A-729-80
Vicky E. Silk (Applicant)
v.
Umpire constituted under section 92 of the Unem
ployment Insurance Act (Respondent)
Court of Appeal, Thurlow C.J., Heald J. and
Hyde D.J.—St. John's, September 2; Ottawa, Sep-
tember 17, 1981.
Judicial review — Unemployment insurance — Application
to review and set aside the Umpire's decision confirming the
decision of a Board of Referees denying the applicant's claim
for unemployment insurance benefits — Applicant worked
from February 2 to March 6 as a bagger and from July 15 to
November 2 as a fisherman — Subparagraph 85(1)(b)(i) of the
Unemployment Insurance Regulations requires that twenty
weeks of insurable employment be within a period commencing
with the last Sunday of March — Whether subpara. 85(1)(b)(i)
is ultra vires in that it prescribes a different requirement for a
qualifying period from that provided by the Act — Applica
tion is 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, ss. 2, 17, 18, 19, 20, 146 — Unemployment
Insurance Regulations, C.R.C. 1978, Vol. XVIII, c. 1576, ss.
75, 85.
Application to review and set aside the decision of the
Umpire confirming the decision of the Board of Referees
denying the applicant's claim for unemployment insurance
benefits. The applicant worked from February 2 to March 6 as
a bagger, and from July 15 to November 2, a period of sixteen
weeks, as a fisherman. The claim for benefits was made on
November 6 and rejected on November 21. Subparagraph
85(1)(6)(i) of the Unemployment Insurance Regulations
requires that twenty weeks of insurable employment be within a
period commencing with the last Sunday of March. The issue is
whether subparagraph 85(1)(b)(i) is ultra vires and invalid in
that it prescribes a different requirement for a qualifying period
from that provided by the Act. The respondent submits that the
Commission was authorized by section 146 of the Act to
establish a separate and distinct system of unemployment
insurance for persons engaged in fishing who would not other
wise be eligible to receive benefits.
Held, the application is allowed. Subsection 146(1) has three
paragraphs each conferring a separate power to make regula
tions with respect to defined subject-matter. Further, neither
paragraph (a) nor (b) nor (c) nor the combination of them
suggests that the power is one to set up an entirely separate
unemployment insurance scheme for the fishermen to be
insured under it. Paragraph (a) appears to intend that regula
tions be made for "including as an insured person" a fisherman
notwithstanding that he is not an employee of any other person.
When such a regulation has been made the fisherman is to fall
within the definition of and be treated as an insured person
under the Act notwithstanding that he is not an employee. The
effect of paragraph (b) is similar. The regulations to be made
are not merely to be regulations that treat the fishermen as
insured persons within the meaning of the Act, but to include
them in the unemployment insurance scheme established by the
Act. The scope of paragraph (c) is limited to "all such other
matters as are necessary" to provide unemployment insurance
for such fishermen. Paragraph (c) authorizes the making of
other regulations that may be necessary to integrate fishermen
who are not employees as insured persons into the scheme of
the Act for providing unemployment insurance benefits for
employed persons. The paragraph does not authorize the setting
up for such fishermen of a separate and more restrictive
unemployment insurance scheme requiring them to qualify in a
different period from that prescribed by section 18 for an
"insured person". Subparagraph 85(1)(b)(i) is in conflict with
the statute and is ultra vires and invalid. The qualifying period
was the fifty-two week period immediately preceding the filing
of her claim.
APPLICATION for judicial review.
COUNSEL:
G. M. Cummins for applicant.
M. J. Butler for respondent.
SOLICITORS:
George M. Cummins, St. John's, for appli
cant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered 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 the
decision of an Umpire under the Unemployment
Insurance Act, 1971, S.C. 1970-71-72, c. 48,
which confirmed the decision of a Board of
Referees denying the applicant's claim for unem
ployment insurance benefit. The issue raised by
the application is whether the requirement of sec
tion 85 of the Unemployment Insurance Regula
tions, C.R.C. 1978, Vol. XVIII, c. 1576, relating
to the qualifying period for persons engaged in
fishing is ultra vires and invalid in that it pre
scribes a different requirement from that provided
by the Act.
The Act establishes a system for collecting from
employees and employers premiums that are cred
ited to an Unemployment Insurance Account in
the Consolidated Revenue Fund and for payments
from the fund to insured persons who have had an
interruption of earnings from their employment.
The Commission, with the approval of the Gover
nor in Council, is authorized to make regulations
on a number of subjects but none of these includes
power to make regulations abridging the qualify
ing period of an insured person as set out in the
statute. The system for qualifying for benefit is
provided for in sections 17 to 20 inclusive which
provide, inter alia, as follows:
17. (1) Unemployment insurance benefits are payable as
provided in this Part to an insured person who qualifies to
receive such benefits.
(2) An insured person who is a new entrant or re-entrant to
the labour force qualifies to receive benefits under this Act if he
(a) has had twenty or more weeks of insurable employment
in his qualifying period; and
(b) has had an interruption of earnings from employment.
18. (1) Subject to subsections (2) to (5), the qualifying
period of an insured person is the shorter of
(a) the period of fifty-two weeks that immediately precedes
the commencement of a benefit period under subsection (1)
of section 20, .. .
19. When an insured person who qualifies under section 17
makes an initial claim for benefit, a benefit period shall be
established for him and thereupon benefit is payable to him in
accordance with this Part for each week of unemployment that
falls in the benefit period.
20. (1) A benefit period begins on the Sunday of the week in
which
(a) the interruption of earnings occurs, or
(b) the initial claim for benefit is made,
whichever is the later.
The expression "insured person" is defined in
section 2 as meaning "a person who is or has been
employed in insurable employment."
The scope of this definition is, however, subject
to expansion by Regulations passed under section
146, a provision that is found in Part IX of the
Act. It reads:
146. Notwithstanding anything in this Act, the Commission
with the approval of the Governor in Council may make
regulations for
(a) including as an insured person any person who is engaged
in fishing (hereinafter in this section called a "fisherman"),
notwithstanding that such person is not an employee of any
other person;
(b) including as an employer of a fisherman any person with
whom the fisherman enters into a contractual or other com
mercial relationship in respect of his occupation as a fisher
man; and
(c) all such other matters as are necessary to provide unem
ployment insurance for such fishermen.
(2) Notwithstanding any other provision of this Act, premi
ums collected pursuant to any regulations made under this
section shall be paid into and credited to the Consolidated
Revenue Fund and benefits paid pursuant to any such regula
tion shall be paid out of and charged to the Consolidated
Revenue Fund.
(3) This section shall be repealed on a day to be fixed by
proclamation.
Under this authority Regulations have been
made which include:
75. Any person who is a fisherman shall be included as an
insured person and, subject to this Part, the Act and any
regulations made under the Act apply to that person with such
modifications as the circumstances require.
85. (1) Subject to this section, where a claimant who is not a
year-round fisherman makes a claim for the purposes of estab
lishing a benefit period during or after the week in which
November 1st falls and before the week in which May 15th
next following falls and proves that
(a) he is not qualified under section 17 of the Act to receive
benefits, and
(b) he has the number of weeks of insurable employment
required by section 17 of the Act
(i) subsequent to the most recent Saturday preceding
March 31st that immediately precedes the Sunday of the
week in which he makes his claim, or
(ii) since the commencement date of his last benefit
period,
whichever is the shorter,
a benefit period shall be established for him.
(2) Benefits are payable to a claimant for each week of
unemployment that falls in a benefit period established for him
pursuant to subsection (1) under those provisions of Part II of
the Act other than paragraphs 17(2)(b), (3)(b) and (4)(b) and
section 34, that apply to benefits.
It is the validity of the requirement of subpara-
graph 85 (1) (b) (i) that is in question on this
application.
It is common ground that in 1979 the applicant
was a new entrant to the labour force within the
meaning of the Act. She was employed as a bagger
in a packaging operation for four weeks from
February 2 to March 6 of that year, a period that
was, by itself, short of the twenty weeks required
by subsection 17(2) to qualify her for benefit.
However, from July 15, 1979, to November 2,
1979, a period of sixteen weeks, she was engaged
as a fisherman. Premium contributions were paid
in respect of all twenty weeks in which she worked.
Her claim for benefit, based on her having been an
insured person both when employed as a bagger
and when engaged in fishing, was made on
November 6, 1979. It follows that if subsection
85(1) of the Regulations is valid, her claim cannot
succeed.
The submission put forward in support of the
Regulation, as I understand it, was that the Com
mission was authorized by section 146 of the Act
to establish and had established a separate and
distinct system of unemployment insurance for
persons engaged in fishing who would otherwise
not be eligible to receive benefits.
That, however, does not seem to have been the
view held by the officer who rejected the appli
cant's claim on November 21, 1979. His letter
indicates that if the four weeks as a bagger had
been worked after, rather than before, the appli
cant's engagement in fishing the sixteen weeks of
fishing and the four weeks' employment as a
bagger together would have qualified her to
receive benefit. Moreover, it follows from the
Commission's position that even if the applicant
had worked as a bagger for nineteen weeks and
followed it with nineteen weeks as a fisherman she
would not qualify for benefit even though premi
ums would have been paid for the whole thirty-
eight weeks. The unfairness of such a result from
the Regulations as enacted, coupled with the con
sideration that if the regulation-making power is
as broad and plenary as contended regulations
capable of producing even grosser results could be
enacted, suggests the need to examine the extent of
the power conferred by section 146.
It may first be noted that subsection 146(1) has
three paragraphs each conferring a separate power
to make regulations with respect to defined
subject-matter. Further, neither paragraph (a) nor
(b) nor (c) nor the combination of them suggests
that the power is one to set up an entirely separate
unemployment insurance scheme for the fishermen
to be insured under it. Had that been the intent, it
would have been unnecessary to have three para
graphs. The whole could have been accomplished
by simply giving power to make regulations to
provide unemployment insurance for fishermen,
notwithstanding that they were not employees of
any person. The power is thus not unlimited.
What paragraph (a) appears to me to intend is
that regulations may be made for "including as an
insured person" a fisherman notwithstanding that
he is not an employee of any other person. When
such a regulation has been made the fisherman is
to fall within the definition of and be treated as an
insured person under the Act notwithstanding that
he is not an employee. In consequence he will have
to pay premiums.
The effect of paragraph (b) is similar. Under it
regulations may be made for including as an
employer a person with whom the fisherman has a
contractual or commercial relationship in respect
of his occupation as a fisherman, notwithstanding
the fact that the person to be included as an
employer is not an employer at all. In consequence
that person too will have to pay premiums.
It is apparent from reading these paragraphs
that the regulations to be made are not merely to
be regulations that treat the fishermen as insured
persons within the meaning of the Act but to
include them in the unemployment insurance
scheme established by the Act for employed
persons.
When one comes to paragraph (c) the first thing
to be noted is that its scope is limited not to all
other conceivable matters, but to "all such other
matters as are necessary", to provide unemploy
ment insurance for such fishermen. Other than
what? Other than the matters referred to in para
graphs (a) and (b), but only such as are necessary
to provide unemployment insurance for such
fishermen.
This then raises the question of what regulations
are necessary to provide unemployment insurance
for such fishermen. The widest possible interpreta
tion, which is consistent with the position taken by
counsel for the Commission, is that it embraces
whatever the regulation-making authority may
consider to be necessary. Another view, however,
and the one that appears to me to be more con
sistent with the language used is that paragraph
(c) authorizes the making of other regulations that
may be necessary to integrate fishermen who are
not employees as insured persons into the scheme
of the Act for providing unemployment insurance
benefits for employed persons. Matters in respect
of which the Commission has regulation-making
power under the Act with respect to employees
may also fall within the concept of what is neces
sary in section 146. But, so interpreting the para
graph, it seems to me to be clear that it does not
authorize the setting up for such fishermen of a
separate and more restrictive unemployment insur
ance scheme requiring them to qualify in a differ
ent period from that prescribed by section 18 of
the statute itself for an "insured person", that is to
say, in the case of a new entrant to the labour
market, twenty weeks of insurable employment in
the fifty-two week period immediately preceding
the making of a claim for benefit. In my opinion,
therefore, the requirement of subparagraph
85(1)(b)(i) of the Regulations that the twenty
weeks of insurable employment be within a period
commencing with the last Sunday of March is in
conflict with the statute and is ultra vires and
invalid.
I would set aside the Umpire's decision and
refer the matter back to the Umpire for determi
nation on the basis that the qualifying period for
the applicant's claim was the fifty-two week period
immediately preceding the filing of her claim on
November 6, 1979 and on the further basis that in
that period the applicant had the total of twenty
weeks of insurable employment required by the
Act.
With respect to costs, Rule 1408 provides that:
Rule 1408. No costs shall be payable by any party to an
application to another unless the Court, in its discretion, for
special reason, so orders.
Similar Rules, 1505 and 1312, apply to the costs
of references under subsection 28(4) of the Feder
al Court Act and of statutory appeals to the Court
from the decisions of federal administrative tri
bunals. The purpose of the Rule, in departing from
the general principle which applies to appeals from
the Trial Division that costs should follow the
event unless there are reasons for depriving a
successful party of costs, is to assure to a person
who is adversely affected by the decision of a
federal administrative tribunal the right to chal
lenge the decision in this Court without running
the risk of being ruined by costs if he loses. The
Court has on occasion awarded costs where it was
of the opinion that the proceeding in the Court was
so forlorn that bringing it was an abuse of the
process or where an application was so plainly well
founded that it should not have been resisted. The
impecuniosity of a party, however, has not been
regarded as a special reason, within the meaning
of the Rule, and in my opinion it should not be
regarded as a special reason for awarding costs in
the present case.
* * *
HEALD J.: I concur.
• * *
HYDE D.J.: I concur.
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.