T-371-79
Dame Madeleine Bernier (Applicant)
v.
Canada Employment and Immigration Commis
sion (Respondent)
and
Deputy Attorney General of Canada (Mis -en-
cause)
Trial Division, Walsh J.—Montreal, February 5;
Ottawa, February 8, 1979.
Prerogative writs — Mandamus — Unemployment insur
ance — Board of Referees allowed applicant's appeal from
Commission's decision concerning applicant's insurable weeks
of employment — Commission's appeal launched after 21 day
period lapsed — Appeal not yet heard — Benefits not being
paid following Board's decision — Commission contending s.
103 inapplicable because Board's ruling on insurability of
applicant's employment outside Board's jurisdiction, and
hence not a decision — Whether or not mandamus should
issue directing the payment of benefits — Unemployment
Insurance Act, 1971, S.C. 1970-71-72, c. 48, ss. 75, 103 —
Unemployment Insurance Regulations, SOR/76-706, s. 167.
APPLICATION.
COUNSEL:
J. P. Villaggi for applicant.
G. LeBlanc for respondent and mis -en-cause.
SOLICITORS:
Brodeur, Labrie & Sénécal, St. Hyacinthe,
for applicant.
Deputy Attorney General of Canada for
respondent and mis -en-cause.
The following is the English version of the
reasons for judgment rendered by
WALSH J.: Applicant is asking that a writ of
mandamus be issued against respondent, requiring
it to pay applicant the unemployment insurance
benefits she is entitled to receive pursuant to a
decision of the Board of Referees.
The evidence is that on September 26, 1978
respondent rendered a decision finding applicant
ineligible for the benefits because she did not have
enough insurable weeks to her credit during her
qualifying period. Applicant appealed from this
decision, and on October 25, 1978 the Board of
Referees unanimously allowed the appeal, holding
that the claimant had accumulated ten weeks of
insurable employment. Respondent did not appeal
from the aforesaid decision until December 20,
1978.
In the interval, the Commission received a deci
sion from Revenue Canada to the effect that the
employment was insurable for eight weeks of
insurable work.
The Commission's appeal to the Umpire from
the decision of the Board of Referees has not yet
been heard, but it contends that the Board erred in
law by ruling on the insurability of the claimant's
employment, which was not within its jurisdiction;
that the appeal is brought within sixty days of the
day the decision was communicated to the claim
ant (sections 95 and 98 of the Act); and that the
decision was not implemented because the Com
mission is of the opinion that section 103 of the
Act does not apply, since by exceeding its jurisdic
tion the Board did not make any decision in this
case. Accordingly, the Commission refused to pay
the benefits to the claimant pending the outcome
of its appeal to the Umpire, thus obliging applicant
to institute these proceedings asking that a writ of
mandamus be issued, if she wishes to collect her
benefits in accordance with the decision of the
Board of Referees without awaiting the outcome
of the appeal.
Section 103 reads as follows:
103. (1) Where a claim for benefit is allowed by a board of
referees, benefit is payable in accordance with the decision of
the board notwithstanding that an appeal therefrom is pending,
and any benefit paid in pursuance of this section after the
decision of the board of referees shall be treated, notwithstand
ing that the final determination of the question is adverse to the
claimant, as having been duly paid, and is not recoverable from
the claimant.
(2) Subsection (1) does not apply
(a) if the appeal was brought within twenty-one days of the
day on which the decision of the board of referees was given
and on the ground that the claimant ought to be disentitled
under section 44, and
(b) in such other cases as the Commission by regulation
prescribes.
Section 44 deals with collective agreements, and
section 167 of the Regulations reads:
167. Benefits are not payable pursuant to a decision of a
board of referees if, within twenty-one days of the day on which
the decision is given, the Commission appeals to an umpire on
the ground that the board ... did not take into account a
provision of the Act or these Regulations.
As the appeal at bar was not initiated within
twenty-one days the claimant appears to be en
titled to her benefits, although the appeal was
brought within the sixty days allowed by
section 98.
However, the Commission argued that in effect
the decision of the Board of Referees is void,
because the Board was not entitled to decide
whether the claimant held insurable employment
within the qualifying period, and the procedure
indicated was that undertaken by the Commission,
of seeking a decision from the Minister on this
matter.
Section 75(3) of the Act reads:
75. ...
(3) Where any question arises in relation to a claim for
benefit under this Act whether
(a) any person is or was employed in insurable employment,
or
(b) a person is the employer of an insured person,
the Commission may at any time, and such person or the
employer or purported employer of such person may within
ninety days after the decision of the Commission is notified to
him, apply to the Minister for determination of this question.
Insurable employment is defined in section 3(1)
of the Act, and it is clear that it in no way depends
on the number of contributions, only on the nature
of the employment. I therefore conclude that it
was the Board of Referees which was entitled to
decide whether the claimant had enough contribu
tions, and if the Commission is dissatisfied with
the decision it is certainly entitled to appeal, as it
has done.
If it did not institute an appeal within twenty-
one days the benefits must be paid. The later
decision of the Minister, on December 1, changes
nothing in this regard, and indeed in my opinion
this is not a question that should be submitted to
the Minister for decision. It is not even necessary
for applicant to appeal the said decision, which
under section 84(1) should be implemented within
ninety days of the Minister's decision of December
1, 1978, If there is a conflict between this decision
and that of the Board of Referees, the decision of
the Umpire in the Commission's appeal will
resolve it.
Issuance of the writ of mandamus is therefore
granted, with costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.