BETWEEN:
and
Hearing held at Edmonton, Alberta, on March 13, 2007.
Judgment delivered at Ottawa, Ontario, on April 3, 2007.
REASONS FOR JUDGMENT: LÉTOURNEAU J.A.
CONCURRED IN BY: DESJARDINS J.A.
RYER J.A.
Docket: A-314-06
Citation: 2007 FCA 134
CORAM: DESJARDINS J.A.
LÉTOURNEAU J.A.
RYER J.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
and
CHRISTOPHER PRINS
Respondent
REASONS FOR JUDGMENT OF THE COURT
[1] Is the respondent in the instant case, who is enrolled in an approved apprenticeship program, subject to the waiting period under section 13 of the Employment Insurance Act, S.C. 1996, c. 23 (Act), or is this waiting period waived for him under section 39.1 of the Employment Insurance Regulations, SOR/96/332 (Regulations)? The waiting period is a two-week period during which time a claimant is not eligible for employment insurance benefits.
[2] This is the issue before us. It is obviously important to the respondent in this case, but it is also important for the fair application of the Act because it has given rise to conflicting decisions which I will come back to.
[3] In the course of these reasons, I will on occasion use the term “apprentice”, used in the Regulations, to describe the status of the respondent and of those who, like him, are enrolled in the apprenticeship programs approved by the Canada Employment Insurance Commission (Commission).
[4] For a better understanding of the problem raised by the application for judicial review before us, it is important at this juncture to reproduce the relevant provisions of the Act and Regulations. I have already referred to sections 13 and 39.1. I must also add section 25 of the Act, which creates, as it were, a presumption of status for a claimant who, like the respondent in question, is attending a training course to which he has been referred by the Commission. He is then deemed to be unemployed and capable of and available for work, which allows him to meet the eligibility criteria for benefits under the Act:
Act
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Waiting period
13. A claimant is not entitled to be paid benefits in a benefit period until, after the beginning of the benefit period, the claimant has served a two week waiting period that begins with a week of unemployment for which benefits would otherwise be payable.
Status of claimants
25. (1) For the purposes of this Part, a claimant is unemployed and capable of and available for work during a period when the claimant is
(a) attending a course or program of instruction or training at the claimant’s own expense, or under employment benefits or similar benefits that are the subject of an agreement under section 63, to which the Commission, or an authority that the Commission designates, has referred the claimant; or
(b) participating in any other employment activity (i) for which assistance has been provided for the claimant under prescribed employment benefits or benefits that are the subject of an agreement under section 63 and are similar to the prescribed employment benefits, and (ii) to which the Commission, or an authority that the Commission designates, has referred the claimant.
(2) A decision of the Commission about the referral of a claimant to a course, program or other employment activity mentioned in subsection (1) is not subject to appeal under section 114 or 115. |
Délai de carence
13. Au cours d’une période de prestations, le prestataire n’est pas admissible au bénéfice des prestations tant qu’il ne s’est pas écoulé, à la suite de l’ouverture de cette période de prestations, un délai de carence de deux semaines qui débute par une semaine de chômage pour laquelle des prestations devraient sans cela être versées.
Statut des prestataires
25. (1) Pour l’application de la présente partie, un prestataire est en chômage, capable de travailler et disponible à cette fin durant toute période où :
a) il suit, à ses frais ou dans le cadre d’une prestation d’emploi ou d’une prestation similaire faisant l’objet d’un accord visé à l’article 63, un cours ou programme d’instruction ou de formation vers lequel il a été dirigé par la Commission ou l’autorité qu’elle peut désigner;
b) il participe à toute autre activité d’emploi pour laquelle il reçoit de l’aide dans le cadre d’une prestation d’emploi prévue par règlement ou d’une prestation similaire faisant l’objet d’un accord visé à l’article 63 et vers laquelle il a été dirigé par la Commission ou l’autorité qu’elle peut désigner.
(2) Aucune décision de diriger ou de ne pas diriger un prestataire vers un cours, un programme ou quelque autre activité visés au paragraphe (1) n’est susceptible d’appel au titre des articles 114 ou 115. |
Regulations
|
Waiving of the Waiting Period for Apprentices
39.1 The waiting period shall be waived if the following conditions are met:
(a) the claimant is attending a course that is a required part of an apprenticeship program and to which they are referred pursuant to paragraph 25(1)(a) of the Act;
(b) the claimant has ceased working for the reason described in paragraph (a); and
(c) the claimant has, after the coming into force of this section, served a waiting period in respect of a course that is a required part of the same apprenticeship program. |
Suppression du délai de carence
39.1 Le délai de carence d’un prestataire est supprimé lorsque les conditions suivantes sont réunies :
a) le prestataire suit un cours qui est une partie obligatoire d’un programme d’apprentissage vers lequel il a été dirigé conformément à l’alinéa 25(1)a) de la Loi;
b) il a cessé de travailler pour la raison indiquée à l’alinéa a);
c) il a, après l’entrée en vigueur du présent article, purgé un délai de carence relativement à un cours faisant partie du même programme d’apprentissage. |
(Emphasis added.)
[5] I hasten to emphasize the use of the present tense in sections 25 and 39.1. The English wording, “is attending”, which is rendered in French by “il suit”, is even more suggestive of the fact that the action is present, as opposed to being in the past or the future (i.e., he attended or will attend), so that the conditions required for a claimant to receive the benefits provided by these two provisions can materialize. As we will see, the solution to the instant case rests on the interpretation of the terms employed by Parliament.
The facts and the procedure
[6] The facts are not in issue. The respondent worked for Keltic Building Ltd. for the period from December 27, 2003, to December 24, 2004. In January 2005, more specifically, on January 4, he enrolled in the second year of a woodworking training course at the Northern Alberta Institute of Technology. On December 27, 2004, he applied for employment insurance benefits, beginning on January 4, 2005. On his claim, he gave, as the reason for the cessation of employment, the fact that he was attending the second year of training in the program already approved by the Commission: see applicant’s file at page 22. This is also what the employer indicated on his Record of Employment: ibid., at page 26.
[7] However, it happened that the employer temporarily closed shop for the holidays, from December 24, 2004, to January 3, 2005. The respondent, like his co-workers, found himself without employment for this brief period of time.
[8] Pursuant to sections 13 and 25 of the Act and paragraph 39.1(b) of the Regulations, the Commission refused to pay benefits for a two-week period corresponding to the waiting period under the Act. It said that, in its opinion, the exception provided for in section 39.1 of the Regulations did not apply since there was a failure to comply with the condition provided for in paragraph (b) of this provision: the respondent had not ceased to work because he was attending a training course, but rather because the business had closed due to a shortage of work.
[9] This decision was challenged before a Board of Referees. It allowed the respondent’s appeal and set aside the decision of the Commission. It found that the conditions for waiving the waiting period were met. The Commission’s appeal from this decision before the Umpire was dismissed by the latter on May 26, 2006. This prompted the application for judicial review requiring our intervention.
Analysis of the decision of the Umpire
[10] Essentially, the Umpire endorsed the conclusion of the Board of Referees: the reason for the cessation of employment was the return to the training program and not the temporary closing of the business.
[11] In addition, the Umpire regretted that the respondent had been forced to stop working sooner than he wanted. However, in his opinion, this fact did not alter the situation since it was not the reason why the employment had ended.
[12] From these findings of fact, the Umpire concluded that the evidence clearly established that the respondent met the conditions of section 39.1 of the Regulations and that a waiting period could not be imposed on him.
The alleged error of the Umpire and its consequences
[13] Counsel for the applicant submits that there was a misunderstanding on the part of the Board of Referees and the Umpire regarding the application of section 39.1 of the Regulations. This misunderstanding is alleged to be due to an erroneous interpretation of the provision.
[14] Paragraph (c) of section 39.1 is not in issue. The respondent already served a waiting period in January 2004, and the training course of January 2005 is part of the same apprenticeship program. Therefore, the condition in paragraph (c) is met.
[15] It is instead on paragraph (b) that counsel for the applicant relies. According to him, the respondent did not cease to work on December 24, 2004, because he was taking a course, but clearly because the business was closed. Since the conditions of section 39.1 are cumulative and that of paragraph (b) was not met, the exemption allowed by section 39.1 cannot apply.
[16] As mentioned earlier, the application of section 39.1 of the Regulations has led to differing conclusions that are not necessarily reconcilable.
[17] Wiens (CUB 65967), May 19, 2006, Evan (CUB 64242), August 29, 2005, McKenzie (CUB 64468), October 19, 2005, and Turcotte (CUB 66592), September 11, 2006 (review by our Court pending), all involve the closing of a business for the holiday period of Christmas and New Year’s Day and an apprentice who, upon the reopening of the business, enters a training course approved by the Commission. Pursuant to paragraph (b) of section 39.1, a waiver of the waiting period was denied in Wiens and Evan, but accepted in McKenzie, Turcotte and in the instant case.
[18] In Zimmer (CUB 64365), September 21, 2005, the employer remained open during the period in question, but the employee, for reasons that are still unknown, did not work during that week. He began his training courses on January 3, 2005. He was then denied a waiver of the waiting period. There again, the Umpire found a breach of paragraph (b) because the cessation of employment dated December 25 was not in order to attend a training course.
[19] Counsel for the applicant submits that section 39.1 of the Regulations is an exception to the principle of section 13 of the Act and, therefore, it should be given a narrow and restrictive interpretation.
[20] He adds that, all things being equal, that is to say, the condition in paragraph (c) being met, unfair anomalies would result if the waiting period were not applied. Thus, an apprentice who returns to his training program at the beginning of January would receive benefits for the week between Christmas and New Year’s Day while his co-workers would be excluded from these benefits. Furthermore, he would receive benefits for a week before beginning his course while other apprentices who had worked until January 3 would begin to receive benefits only on the date they began their courses.
[21] In reply to a question from a member of this panel, counsel for the applicant readily acknowledged that the application of the waiting period under section 13 of the Act would cause prejudice to apprentices who find themselves in the same situation as the respondent: they are deprived of a week of benefits, namely, the first week of the course, while those who worked until the courses began would receive those benefits from the start of the courses. This situation is in fact the opposite of that in which the apprentice would receive benefits before the others, which counsel for the applicant portrays as abnormal. This reverse situation is, in my opinion, just as abnormal and, furthermore, is unduly punitive since the apprentice loses a week of benefits when, in fact, he is attending his course like the other apprentices.
Nature and objective of the waiting period
[22] The waiting period is a feature of the employment insurance co-insurance system. As stated in the Regulatory Impact Analysis Statement, SOR/2002-280, published in the Canada Gazette, Part 2, Vol. 136, page 1821, it is similar in nature to the deductible in a private insurance contract. Its object is twofold. It eliminates claims for very brief periods of unemployment, which Parliament thinks workers should be able to assume by themselves. It also allows for effective verification of a claim for benefits to determine whether a person is really unemployed or was just laid off for a few days.
[23] However, it quickly became apparent that the requirement for an apprentice who was attending a training course lasting more than one period or session to repeatedly serve a waiting period was a disincentive to enrolling in apprenticeship programs when, in fact, labour shortages were increasing in a number of specialized trades. Some corrective measures representing a reasonable compromise had to be introduced.
[24] Three options were contemplated to correct the situation, including the option of simply abolishing the waiting period in such situations. In view of the objective sought to which reference was made earlier, this solution was discarded: ibid.
[25] However, an analysis of the situation led to the adoption of paragraph (c) of section 39.1 of the Regulations. The waiting period applies only once and not at the beginning of every training course in the same apprenticeship program.
[26] At the time, it was thought that the measure enacted by section 39.1 would benefit some 30,000 claimants annually and would help reduce labour shortages: ibid.
Does the respondent meet the conditions of section 39.1 of the Regulations?
[27] I have focused on the background of section 39.1 since it explains Parliament’s intention in enacting the remedial measure that it contains. If it is true that the measure in section 39.1 of the Regulations is a measure derogating from section 13 of the Act, it is just as true, nevertheless, that section 39.1 should not be interpreted so restrictively as, for all intents and purposes, to strip it of its purpose and deprive it of its benefits.
[28] I repeat, in paraphrasing them, the three conditions for the application of section 39.1:
(a) the claimant must be attending a required course in an apprenticeship program;
(b) he must have stopped working in order to take this course; and
(c) he must have already served a waiting period for a course that is part of the same apprenticeship program.
[29] In my opinion, four facts must be considered in applying section 39.1 to the respondent’s claim for benefits:
(a) he stopped working on December 24, 2004, because the business where he worked closed until January 3, 2005;
(b) work resumed on January 4, 2005;
(c) he did not claim benefits for the period from December 24, 2004, to January 3, 2005; and
(d) he had already served, as mentioned earlier, a waiting period.
[30] Based on these uncontested factual data and the wording of section 39.1, the only questions that arise, then, are the following: where was the respondent on January 4, 2005, what was he doing there and why was he not at work?
[31] On January 4, 2005, the respondent was not at his workplace with his co-workers: he was at the training school with his classmates. What was he doing in this place when he should have been at work? He was attending a course which was a mandatory part of his apprenticeship program. This is the first condition of section 39.1 of the Regulations, and he met it. Why did he stop working on January 4, 2005, when work resumed at his employer’s? Because he was attending a course that was a mandatory part of his apprenticeship program. This is the second condition of section 39.1, and he met it. As for the third condition, it is not at issue.
[32] The Umpire was right to find that the respondent met the three conditions of section 39.1 of the Regulations and, accordingly, that he qualified for a waiver of the waiting period.
[33] In addition to the technical application of the regulatory provision to the facts of this case, I would add that the conclusion which the Umpire reached respects the legislative intent and promotes the pursuit of the greatly desired objectives of providing the labour force with qualifications as described above. It fits within the reasonable compromise adopted by Parliament in cases where a claimant, like the respondent in the circumstances of this case, has already served a waiting period.
Conclusion
[34] For these reasons, I would dismiss the application for judicial review.
[35] Finally, I would like to highlight the responsible position taken by Mr. Heseltine in this case, recognizing that the interpretation defended by him of section 39.1 of the Regulations was prejudicial to the respondent and expressing the wish that the section be legislatively made more flexible. I believe that the conclusion I reached, taking into account the literal meaning of the words used by Parliament and the objective it sought, would allow for the fair resolution of disputes of the same nature as this one.
“I concur with these reasons
Alice Desjardins J.A.”
“I agree.
C. Michael Ryer J.A.”
Certified true translation
Susan Deichert, LLB
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A-314-06
STYLE OF CAUSE: ATTORNEY GENERAL OF CANADA
v. CHRISTOPHER PRINS
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: March 13, 2007
REASONS FOR JUDGMENT BY: LÉTOURNEAU J.A.
CONCURRED IN BY: DESJARDINS J.A.
RYER J.A.
APPEARANCES:
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FOR THE APPLICANT
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FOR THE RESPONDENT
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SOLICITORS OF RECORD:
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Deputy Attorney General of Canada |
FOR THE APPLICANT
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