[1] This is an application for judicial review of an umpire's decision of March 30, 2004, dismissing the Employment Insurance Commission's appeal from an earlier decision of a board of referees.

Facts

[2] The claimant, respondent in the case at bar, was replacing an indeterminate employee who had to leave work temporarily because of illness. The replacement began on July 24, 2002, and was to end on March 14, 2003, the Friday before the anticipated return to work of the employee she was replacing.

[3] As a result of a labour conflict between the union and the employer, a strike occurred shortly before the replacement contract was to terminate. The strike in question began on February 28 and ended on May 18, 2003.

[4] Based on the scheduled date of termination of her employment under the replacement contract, the claimant applied for benefits effective March 17, 2003. The evidence shows that despite termination of her replacement contract, the claimant remained on a call-back list and actually was called back to fill another position 10 days after the strike ended.

[5] The Commission turned down the application for benefits on the basis that the claimant lost her employment because of the work stoppage and was therefore ineligible for benefits until May 18, 2003, when the work stoppage ended, in keeping with subsection 36(1) of the Employment Insurance Act. That provision reads as follows:

Labour disputes

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.

Conflits collectifs

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.

[emphasis added]

[6] The claimant brought the case before a board of referees, which found that the loss of her employment was attributable to the end of her replacement contract, not to the work stoppage. The Board accordingly held that the claimant was entitled to benefits and that subsection 36(1) did not apply.

[7] The Umpire upheld that decision, based essentially on the decision of this Court in Imbeault et al. v. Unemployment Insurance Commission, 68 N.R. 74:

The evidence shows that when the work stoppage began on February 28, 2003, the claimant was a "[Translation] replacement employee" pursuant to clause 6.17 of the collective agreement, and was replacing a permanent employee who had been away on sick leave since July 29, 2002. She was to enjoy this status until the absent employee's return. In the present case, the absent employee became available for work as of March 17, 2003, which terminated her sick leave. Had the work stoppage ended on that date, the absent employee would have been able to resume her employment at that time, as at any other time after that date, in the event of an end to the labour dispute. This is why the employer issued the claimant a notice of termination, effective March 14, 2003.

As of that date, the claimant was no longer employed by the University of Montreal. She was unemployed, regardless of the pending work stoppage. Even if the work stoppage had ended on Monday, March 17, she could not have resumed her employment, as the employee she had been replacing was available for work, her sick leave having ended. As of that date, the claimant was free to work elsewhere. She was available for work, provided that she complied with the conditions in the Act.

As the evidence demonstrates, she made a renewal claim for benefits, which was to become effective on March 16, 2003 (Exhibit 5). In Imbeault (A-181-83), the Honourable Hugessen J. stated the following:

It is the cause of his loss of employment at this particular time, not the cause of his subsequent unemployment, which makes him ineligible; once established, the ineligibility does not end until one of the three situations listed in paras (a), (b) and (c) occurs. In other words, the question that must be asked is "How did the claimant lose his employment at the start of his period of unemployment?", and not "Why is the claimant unemployed now?" Accordingly, once a claimant loses his employment for the reason stated in s. 44(1)*, he becomes ineligible; he remains so as long as one of the conditions in paras (a), (b) and (c) has not occurred, even if had there been no labour dispute he would subsequently have lost his employment in any case for some other reason.

* Now section 36 of the Employment Insurance Act.

In this case, it was the return from sick leave of the absent employee, whom the claimant had been replacing, which terminated the claimant's employment and disentitlement. The period of disentitlement ran from February 28, 2003, the date the work stoppage began, to Friday, March 14, 2003. It is clear that, given the labour dispute, the absent employee did not physically return to work on Monday, March 17, 2003, but the end of her sick leave and her availability for work as of March 17 had the same effect.

Analysis and decision

[8] In our view, the Umpire misunderstood the effect of Imbeault (which is still the leading case on this point: see, for example, Hinds v.Canada [1989] F.C.J. No. 42; Peckford v. Canada (1992) F.C.J. No. 826; Langor v. Canada [1992] F.C.J. No. 828.) He lost sight of the wording of subsection 36(1) of the Act in making the finding he made.

[9] First of all, the "particular time" at which the employment was lost, according to Imbeault, was not that identified by the Umpire; it was actually when the strike began. In quoting from Imbeault, the Umpire neglected to consider the key sentence preceding the passage he cited:

In my opinion, the use of the past tense of the verb "to lose" in the first phrase inevitably takes us back to the time when the claimant became unemployed. It is the cause of his loss of employment at this particular time, not the cause of his subsequent unemployment, which makes him ineligible;

[10] In the case at bar, it has been established that on February 27, 2003, when the strike began, the claimant lost her employment because of the labour conflict. The conflict was, at this particular time, the only reason for the claimant's unemployment. Moreover, on March 17, 2003, she was still unable to resume "an employment" with her employer because of the ongoing labour conflict.

[11] Under subsection 36(1), a claimant who loses "an employment" or "is unable to resume an employment" under these circumstances 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.

[12] As Pratte J.A. said in Imbeault in reference to what was then subsection 44(1):

Although the umpire decisions relied on were clearly prompted by a laudable concern for fairness, I consider that they cannot be reconciled with the wording of the Act, which provides that the ineligibility imposed by s 44(1) only ends when one or other of the situations mentioned in paras (a), (b) and (c) of that subsection arises [(a) and (b) in the case at bar]. I do not feel it is possible to interpret any of these three paragraphs as meaning that the ineligibility ends when the labour dispute ceases to be the real cause of the unemployment.

[13] In the case at bar, neither condition ending the ineligibility had materialized as of March 17, 2003, when the benefit claim was to take effect.

[14] Therefore, the Umpire and preceding Board of Referees erred in finding an entitlement to benefits. Under subsection 36(1), the claimant was ineligible.

[15] The application for judicial review will accordingly be allowed, the Umpire's decision set aside and the matter referred back to the Chief Umpire or his designate for redetermination on the basis that the Commission's appeal should be allowed and the claimant found not entitled to benefits. Under the circumstances, there is no basis for an award of costs.

"Marc Noël"

J.A.

Certified true translation

Peter Douglas

FEDERAL COURT OF APPEAL

SOLICITORS OF RECORD

DOCKET: A-209-04

STYLE OF CAUSE: ATTORNEY GENERAL OF CANADA

Applicant

and

MONIQUE GADOURY

Respondent

PLACE OF HEARING: Montréal, Quebec

DATE OF HEARING: January 11, 2005

REASONS FOR JUDGMENT OF THE COURT: LÉTOURNEAU, NOËL, PELLETIER, JJ.A.

DELIVERED FROM THE BENCH (BY): NOËL J.A.

APPEARANCES:

Pauline Leroux

FOR THE APPLICANT

Ronald Cloutier

FOR THE RESPONDENT

SOLICITORS OF RECORD:

John Sims

Deputy Attorney General of Canada

Montréal, Quebec

FOR THE APPLICANT

Canadian Union of Public Employees

Montréal, Quebec

FOR THE RESPONDENT

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Canada (Attorney General) v. Gadoury, 2005 FCA 14

Citations2005 FCA 14

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2005 FCA 14