A-232-80
Norman Strax (Applicant)
v.
Board of Referees under the Unemployment In
surance Act, 1971 (Respondent)
Court of Appeal, Thurlow C.J., Pratte and Le
Dain JJ.—Fredericton, November 3, 1980.
Judicial review — Unemployment insurance — Application
to review and set aside decision of Board of Referees whereby
applicant's benefit period could not be cancelled under subs.
20(5) of the Unemployment Insurance Act, 1971 and s. 40 of
the Unemployment Insurance Regulations — Board's finding
that benefit was payable was the sole reason for its decision
No specific determination as to whether benefit had been paid
— Error in law — Application allowed — Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10, s. 28 — Unemployment
Insurance Act, 1971, S.C. 1970-71-72, c. 48, s. 20(5)
Unemployment Insurance Regulations, C.R.C. 1978, Vol.
XVIII, c. 1576, s. 40.
APPLICATION for judicial review.
COUNSEL:
Gary A. Miller for applicant.
Paul Plourde for respondent.
SOLICITORS:
Fenton, Neill, Janssens & Miller, Frederic-
ton, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment of
the Court delivered orally in English by
THURLOW C.J.: This is an application under
section 28 of the Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10, to review and set aside a
decision of a Board of Referees under the Unem
ployment Insurance Act, 1971, S.C. 1970-71-72, c.
48, as amended, which upheld the decision of an
Unemployment Insurance Officer that because a
week's benefit was payable to the applicant in the
period between 24 September 1978 and 9 June
1979, his benefit period could not be cancelled
under subsection 20(5) of the Act and section 40
of the Unemployment Insurance Regulations,
C.R.C. 1978, Vol. XVIII, c. 1576.
Subsection 20(5) reads as follows:
20....
(5) Where a benefit period is established for a claimant but
benefit is not payable or has not been paid in respect of that
benefit period, the benefit period may, subject to prescribed
conditions, be cancelled by the Commission and deemed not to
have begun.
Under this subsection, a benefit period may be
cancelled if either:
(a) benefit is not payable; or
(b) benefit has not been paid.
In the reasons for its decision, the Board specifi
cally found, contrary to the position taken by the
applicant, that benefit was payable and, as we read
the decision, for that sole reason held that the
applicant's benefit period could not be cancelled.
True, the Board also mentioned that a warrant for
payment of benefit for the week commencing
October 8, 1978, had been issued to the applicant,
although not cashed, and added that there was no
concrete evidence that the applicant did not
receive the cheque. However, the Board did not
specifically find that benefit had been paid to the
applicant and does not appear to have addressed
its mind to that question. We are accordingly of
the opinion that the Board erred in law in not
addressing and answering the question whether or
not benefit was paid to the applicant and that the
decision should not be allowed to stand.
In the course of argument, reference was made
to the wording of section 40 of the Regulations
and it was contended that the section was ultra
vires in that it purports to change the effect of
subsection 20(5) of the Act so as to deny cancella
tion if either benefit was payable or benefit was
paid. We are not persuaded that section 40 pur
ports to alter what subsection 20(5) provides but if
it does, in our view, the provisions of subsection
20(5) must prevail.
At the hearing, it was suggested for the first
time that as the record does not show any formal
request by the applicant for cancellation of his
benefit period prior to October 15, 1979 and as the
applicant had been in receipt of benefit payments
from June to October 1979, he was not entitled to
ask for cancellation of the benefit period which
had been established in September 1978. It is
apparent, however, that both the Unemployment
Insurance Officer and the Board considered the
matter on the basis that what was in issue was
whether the applicant was entitled to benefit or
had been paid benefit for a week in the period
from September 1978 to June 1979 and, on the
material in the record, we think it is to be inferred
that a sufficient request for cancellation of the
benefit period had been made at or before the
applicant was paid benefits in respect of the period
following the renewal of his application on June
15, 1979.
Accordingly, the decision of the Board of
Referees will be set aside and the matter will be
referred back to a board of referees for reconsider
ation and redetermination after rehearing and
deciding the issue whether benefit was paid to the
applicant for the week commencing October 8,
1978.
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.