Date:
20061126
Docket: A-542-07
A-543-07
A-544-07
Citation: 2008 FCA 372
CORAM: LINDEN J.A.
RYER J.A.
TRUDEL J.A.
A-542-07
BETWEEN:
THE
ATTORNEY GENERAL OF CANADA
Applicant
and
RONALD
PALMER
Respondent
A-543-07
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
WES KREIDER
Respondent
A-544-07
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
ROBERT KING
Respondent
Heard at Calgary,
Alberta, on November 26,
2008.
Judgment delivered from the Bench at Calgary, Alberta, on November 26, 2008.
REASONS FOR JUDGMENT OF THE COURT BY: RYER
J,.A.
Date:
20061126
Docket: A-542-07
A-543-07
A-544-07
Citation:
2008 FCA 372
CORAM: LINDEN J.A.
RYER
J.A.
TRUDEL
J.A.
A-542-07
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
RONALD PALMER
Respondent
A-543-07
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
WES KREIDER
Respondent
A-544-07
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
ROBERT KING
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered from
the Bench at Calgary, Alberta, on November 26, 2008)
RYER J.A.
[1]
This
is a consolidated application for judicial review of three decisions of Umpire Guy
Goulard (CUB 69098, CUB 69099 and CUB 69097), upholding three decisions of the
majority of the Board of Referees (Case 05-0826, Case 05-0800 and Case
05-0726), each dated February 1, 2006, in which employment insurance benefits
were awarded to Mr. Ronald Palmer, Mr. Wesley Kreider and Mr. Robert King.
These three applications were consolidated pursuant to an Order of Decary J.A.
dated March 25, 2008.
[2]
The
dispute before the Board of Referees related to the question of whether
Messieurs Palmer, Kreider and King lost their employment with TELUS because of
a “work stoppage attributable to a labour dispute” within the meaning of
subsection 36(1) of the Employment Insurance Act (the “Act”). That
provision reads as follows:
|
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.
|
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.
|
[3] It is common ground that if
these men lost their employment due to such a work stoppage, they would not be
entitled to employment insurance benefits.
[4] We are of the view the Umpire
misconstrued the decision of the Board of Referees and therefore could not have
properly reviewed that decision, regardless of the standard of review that he
applied to that task.
[5] It is clear that the majority of
the Board of Referees found that there was no work stoppage, within the meaning
of subsection 36(1) of the Act. In each case, the Board of Referees states: “Therefore
we find that under section 31 of the Act no work stoppage occurred”.
However,
in his reasons, the Umpire states:
On July 21,
2005, a work stoppage attributable to a labour dispute occurred where
the employer locked out the employees. On the same date, members of the TWU
established picket lines at various Telus sites. The evidence also established
that on the day of the work stoppage, the employer activated a
Comprehensive Business Continuity Plan it had been putting in place for an
extended period of time prior to, and in anticipation of, the work stoppage.
Through this Plan, the employer was able to maintain a high level of
productivity in most of its areas of operation.
[emphasis
added]
In
this passage, the Umpire makes three separate references to a work stoppage
that had occurred.
[6] That the Umpire had the view
that a work stoppage had occurred is also evident from his statement, near the
end of his reasons, that
As
stated by Justice Pratte in Simoneau (A-143-80), “The question of whether
a work stoppage has terminated is a question of fact in each case”.
[emphasis
added]
[7] In the concluding portion of his
reasons, the Umpire acknowledges that deference is owed to the Board of
Referees in relation to the facts as found by them. In upholding the decision
of the majority of the Board of Referees, the Umpire states that their decision
is compatible with the evidence before them. Thus, the Umpire upholds the
decision of the majority of the Board, that found that no work stoppage had
occurred. With respect, this is clearly inconsistent with his statements
quoted above, in which he states that a work stoppage had occurred.
[8] We are of the view that this
misapprehension on the part of the Umpire as to the decision of the majority of
the Board of Referees requires us to intervene and to set aside his decision.
[9] These cases raise the important
issue of what constitutes a work stoppage, as a matter of law, and whether the
elements of that legal term have been met on the facts. An analysis of this
issue should have been clearly and directly undertaken by the Board of Referees
or the Umpire in reviewing their decision.
[10] Accordingly, the applications for
judicial review are allowed, without costs, the decisions of the Umpire are set
aside and those matters are referred to the Chief Umpire for redetermination.
A copy of these reasons should be placed in the file for each of the
applications that has been consolidated.
“C.
Michael Ryer”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-542-07
The Attorney General of Canada
v.
Ronald Palmer
A-543-07
The
Attorney General of Canada
v.
Wes Kreider
A-544-07
The
Attorney General of Canada
v.
Robert King
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: November 26, 2008
REASONS FOR JUDGMENT OF THE COURT BY: (LINDEN, RYER, & TRUDEL JJ.A.)
DELIVERED FROM THE BENCH BY: Ryer J.A.
APPEARANCES:
|
Margaret McCabe
|
FOR THE APPLICANT
|
|
Wayne
Benedict
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
|
John H. Sims Q.C.
Deputy Attorney General of Canada
|
FOR THE APPLICANT
|
|
McGown Johnson
Calgary, Alberta
|
FOR THE RESPONDENT
|
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