Canada ( Attorney General ) v. Stolniuk
A-686-93 / A-687-93
Marceau J.A.
28/9/94
7 pp.
Applications for judicial review of Umpire's dismissal of appeals from rulings of Boards of Referees disentitling respondent from benefits for reasons of unavailability -- Respondent working as school teacher from time to time, but working on farm owned by company owned by respondent and husband, during farming season -- Not available for regular full-time employment as teacher -- From June to August, 1991 worked full-time on farm -- On September 9, after being laid off by farming company, applied for renewal of benefits -- Commission holding disentitled to benefits as not proving available for work -- Board of Referees upholding decision, agreeing not available to immediately accept full-time employment -- When that benefit period expired, respondent's new application for benefits refused for same reason -- Umpire agreeing respondent not available for work, but allowing appeals as no warning required to extend job search for other types of work -- Applications allowed -- Unemployment Insurance Act, s. 14 establishing claimant must be available for work, capable of proving so to be entitled to benefits -- Contradicting will of Parliament to hold, although claimant not available, entitled to receive benefits -- Commission's failure to follow policy in particular case and send warning to claimant before giving effect to unavailability possibly giving rise to cause of action in administrative law for remedy based on administrative liability, but not creating right under Unemployment Insurance Act -- Once satisfied finding of unavailability well-founded, Umpire required to confirm decisions -- Although Commission often warning claimant to expand job search to satisfy requirement of availability, not adopting general policy of warning for all cases where intending to give effect to unavailability of claimant -- No justification for such policy -- Proper, fair application of law may require warning change of attitude, efforts required where claimant's personal circumstances changed since unemployment, or unemployment period extended -- In this case restrictions on reemployment there from beginning -- In clear instance of unavailability, Umpire cannot hold claimant entitled to benefits under Act simply because Commission omitted to give advance warning -- Unemployment Insurance Act, R.S.C., 1985, c. U-1, ss. 14 (as am. by S.C. 1990, c. 40, s. 10), 27, 41(8).