[1] This is an application for judicial review of a decision of an Umpire (CUB 44692C), reversing a decision of a Board of Referees, dated August 11, 1998. The Board had dismissed an appeal by Frank Stillo against a determination by the Canada Employment Insurance Commission that from October 27, 1997 to November 7, 1997, Mr. Stillo had been overpaid $826.00 in benefits to which he was not entitled, because his unemployment was the result of a work stoppage attributable to a labour dispute at his place of employment.

[2] Mr. Stillo was employed by the Peel Board of Education ("Peel") as a supply teacher. The terms of his employment were governed by a collective agreement between Peel and a branch of the Ontario Secondary School Teacher's Federation ("OSSTF"). From October 27, 1997, to November 7, 1997, the OSSTF, along with other teachers' unions, withdrew the services of their members as a protest against education legislation, Bill 160, that was then before the Ontario Legislature.

[3] Many boards of education, including Peel, were sympathetic to the concerns being expressed by the teachers' unions about the provincial government's education policies, which the boards would be required to implement and which would limit their powers. Nonetheless, Peel also informed its employees that it could not condone an illegal work stoppage by the teachers.

[4] During the days of protest, classes were cancelled in many Ontario schools, including those at the school where Mr. Stillo was teaching. As a result, there was no work for him at that time. This interruption of his employment would have entitled Mr. Stillo to employment insurance benefits, but for the Commission's reliance on the "labour dispute" provisions in the Employment Insurance Act, S.C. 1996, c. 23. Those relevant to this application are as follows.

2.(1) "labour dispute" means a 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;

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.

« _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.

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.

[5] The Umpire concluded that, on the evidence before him, the dispute that had caused the work stoppage was not a "labour dispute" as defined in subsections 2(1) and 36(1). In particular, the work stoppage was not attributable to a labour dispute at the school where Mr. Stillo was employed because it was not the result of a dispute between employers and employees, or between employees and employees, but was a protest that was intended to put political pressure on the provincial government. The Umpire held that the Board had erred in law in failing to consider this issue, probably because Mr. Stillo had not raised it.

[6] We are all of the opinion that, in allowing the appeal, the Umpire made no reviewable error. Whether the work stoppage was attributable to a labour dispute as defined in the Employment Insurance Act is a question of mixed fact and law that will attract the intervention of this Court only if decided unreasonably and, on the evidence before him, the Umpire's decision was far from unreasonable.

[7] We would only add that, since the Board of Referees committed an error of law when it apparently failed to consider the statutory definition of a "labour dispute", the Umpire was fully entitled to reverse without affording the Board's decision any deference. An Umpire must determine on the correctness standard whether a Board of Referees has applied the right law to the facts before it: Budhai v. Canada (Attorney General), 2002 FCA 298 at para 48.

[8] For these reasons, the application for judicial review will be dismissed with costs fixed in the amount of $3,700.00, inclusive of disbursements.

"John M. Evans"

J.A.

FEDERAL COURT OF CANADA

Names of Counsel and Solicitors of Record

DOCKET: A-651-01

STYLE OF CAUSE: THE ATTORNEY GENERAL OF CANADA

Applicant

- and -

FRANK STILLO

Respondent

DATE OF HEARING: WEDNESDAY, SEPTEMBER 25, 2002

PLACE OF HEARING: TORONTO, ONTARIO

REASONS FOR JUDGMENT

OF THE COURT BY: EVANS, J.A.

DELIVERED FROM THE BENCH AT TORONTO, ONTARIO ON WEDNESDAY, SEPTEMBER 25, 2002.

DATED: WEDNESDAY, SEPTEMBER 25, 2002

APPEARANCES BY: Mr. Derek Edwards

For the Applicant

Mr. Joshua S. Phillips

For the Respondent

SOLICITORS OF RECORD: Morris Rosenburg

Deputy Attorney General of Canada

For the Applicant

Green & Chercover

Barristers & Solicitors

30 St. Clair Avenue West

10^th Floor

Toronto, ON, M4V 3A1

For the Respondent

FEDERAL COURT OF APPEAL

Date: 20020925

Docket: A-651-01

BETWEEN:

THE ATTORNEY GENERAL OF CANADA

Applicant

- and -

FRANK STILLO

Respondent

REASONS FOR JUDGMENT

OF THE COURT

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Canada (Attorney General) v. Stillo, 2002 FCA 346

Citations2002 FCA 346

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2002 FCA 346