[1994] 2 F.C. 348
A-1393-92
Attorney General of Canada (Applicant)
v.
Guochang Xuan (Respondent)
Indexed as: Canada (Attorney General) v. Xuan (C.A.)
Court of Appeal, MacGuigan, Linden and Robertson JJ.A.—Toronto, January 26 and 27, 1994.
Unemployment insurance — Application to set aside Umpire’s decision allowing respondent to extend qualifying period and to receive benefits under Unemployment Insurance Act, s. 7(2) — Respondent, landed immigrant, sent by employer to China on business — Passport expired while there — Detained by Chinese authorities for fourteen months — Unemployed upon return to Canada — Unemployment benefits denied as no insurable employment during qualification period — Meaning of “other similar institution” in Act, s. 7(2)(b) not restricted to building — “Words-in-total context” proper approach.
Construction of statutes — Interpretation of Unemployment Insurance Act, s. 7(2)(b) — Respondent, detained for fourteen months when in China on business trip, denied extension of qualification period as not “confined in any jail, penitentiary or other similar institution” — Umpire’s broad interpretation of “other similar institution” correct — Legal interpretation requiring consideration of numerous factors — Words of Act to be read in entire context, in grammatical and ordinary sense — Meaning of word “institution” not restricted to building.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Criminal Code, R.S.C. 1970, c. C-34.
Interpretation Act, R.S.C., 1985, c. I-21, s. 12.
Unemployment Insurance Act, 1971, S.C. 1970-71-72, c. 48, ss. 25 (as am. by S.C. 1974-75-76, c. 80, s. 7; 1976-77, c. 54, s. 36), 45 (as am. by S.C. 1974-75-76, c. 80, s. 17).
Unemployment Insurance Act, R.S.C., 1985, c. U-1, s. 7.
CASES JUDICIALLY CONSIDERED
APPLIED:
Garland v. Canada Employment and Immigration Commission, [1985] 2 F.C. 508; (1985), 23 D.L.R. (4th) 393; 42 Alta. L.R. (2d) 268; 12 C.C.E.L. 149; 86 C.L.L.C. 14,035; 63 N.R. 129 (C.A.) (as to the principle of statutory interpretation); Lor-Wes Contracting Ltd. v. The Queen, [1986] 1 F.C. 346; [1985] CTC 79; (1985), 85 DTC 5310; 60 N.R. 321 (C.A.); Abrahams v. Attorney General of Canada, [1983] 1 S.C.R. 2; (1983), 142 D.L.R. (3d) 1; 83 C.L.L.C. 14,010; 46 N.R. 185.
DISTINGUISHED:
Crupi v. Canada Employment and Immigration Commission, [1986] 3 F.C. 3; (1986), 10 C.C.E.L. 286; 66 N.R. 93 (C.A.); Garland v. Canada Employment and Immigration Commission, [1985] 2 F.C. 508; (1985), 23 D.L.R. (4th) 393; 42 Alta. L.R. (2d) 268; 12 C.C.E.L. 149; 86 C.L.L.C. 14,035; 63 N.R. 129 (C.A.) (as to the scope of the statutory framework under consideration).
AUTHORS CITED
Driedger, E.A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.
APPLICATION to set aside Umpire’s decision allowing the respondent to extend his qualifying period and to receive benefits under paragraph 7(2)(b) of the Unemployment Insurance Act. Application dismissed.
COUNSEL:
Cheryl D. Mitchell for applicant.
Allen V. Craig for respondent.
SOLICITORS:
Deputy Attorney General of Canada for applicant.
Weir & Foulds, Mississauga, Ontario, for respondent.
The following are the reasons for judgment delivered orally in English by
Robertson J.A.: This is an application to review and set aside a decision of an Umpire dated June 3, 1992 [CUB 21630] involving the proper interpretation of paragraph 7(2)(b) of the Unemployment Insurance Act, R.S.C., 1985, c. U-1. To be entitled to benefits under that Act, a claimant must accumulate 10 to 20 insurable weeks of employment in the qualifying period preceding the claim. The maximum qualifying period is 52 weeks unless an extension is granted. The grounds for extension are enumerated in subsection 7(2) of the Act. It provides:
7. …
(2) Where a person proves in such a manner as the Commission may direct that during any qualifying period mentioned in paragraph (1)(a) he was not employed in insurable employment for the reason that he was for any week
(a) incapable of work by reason of any prescribed illness, injury, quarantine or pregnancy,
(b) confined in any jail, penitentiary or other similar institution,
(c) in attendance at a course of instruction or other program to which he was related by such authority as the Commission may designate, or
(d) in receipt of temporary total workmen’s compensation payments for an illness or injury,
that qualifying period shall, for the purposes of this section, be extended by the aggregate of any of those weeks.
The relevant facts may be briefly stated. Guochang Xuan (the respondent), a landed immigrant, worked as an engineer for Joe Ng Engineering Ltd. in Hamilton, Ontario. On October 9, 1989, he was sent by his employer to China on business. While there, the respondent’s Chinese passport expired. He was detained by officials in China for fourteen months in a city in the province of Hunan. During this period he was required to report to the Chinese authorities daily. The respondent was not allowed to return to Canada until November 25, 1990 and then only after payment of $7000 Canadian to Chinese authorities in exchange for an exit visa. Unfortunately, his employer did not feel obligated to leave unfilled his position until such time as he could return to Canada.
The respondent applied for unemployment insurance benefits effective December 27, 1990. On March 25, 1991, he was advised by the Canada Employment and Immigration Commission (the Commission) that he did not qualify for benefits because he did not have any weeks of insurable employment during his qualification period. The Commission also denied the respondent’s application for an extension of his qualification period on the grounds that he had failed to prove that the reason he had not been employed for the year preceding his claim was that he was “confined in any jail, penitentiary or other similar institution” as required by paragraph 7(2)(b) of the Act.
The Board of Referees allowed the respondent’s appeal in a decision dated May 29, 1991. It held that he was “incarcerated” and confined to a city in China and that he therefore satisfied the requirements of the Act. The Commission appealed that decision to the Umpire.
Umpire Rouleau framed the narrow issue before him as the interpretation of the phrase “other similar institution” in paragraph 7(2)(b) of the Act. He adopted a contextual approach advocated by Heald J.A. in Garland v. Canada Employment and Immigration Commission, [1985] 2 F.C. 508 (C.A.). That case concerned the interpretation of the paragraph which is the subject of this appeal.
In Garland, the claimant was released from imprisonment on a temporary absence program under the terms of which he was required to stay on his parents’ farm. Heald J.A., writing for the majority (Pratte J.A. in dissent), compared all of the circumstances enumerated in paragraphs (a) - (d) of subsection 7(2) of the Act and reasoned (at page 516):
They all envisage a factual scenario in which the applicant is not available for employment through external circumstances beyond his control…. By the enactment of section 18(2) [now 7(2)], Parliament has, in my view, manifested a clear intention to relieve the individuals caught in the circumstances therein enumerated from the unfair consequences of those circumstances—namely, ineligibility for benefits. The method chosen by Parliament in subsection (2) to prevent such an unjust result, is to provide for an extension of the qualifying period in such circumstances.
Umpire Rouleau then applied the ejusdem generis canon of statutory interpretation and found that all of the institutions listed in paragraph 7(2)(b) of the Act shared the characteristic of being places in which people are confined. He went on to consider that the respondent was required to report to the Chinese authorities daily and was permitted only to leave the city on two occasions to visit relatives in Shanghai during his fourteen-month “detention”. In the Umpire’s words, “[f]or all intents and purposes, he may just as well have had four walls around him” (Umpire’s reasons, at page 11).
The applicant submits that the Umpire’s broad interpretation of the phrase “other similar institution” constitutes an error of law. The ordinary, grammatical meaning of paragraph 7(2)(b) unambiguously confines the definition of “similar institution” to a building similar in nature to a jail or penitentiary. Therefore, the application of the contextual canon of statutory interpretation bars the Umpire’s interpretation of paragraph 7(2)(b).
The applicant’s argument is based on the reasoning that although a person may be confined against his or her will, it does not necessarily follow that he or she is confined in an institution. In support of that proposition, counsel cites Crupi v. Canada Employment and Immigration Commission, [1986] 3 F.C. 3 (C.A.). In that case this Court determined that a mental health centre (hospital) was not a “similar institution” within the meaning of the Unemployment Insurance Act, 1971 [S.C. 1970-71-72, c. 48]. Analogously, the applicant asserts that a city in China is not “similar” to a jail or penitentiary. Paragraph 24 of the applicant’s written submission summarizes the argument:
24. It is therefore submitted that, pursuant to the presumption against a change of terminological usage and this Court’s reasoning in Crupi, infra, the learned Umpire erred in considering the city of Hunan to be in the nature of a prison.
It is understandable why counsel for the applicant would seize on the Crupi decision as authority for its position. On the basis of Garland, it is not difficult to anticipate the argument that if a person can successfully invoke paragraph 7(2)(b) of the Act on the basis of having been confined to his parent’s farm then surely he can invoke that section if confined to a city located in an undemocratic country. At the very least, the reasoning of the Court in Crupi might undermine this analogous argument. After all, it is not illogical to maintain that if a hospital is not to be regarded as similar to an institution of confinement such as a prison, the same reasoning might be accepted in regard to a city located within another country.
In Crupi the issue was whether the applicant was entitled to receive unemployment insurance benefits during the period he was hospitalized, pursuant to a court order, for psychiatric observation. The court order was issued after the applicant had been arrested and charged with an offence under the Criminal Code [R.S.C. 1970, c. C-34]. On judicial review this Court had to decide which of two provisions of the Unemployment Insurance Act, 1971 were applicable: section 45 [as am. by S.C. 1974-75-76, c. 80, s. 17] of the Act which denied benefits to those found to be an inmate of a prison or similar institution; or section 25 [as am. idem, s. 7; 1976-77, c. 54, s. 36] which extended benefits to those incapable of working due to illness. Heald J.A., once again writing for a majority (MacGuigan J.A., dissenting), held that the applicant was entitled to the unemployment insurance benefits. In short, a hospital was deemed not to be a “similar institution” within the meaning of section 45 of that Act. The majority reasoned that the claimant’s remand in that institution was for medical, rather than custodial or punitive, reasons.
As is self-evident, the facts of Crupi and Garland are materially different and in particular as they pertain to the scope of the statutory framework under consideration. Of particular significance is the fact that the issue before us is not concerned with whether the claimant is an inmate. Furthermore, the contextual analysis pursued by both the majority and minority in Crupi lacks relevance to the issue at hand. Putting aside substantive differences, we note that the legal result arrived at in each case is the same—the claimant was held to be entitled to the benefits sought.
It was common ground that the only principle of statutory interpretation now is that expressed as follows by Elmer A. Driedger, Construction of Statutes, 2nd ed., 1983, at page 87:
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
This principle was first described as a “words-in-total context” approach by this Court in Lor-Wes Contracting Ltd. v. The Queen, [1986] 1 F.C. 346 (C.A.), at page 352, and has been followed many times since; see also Crupi, supra, per MacGuigan J.A., at pages 30 et seq. It means that a statutory word or expression can be fully grasped only in relation to the whole of which it is a constituent part. In particular, as Heald J.A. put it in Garland, supra, at page 515:
… it is necessary to read the statute containing the words in issue in its entirety as an initial step. Only after that has been done can it be determined with any precision whether or not the words being interpreted are clear and unambiguous.
We accept this approach of Heald J.A.
Stated succinctly, the purpose of the Act is to provide benefits to people who, for legitimate reasons, have become unemployed. To facilitate this end, subsection 7(2) of the Act permits the extension of the qualification period for certain enumerated legitimate reasons. It would be paradoxical, indeed, if a person incarcerated in a Canadian penal institution, presumably for committing a criminal offence, has a legitimate reason for obtaining an extension of the qualification period, while a person who has committed no offence, except to fulfil his employment obligations, does not. The implications of that decision would clearly conflict with Parliament’s intent in drafting the provision. The failure of the applicant to offer any policy reasons (e.g. difficulty in administering the insurance scheme, conflict with other statutory provisions or legislative objectives), for denying the respondent unemployment insurance benefits leads us to conclude that the interpretation adopted by the Umpire is the correct one. This view is strengthened by section 12 of the Interpretation Act, R.S.C., 1985, c. I-21 and by the decision of Wilson J. in Abrahams v. Attorney General of Canada, [1983] 1 S.C.R. 2 wherein she offers the following guiding principle (at page 10):
Since the overall purpose of the Act is to make benefits available to the unemployed, I would favour a liberal interpretation of the re-entitlement provisions. I think any doubt arising from the difficulties of the language should be resolved in favour of the claimant. [Emphasis added.]
While acknowledging counsel for the applicant’s able analysis, it is, in our opinion, flawed in three material respects. First it focuses exclusively on the word “institution” at the expense of the word “confined”. A word does not have a meaning apart from a context. Second, the analysis fails to acknowledge the collective significance of each of the paragraphs in section 7 as they impact on the task of determining legislative purpose and intent. In the present circumstances the proper context is not subparagraph 7(2)(b) but rather section 7 and the Act as a whole. We agree with the respondent that legal interpretation entails consideration of numerous factors, and it may be necessary to ignore the restrictive view suggested by the immediate context if a more liberal approach is dictated by Parliament’s overall intent. Finally, we cannot cast aside the ruling in Garland that the meaning of the word institution need not be restricted to a building.
For the above reasons, the application should be dismissed.