T-2531-81
Attorney General of Canada (Applicant)
v.
Board of Referees constituted pursuant to section
91 of the Unemployment Insurance Act, 1971 and
comprising E. Berry, E. Barrett and O. Quinn
(Respondent)
Trial Division, Mahoney J.—Ottawa, May 19 and
20, 1981.
Prerogative writs — Prohibition — Applicant seeking to
prohibit Board of Referees from hearing an appeal from a
decision of the Employment and Immigration Commission —
Complaint before the Commission that employees had not
benefited from a reduction of employer's premium granted to
the employer company, contrary to s. 25(1) of the Unemploy
ment Insurance Regulations, dismissed — Whether Board of
Referees has jurisdiction to hear the appeal — Unemployment
Insurance Act, 1971, S.C. 1970-71-72, c. 48, ss. 2(1)(b), 17, 19,
64(1),(4), 94(1) — Unemployment Insurance Regulations,
C.R.C. 1978, Vol. XVIII, c. 1576, ss. 24(2),(3),(4), 25(1), 60.
Employment and Immigration Commission of Canada v.
MacDonald Tobacco Inc. [1981] 1 S.C.R. 401, referred to.
Cornish-Hardy v. Board of Referees constituted under
section 91 of the Unemployment Insurance Act, 1971
[1979] 2 F.C. 437; affirmed [1980] 1 S.C.R. 1218,
applied.
APPLICATION.
COUNSEL:
P. Annis for applicant.
Allan R. O'Brien for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Nelligan/Power, Ottawa, for respondent.
The following are the reasons for judgment
rendered in English by
MAHONEY J.: The Attorney General of Canada
seeks to prohibit a Board of Referees, constituted
under the Unemployment Insurance Act, 1971,'
from hearing an appeal from a decision of the
Canada Employment and Immigration Commis
sion, hereinafter "the Commission", on the ques-
' S.C. 1970-71-72, c. 48.
tion of an employer's compliance with the provi
sions of subsection 25 (1) of the Unemployment
Insurance Regulations 2 concerning the sharing of
premium reductions received by the employer. The
Attorney General, expressly, did not rely on the
fact that the appeal to the Board of Referees was
taken by a trade union, rather than individual
employees, wishing to have the question deter
mined on its merits. The respondent conceded that
this Court is bound by a decision of the Federal
Court of Appeal 3 that the Attorney General,
although not a party to the proceedings before the
Board of Referees, has the right to make such an
application, notwithstanding the dictum of the
Supreme Court of Canada in the appeal
therefrom.' The Commission, members of the
Board of Referees, the employer and the union
were served with the originating notice of motion.
Counsel for the Attorney General and the union
only sought to be heard.
The Act provides:
64. (1) Unless another rate of premium is provided for a
year pursuant to this section, the employer's premium to be
paid in a year by an employer of an insured person shall be 1.4
times the employee's premium for that year.
(4) The Commission shall, with the approval of the Governor
in Council, make regulations to provide a system for reducing
an employer's premium payable under this Act when the
payment of any allowances, monies or other benefits under a
plan that covers insured persons employed by the employer,
other than one established under provincial law, would have the
effect of reducing the benefits that are payable to such insured
persons under the Act, in respect of unemployment caused by
illness or pregnancy, if insured persons employed by the
employer will benefit from the reduction of the employer's
premium in an amount at least equal to five-twelfths of the
reduction.
Subsection 25 (1) of the Regulations iterates the
condition of subsection 64(4) of the Act that:
25. (1) A reduction of an employer's premium may be
granted only if insured persons employed by an employer will
benefit from the reduction in an amount at least equal to 5/12
of the reduction.
2 C.R.C. 1978, Vol. XVIII, c. 1576.
3 In re Anti-dumping Tribunal [1973] F.C. 745, at pp. 758
ff.
4 [1976] 2 S.C.R. 739, at pp. 741 ff.
The United Food Processors Union, Local 483,
on behalf of insured persons employed by The
Canada Starch Company Limited, complained to
the Commission that those employees had not, in
fact, benefited from a reduction of employer's
premium granted the Company. The Commission
investigated the complaint and determined that the
required share of the reduction had, in fact, been
passed on. That is the decision which was appealed
to the Board of Referees and which the Board has
decided it has jurisdiction to entertain.
Apart from sections 56 and 57, neither of which
is in play, a board of referees derives its jurisdic
tion from subsection 94(1) of the Act.
94. (1) The claimant or an employer of the claimant may at
any time within thirty days from the day on which a decision of
the Commission is communicated to him, or within such fur
ther time as the Commission may in any particular case for
special reasons allow, appeal to the board of referees in the
manner prescribed.
Paragraph 2(1) (b) provides:
2. (1) In this Act,
(b) "claimant" means a person who applies or has applied for
benefit under this Act;
"Benefit" is not defined.
The Act and Regulations make no provision for
an employee to apply for the benefit of the share of
his employer's rate reduction. Rather, the require
ment that he so benefit is a condition precedent to
the approval of the employer's application for the
reduction.
Section 24 of the Regulations, after providing
for the making of such application, goes on:
24....
(2) Upon receiving an application for a reduction of an
employer's premium, an officer of the Commission shall decide
whether or not a reduction shall be made.
(3) An employer may, within 30 days of the mailing of a
notice of a decision made pursuant to subsection (2), or within
such further time as the Commission may allow, apply for a
review of the decision by a review panel consisting of officers
designated by the Commission.
(4) An employer who is not satisfied with the decision of the
review panel referred to in subsection (3) may appeal to the
Commission for a final determination of the question.
After reciting those provisions, the Supreme Court
of Canada observed: 5
What is evident from the Regulations and, especially the
quoted provisions of s. 24, is that there is a one-way review
prescribed in respect of an application for a premium reduction,
namely, a review at the instance of the employer. If, as in the
present case, a premium reduction is allowed by the Commis
sion's officer, there is nothing in the Regulations that permits
review of the allowance if the employer is satisfied with it;
neither the officer nor the Review Panel nor the Commission
itself is given any express power to act on his or its own
initiative to set aside an allowed reduction after it has been
granted. Only the employer may, under the Regulations, con
test a decision which is unfavourable to it.
The Supreme Court was not, in that case, consid
ering the position of employees; however, the
determination, once made, would appear no more
open to review by the Commission at the instance
of the employees than it is suo motu.
Section 60 of the Regulations, formerly section
175, permits the Commission to remit certain
liabilities arising under the Act, such as penalties
and overpayments of benefit. A refusal to remit
has been held to be a decision not appealable to a
board of referees under section 94 of the Act. 6
For an employee to have a right of appeal to a
board of referees under section 94, he must be a
claimant. He can be a claimant only if, at the
appeal stage, he has applied for benefit under the
Act. A request that the Commission review the
employer's compliance with the requirement that
its employees benefit from the rate reduction as
prescribed is no more an application for benefit
under the Act than is a request for remission under
section 60 of the Regulations.
In the latter case, at least, a "benefit" in the
broad sense of that word, is clearly being sought. I
will refrain from speculation on just what the
"benefit" might have been for the employees here
if the Commission had found as they alleged.
5 Employment and Immigration Commission of Canada v.
MacDonald Tobacco Inc. [1981] 1 S.C.R. 401 at pp. 404-405.
6 Cornish-Hardy v. Board of Referees constituted under
section 91 of the Unemployment Insurance Act, 1971 [1979] 2
F.C. 437. Affirmed [1980] 1 S.C.R. 1218.
However, in my view, the "benefit under this Act"
for which a person must have applied in order to
be a "claimant" with a right of appeal to a board
of referees is not benefit in that broad sense. The
whole scheme of the Act leads to the conclusion
that the term "benefit under this Act" means the
"unemployment insurance benefits" made payable,
by section 17, under Part II of the Act, and
required to be applied for by section 19. On apply
ing, an "insured person" becomes a "claimant".
The Board of Referees is without jurisdiction to
hear this appeal. The application will be allowed
without costs. The applicant may, if it is required,
draft and submit a formal order.
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.