Date: 19980115
Docket: A-117-97
CORAM: MARCEAU J.A.
DESJARDINS J.A.
LÉTOURNEAU J.A.
IN RE: The Unemployment Insurance Act
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant,
- and -
RODNEY CHINOOK,
Respondent.
Heard at Calgary, Alberta, on Thursday, January 15, 1998.
Judgment delivered from the Bench on Thursday, January 15, 1998.
REASONS FOR JUDGMENT OF THE COURT BY: MARCEAU J.A.
Date: 19980115
Docket: A-117-97
CORAM: MARCEAU J.A.
DESJARDINS J.A.
LÉTOURNEAU J.A.
IN RE: The Unemployment Insurance Act
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant,
- and -
RODNEY CHINOOK,
Respondent.
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Calgary, Alberta,
on Thursday, January 15, 1998)
MARCEAU J.A.
[1] We are all of the view that this application should not succeed. But the peculiarities of the case and the possible ramifications of our decision suggest that we be quite careful in explaining our position. We, therefore, need to put this problem in its factual context.
[2] The respondent applied for benefits on October 9, 1990, the day his employment was terminated, and the Commission established a benefit period for him effective October 7, 1990. According to the rules then applicable, that period was to terminate 50 weeks later. During the next 50 weeks, therefore, the respondent was paid benefits periodically on presenting bi-weekly claims showing that he always met the conditions required to receive benefits. In July 1993, a long-standing action for damages for wrongful dismissal that the respondent had filed against his former employer was settled out of court, by a cash payment to the claimant of $10,500.00. On being made aware of that payment, the Commission reopened the file, applied the provisions of the Act and the Regulations with respect to the allocation of any part of a claimant's remuneration (sections 6 and 9 and regulation 57) and determined that six weeks were required to cover the amount. It followed that the interruption of earnings was, because of the late payment, to be considered as having occurred only on November 19, 1990, which was, therefore, the earliest date that the benefit period could commence. If the law had been unchanged during all the years involved, there would have been no problem. But it happened that the post date of November 19, 1990 coincided with the coming into force of an amendment to the Act that changed the way the number of weeks of benefits were calculated, thereby considerably reducing them. The Commission took the view that the amendment had to be applied to the revision of the respondent's file, leading to a reduction of his entitlement period to 41 weeks from 50, resulting in an overpayment of $3,659.00.
[3] The umpire rejected the Commission's ruling that had previously been confirmed by the Board of Referees. It appears from his reasons that he did so because he believed that the respondent had, from October 7, 1990, a vested right to the benefits. We readily agree with counsel for the applicant that such reasoning is not valid. It has been repeated many times, most notably by this Court in Côté v. C.E.I.C.,1 that the establishment of a benefit period in favour of a claimant does not give him or her a vested right to the benefits. A right to benefits becomes vested upon the filing of each bi-weekly claim establishing that the necessary conditions are met.
[4] We do not as readily agree with counsel for the applicant's analysis of the various provisions of the Act from which she draws the conclusion that any establishment of a benefit period is conditional, in the sense that if it turns out that one of the factors involved was wrongly perceived, especially the moment of interruption of earnings, the benefit period must be rescinded and a new one determined. But what is certain is that the conclusion this analysis suggests is a rational one which does not prevent or erase the fact that a benefit period was established before being replaced. Which leads us to the basic reason for our view that the umpire was right in spite of the weaknesses in his reasoning.
[5] There is a transitional provision that accompanied the amendment of November 1990 (S.C. 1990, c. 40). It read thus:
| 56. (1) Subject to subsections (2) to (5), any provision of the Unemployment Insurance Act continues to apply to any claimant for whom a benefit period was established before the provision was repealed. |
| (emphasis added) |
[6] We are of the view that Parliament, having used the word "established" and not "commenced", focusing thereby on the role of the Commission and not on the length or beginning of the time of payment, it is reasonable to give the word its full sense and effect. There is no doubt that there had been a benefit period "established" in favour of the respondent effective October 7, 1990, before the provisions determining its length were repealed.
[7] The umpire was, therefore, right and his conclusion must be upheld.
"Louis Marceau"
J.A.
FEDERAL COURT OF APPEAL
Date: 19980115
Docket: A-117-97
IN RE: The Unemployment Insurance Act
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant,
- and -
RODNEY CHINOOK,
Respondent.
REASONS FOR JUDGMENT
OF THE COURT
__________________
1 (1986), 69 N.R. 127 (C.A.).