Date:
20130606
Docket:
A-359-12
Citation: 2013 FCA 151
CORAM:
NOËL J.A.
TRUDEL
J.A.
MAINVILLE
J.A.
BETWEEN:
THE ATTORNEY
GENERAL OF CANADA
Applicant
and
Mohammed
ELYOUMNI
Respondent
REASONS FOR JUDGMENT
NOËL J.A.
[1]
This
is an application for judicial review of a decision by Umpire L.-P. Landry
(the Umpire) dismissing the appeal of the Employment Insurance Commission (the
Commission) from the Board of Referees’ decision that Mohammed Elyoumni (the
claimant) was entitled to benefits under paragraph 55(1)(b) of the Employment
Insurance Regulations, SOR/96-332 (the Regulations), while he was abroad
for his father’s funeral. This case solely concerns the interpretation of
subsection 18(1) of the Employment Insurance Act, S.C. 1996, c. 23
(the Act), and subsection 55(1) of the Regulations, and more specifically
how the first provision should be interpreted if the second applies.
BACKGROUND
[2]
The
Commission initially determined that the claimant was not entitled to receive
benefits from May 23, 2011, to June 3, 2011, on the ground that he
was outside the country and that he had not made [translation] “arrangements in order to be reached for employment”
(Decision of the Commission, Applicant’s Record, p. 38). The claimant
appealed this decision before the Board of Referees, which set aside the
Commission’s decision. Like the Commission, the Board of Referees noted that
the claimant had not made the necessary arrangements in order to be reached
while he was abroad (Decision of the Board of Referees, Applicant’s Record,
pp. 52 and 53). It concluded, however, that the claimant was entitled to
benefits for the first week since he fell within the scope of
paragraph 55(1)(b) of the Regulations.
[3]
The
Commission’s appeal of this decision was subsequently dismissed by the Umpire.
[4]
Subsection 18(1)
of the Act and paragraph 55(1)(b) of the Regulations read as
follows:
|
18. (1) A claimant is not entitled
to be paid benefits for a working day in a benefit period for which the
claimant fails to prove that on that day the claimant was
(a) capable
of and available for work and unable to obtain suitable employment;
(b) unable
to work because of a prescribed illness, injury or quarantine, and that the
claimant would otherwise be available for work; or
(c) engaged
in jury service.
|
18. (1) Le prestataire n’est pas
admissible au bénéfice des prestations pour tout jour ouvrable d’une période
de prestations pour lequel il ne peut prouver qu’il était, ce jour-là :
a) soit
capable de travailler et disponible à cette fin et incapable d’obtenir un
emploi convenable;
b) soit
incapable de travailler par suite d’une maladie, d’une blessure ou d’une mise
en quarantaine prévue par règlement et aurait été sans cela disponible pour
travailler;
c) soit en
train d’exercer les fonctions de juré.
|
|
55. (1) Subject to section 18
of the Act, a claimant who is not a self-employed person is not
disentitled from receiving benefits for the reason that the claimant is
outside Canada
. . .
(b) for a
period of not more than seven consecutive days to attend the funeral of a
member of the claimant’s immediate family or of one of the following persons,
namely,
. . .
|
55. (1) Sous réserve de l’article
18 de la Loi, le prestataire qui n’est pas un travailleur indépendant n’est
pas inadmissible au bénéfice des prestations du fait qu’il est à l’étranger
pour l’un des motifs suivants :
[…]
b) assister,
pendant une période ne dépassant pas 7 jours consécutifs, aux funérailles d’un
proche parent ou des personnes suivantes :
[…]
|
[Emphasis
added.]
[5]
It
is also useful to reproduce section 37 of the Act, as it allows us to
better understand the effect of paragraph 55(1)(b) of the
Regulations:
|
37. Except as may otherwise be
prescribed, a claimant is not entitled to receive benefits for any period
during which the claimant
(a) is an
inmate of a prison or similar institution; or
(b) is not
in Canada.
|
37. Sauf dans les cas prévus par
règlement, le prestataire n’est pas admissible au bénéfice des prestations
pour toute période pendant laquelle il est :
a) soit
détenu dans une prison ou un établissement semblable;
b) soit à l’étranger.
|
DECISION OF THE
UMPIRE
[6]
According
to the Umpire, it goes without saying that a claimant who is outside Canada for
a certain time to attend a funeral cannot at the same time be available for
work in Canada (Decision of the Umpire, Applicant’s Record, p. 8). Thus
confronted with the application of both paragraph 55(1)(b) and
subsection 18(1), he resolved this apparent conflict in the following
manner (Decision of the Umpire, Applicant’s Record, pp. 9 and 10):
[translation]
I interpret section 18 as follows
in relation to paragraph 55(1)(b) of the Regulations. To receive
benefits during the period set out in the Regulations, the claimant must be
entitled to receive benefits before leaving the country. Before leaving, the
claimant must be unemployed, looking for employment, and available for and able
to work. If the claimant meets these conditions before leaving, the effect of the
Regulations is that the claimant will be entitled to receive benefits for seven
days even if, during that period, the claimant is obviously not available for
work or able to respond to an offer of employment in Canada. Similarly, the
claimant cannot be required to seek employment while absent from Canada.
[7]
The
Umpire therefore dismissed the Commission’s appeal.
POSITIONS
OF THE PARTIES
[8]
The
Commission contends that the applicable standard of review is that of
correctness (Applicant’s Memorandum, para. 12) and that the Umpire erred
in law in his interpretation of subsection 18(1) of the Act and
paragraph 55(1)(b) of the Regulations. The Commission emphasizes
that the phrase “Subject to section 18 of the Act” that appears at the
beginning of subsection 55(1) indicates that, to benefit from this
provision, claimants must also satisfy the requirements of section 18
(Applicant’s Memorandum, para. 16).
[9]
The
Commission submits, moreover, that the Umpire erred in concluding that the
claimant’s being available before his departure sufficed for him to benefit
from subsection 55(1), when section 18 of the Act requires claimants
to prove their availability for every working day in a benefit period
(Applicant’s Memorandum, para. 19).
[10]
The
claimant attended the hearing but did not file a memorandum.
ANALYSIS AND
DECISION
[11]
The
Umpire’s interpretation clearly does not take into account the phrase “Subject
to section 18 of the Act” at the beginning of subsection 55(1) of the
Regulations. As these words indicate, what had to be done here was to give
effect to subsection 55(1) while at the same time meeting the requirements
of section 18.
[12]
According
to the Umpire, these provisions are irreconcilable since a claimant cannot at
the same time be outside Canada under subsection 55(1) of the Regulations
and be available for work in Canada as required by subsection 18(1) of the
Act (Decision of the Umpire, Applicant’s Record, p. 10). In my opinion,
the Umpire erred since the introductory words of subsection 55(1) of the
Regulations indicate that these provisions must be read together.
[13]
The
concept of availability in paragraph 18(1)(a) of the Act is not
defined and must be interpreted contextually. Paragraph 55(1)(a) of
the Regulations maintains a claimant’s entitlement to benefits despite the
claimant’s being abroad—see section 37 of the Act—if the purpose of the
trip is to attend the funeral of a member of the claimant’s immediate family. This
provision applies for a period of seven days.
[14]
In
light of the principle that Parliament—more specifically, the Governor in
Council—does not speak in vain, the legislation necessarily contemplated that
claimants who avail themselves of this provision could remain available for the
purposes of subsection 18(1) of the Act even if they are outside the
country.
[15]
The
availability of a claimant who benefits from the exception set out in
subsection 55(1) of the Regulations is assessed on a case-by-case basis. In
the context of the present case, the claimant had to, at the very least,
demonstrate that he had made arrangements so that he could be reached during
his absence from Canada if he was offered a job.
[16]
In
this case, the claimant did not make any arrangements in order to be reached. This
is why the Commission concluded that the claimant had not proven that he was
available for work (Decision of the Commission, Applicant’s Record, p. 38)
and the Board of Referees concluded that he was not available under
subsection 18(1) of the Act (Decision of the Board of Referees, Applicant’s
Record, p. 53). In my opinion, the Commission was correct in finding that
the claimant had not proved his availability, and the Umpire erred in refusing
to intervene.
[17]
I
would therefore allow the application for judicial review, set aside the
decision of the Umpire and refer the matter back to the Chief Umpire or his
designate for redetermination on the basis that the claimant was not available for
work from May 23, 2011, to June 5, 2011.
“Marc Noël”
“I
agree.
Johanne Trudel J.A.”
“I
agree.
Robert M. Mainville J.A.”
Certified
true translation
Erich
Klein
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