A-223-79
Émile Langford (Applicant)
v.
Employment and Immigration Commission,
Roger Poirier, Gaby Cloutier and Jeanne D'Arc
Villeneuve (Respondents)
and
Deputy Attorney General of Canada (Mis -en-
cause)
Court of Appeal, Pratte and Le Dain JJ. and Hyde
D.J.—Montreal, September 19 and 21, 1979.
Judicial review — Unemployment insurance — Board of
Referees dismissed applicant's appeal and confirmed Employ
ment and Immigration Commission's decision that applicant
not entitled to receive benefits paid him by mistake — Appli
cant not entitled to benefits paid him pursuant to s. 37 of the
Act if national and regional rates of unemployment determined
in accordance with s. 166(2) of the Regulations — Whether or
not Employment and Immigration Commission had power to
enact s. 166(2) of the Regulations — Unemployment Insurance
Act, 1971, S.C. 1970-71-72, c. 48, s. 37 — Unemployment
Insurance Regulations, SOR/71-324, s. 166(2).
APPLICATION for judicial review.
COUNSEL:
R. Cousineau for applicant.
R. Paquette for R. Biais.
J. M. Aubry for respondents and mis -en-
cause.
SOLICITORS:
Cousineau & Beauvais, Montreal, for appli
cant.
Paquette & Meloche, Montreal, for R. Biais.
Deputy Attorney General of Canada for
respondents and mis -en-cause.
The following is the English version of the
reasons for judgment delivered orally by
PRATTE J.: Applicant is challenging, pursuant
to section 28 of the Federal Court Act, R.S.C.
1970 (2nd Supp.), c. 10, a unanimous decision of a
Board of Referees acting in accordance with sec
tions 94 et seq. of the Unemployment Insurance
Act, 1971, S.C. 1970-71-72, c. 48. By this decision,
the Board dismissed an appeal by applicant and
affirmed the decision of the Employment and
Immigration Commission that applicant was not
entitled, under section 37 of the Unemployment
Insurance Act, 1971, to receive the benefits paid to
him by mistake from December 11, 1977 to Janu-
ary 7, 1978.
It is common ground that the benefits received
by applicant from December 11, 1977 to January
7, 1978 were paid to him pursuant to section 37 of
the Act, and that under that section, as it then
stood, applicant was only entitled to these benefits
if, at the time, the unemployment rate in the
region where he resided exceeded four per cent,
and if at the same time the national unemploy
ment rate was less than the regional rate by more
than one per cent.'
It is further admitted that, from December 11,
1977 to January 7, 1978, the conditions laid down
by section 37(1) were not met, and that according
ly applicant was not entitled to the benefits which
he received, if the national and regional unemploy
ment rates referred to by section 37 must be
determined in accordance with the provisions of
section 166(2) of the Unemployment Insurance
Regulations, SOR/71-324. This section reads as
follows:
166....
(2) For the purposes of section 37 of the Act, "national rate
of unemployment" and "regional rate of unemployment" at any
time means the average of the unadjusted monthly national or
regional rates of unemployment respectively as determined by
Statistics Canada for the most recent twelve-month period
' The text of section 37(1) then read as follows:
37.(1) When at the end of
(a) a re-established initial benefit period of a minor
attachment claimant who has no extended benefit period
under section 34, or
(b) the extended benefit period under section 34 of any
other claimant
the rate of unemployment in the region where the claimant
resides (in this section called the "regional rate") exceeds
four per cent and the national rate of unemployment (in this
section called the "national rate") is less than the regional
rate by more than one percentage point, the claimant shall, if
he resides in Canada, be given an extended benefit period not
exceeding eighteen consecutive weeks and benefits are pay
able for any week of unemployment that falls in that period
and sections 35 and 36 are applicable thereto.
immediately preceding the time for which those rates are
available.
The only question raised by this appeal is wheth
er the Commission had the power to enact this
section of the Regulations.
Counsel for the applicant maintained that sec
tion 58 of the Act, which defines the regulatory
power of the Commission, did not authorize it to
adopt section 166(2), because this section of the
Regulations, in his submission, gives to the phrases
"national rate of unemployment" and "regional
rate of unemployment" a meaning which cannot
be reconciled with the definitions contained in
paragraphs 2(1)(s) and 2(1)(w) of the Act, which
read as follows:
2. (1) In this Act,
(s) "national rate of unemployment" means the rate of
unemployment as determined by Statistics Canada for the
whole of Canada, and "average national rate of unemploy
ment" means the monthly national rates of unemployment in
a year averaged for the year;
(w) "rate of unemployment" means the rate of unemploy
ment as determined from time to time in a year;
To this argument counsel for the respondents
replied that the Commission, in enacting section
166(2) of the Regulations, merely exercised the
power conferred on it by section 58(u) of the Act,
by which
58. The Commission may, with the approval of the Governor
in Council, make regulations
(u) averaging any rates of unemployment for the purposes of
paying extended benefits and prescribing the manner in
which such averaging shall be carried out;
In my opinion, applicant's argument must be
rejected.
The legislative and regulatory provisions which I
have cited could certainly have been worded more
carefully. Despite their obscurity, however, I have
no doubt that the adoption of section 166(2) of the
Regulations was authorized by section 58(u) of the
Act.
Section 58(u) gives the Commission the power
to average any rates of unemployment and pre
scribe the manner in which such averaging shall be
carried out "for the purposes of paying extended
benefits". The only provisions of the Act dealing
with extended benefits are contained in sections 34
to 38 of the Act. Section 58(u) assumes, therefore,
that in order to apply the provisions reference will
be made to average rates of unemployment. Sec
tions 34 to 38 (in particular section 37) contain no
express reference to average unemployment rates:
they only require that the regional unemployment
rate and the national unemployment rate be deter
mined at given times. This is what leads to dif
ficulty and enables counsel for the applicant to
maintain that a regulation adopted under section
58(u) cannot affect the application of section
37(1). However, it should not be forgotten that
section 58(u) must be interpreted having regard to
sections 34 to 38, so as to give effect to all the
provisions which these sections contain. That being
the case, I think it is clear that the words "for the
purposes of paying extended benefits" in section
58(u) mean "for the purpose of determining the
unemployment rates for purposes of sections 34 to
38". If section 58(u) is interpreted in this way, it is
clear that section 166(2) of the Regulations was
validly enacted.
For these reasons, I would dismiss the
application.
* * *
LE DAIN J. concurred.
* * *
HYDE D. J. concurred.
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.