A-787-81
Odilon Gionest et al. (Plaintiffs)
v.
Unemployment Insurance Commission and Dubé
J. in his capacity as an Umpire (Defendants)
Court of Appeal, Pratte, Ryan JJ. and Lalande
D.J.—Quebec City, May 12; Ottawa, June 11,
1982.
Judicial review — Applications to review — Unemployment
insurance — Umpire deciding applicants lost employment by
reason of work stoppage attributable to labour dispute —
Fishing plant open during fishing season — Employer delayed
spring reopening until new collective agreement signed
Commission sought repayment of benefits paid during extend
ed period of unemployment while collective agreement under
negotiation on ground employees lost employment by reason of
stoppage of work attributable to labour dispute under s. 44(1)
— Board of Referees found no labour dispute since negotia
tions proceeding smoothly, without interruption and no request
for conciliation, no refusal to work and no picketing
Umpire allowed appeal, finding dispute existed and applicants
lost employment by reason of stoppage of work attributable to
dispute — Applicants contend no labour dispute existed, or
that they did not lose employment by reason of work stoppage
— Application allowed on second ground — One cannot lose
employment he does not have — Loss of opportunity to be
employed not loss of his employment within meaning of s.
44(1) since employment never his to lose — Right to be
recalled not same as employment, nor was it lost — Pratte and
Ryan JJ. found dispute existed because negotiations necessary
— Lalande D.J. found existence of dispute question of fact to
be decided by Board of Referees, and such decision not to be
set aside unless based on erroneous finding of fact as required
by s. 95(c) — 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. 44(1),(4), 95(c) (as am. by S.C. 1976-77, c. 54,
s. 56).
COUNSEL:
Jacques Daigle for plaintiffs [applicants].
Guy Laperrière for defendants [respondents].
SOLICITORS:
Paré, Daigle & Boyer, Quebec City, for plain
tiffs [applicants].
Deputy Attorney General of Canada for
defendants [respondents].
The following is the English version of the
reasons for judgment rendered by
PRATTE J.: This appeal, based on section 28 of
the Federal Court Act, R.S.C. 1970 (2nd Supp.),
c. 10, is from a decision of an Umpire pursuant to
Part V of the Unemployment Insurance Act, 1971,
S.C. 1970-71-72, c. 48. By that decision, the
Umpire quashed the decision of a Board of
Referees and held that applicants had improperly
received certain unemployment insurance benefits
paid to them in the spring of 1980.
The cooperative "Les Pêcheurs Unis du Qué-
bec" operates several fish processing plants in the
Gaspé Peninsula. These plants are only open
during the fishing season: they close for the winter.
The employees are laid off in November or
December, and are called back to work when the
plants reopen in April or May of the following
year.
In 1979, applicants worked at the Newport
plant of "Les Pêcheurs Unis du Québec". Their
working conditions were determined by a collective
agreement between the Union certified to repre
sent them and their employer. This agreement
provided, inter alia, that when the plant reopened
each spring the employer would offer work to its
employees from the previous year, beginning with
those having the most seniority. It terminated on
December 31, 1979, after applicants had been laid
off for the winter. In March, April and May, 1980,
representatives of the Union and the employer met
to negotiate a new agreement. These negotiations
bore fruit: the new agreement was signed on
May 9, 1980. The employer thereupon reopened
its plant and applicants went back to work. The
plant could have been reopened earlier, but when
the negotiations began in March the employer
decided to keep the plant closed until a new agree
ment had been signed. During the previous
negotiations, the employees had gone on strike in
support of their Union's claims. The employer did
not want that to happen again. Accordingly, it
delayed reopening the plant in the spring of 1980
and applicants were unemployed longer than they
would otherwise have been. The only problem
raised by the case at bar concerns applicants'
entitlement to unemployment insurance benefits
during this extension of their period of unemploy
ment, attributable to the employer's decision not to
open the plant before the new collective agreement
had been signed. The Commission claimed to be
repaid the benefits they had received during this
period on the ground that, under section 44 of the
Act, they were not entitled to receive benefits
because they had lost their employment by reason
of a stoppage of work attributable to a labour
dispute. Applicants appealed to a Board of
Referees. The Board ruled in their favour and held
that section 44 did not apply in the circumstances
because the work stoppage was not attributable to
a labour dispute. The stoppage was attributable to
the fact that the parties were negotiating a collec
tive agreement. In the view of the Board, there is
no dispute between parties who are negotiating a
collective agreement where such negotiations are
proceeding smoothly and without interruption, and
there is no request for conciliation, no refusal to
work and no picketing.
The Commission appealed to the Umpire, who
allowed the appeal and held that, under section 44,
applicants were not entitled to receive the benefits
in question. In the view of the Umpire, there was a
dispute between the employer and employees
within the meaning of subsection 44(4) when they
were negotiating a collective agreement, and appli
cants should be regarded as losing their employ
ment "by reason of a stoppage of work attributable
to [that] dispute". This is the decision against
which the appeal is brought.
Counsel for the applicants first argued that the
Umpire made an error of law in deciding that
there can be a dispute within the meaning of
section 44 between two parties who are negotiating
a collective agreement in the usual way. In the
submission of counsel for the applicants, there is
an employer-employee dispute during the negotia
tion of a collective agreement only when the
negotiations break off and the parties stop talking
to one another. This argument seems to be without
basis. In my view, a dispute is a disagreement, a
dissension. The parties negotiating a collective
agreement are in disagreement. If they were in
agreement, negotiations would not be necessary.
The very purpose of the negotiations is to put an
end to the disagreement, the dispute. The Umpire
therefore correctly held that there was a dispute
between the cooperative and its employees. On this
point, his decision seems to be unassailable.
Counsel for the applicants further contended
that, in any event, even if it were held that there
was a labour dispute at the plant where applicants
worked, section 44 does not apply because appli
cants had not lost their employment by reason of a
work stoppage.
This second argument seems to me to be correct.
Subsection 44(1) states that a claimant "who has
lost his employment by reason of a stoppage of
work attributable to a labour dispute" shall not be
entitled to benefits. One cannot lose what one does
not have. A person cannot lose his employment if
he does not first have employment which he subse
quently loses. It is true that someone who is unem
ployed and who misses a chance, an opportunity to
be employed, in a sense loses that employment; but
he does not lose his employment, since the employ
ment never was his. In the case at bar, applicants
were already unemployed when the employer
delayed opening the plant because of the negotia
tions in progress. At that time, they had no
employment and they accordingly could not lose
their employment. Perhaps they had the right,
under the expired collective agreement, to be
called back to work when the plant opened; but
that right was not employment. Moreover, they
never lost it; the right was conditional on the plant
being opened and it only existed after such
reopening.
In my view, therefore, the Umpire committed an
error of law in assuming that a person who is
unemployed and who misses an opportunity to be
employed loses his employment within the mean
ing of subsection 44(1). I know that in so ruling
the Umpire was merely following well-established
precedents set by other umpires. However, these
precedents cannot be reconciled with the wording
of section 44.
For these reasons, I would allow the motion, set
aside the decision a quo and refer the matter back
to the Umpire to be decided by him on the
assumption that persons who, like applicants, were
not employed could not lose their employment
within the meaning of section 44 of the Unemploy
ment Insurance Act, 1971.
* * *
The following is the English version of the
reasons for judgment rendered by
RYAN J.: I agree with Pratte J. that the section
28 application should be allowed and the matter
referred back to the Umpire as he suggests. I
concur in the view taken by Pratte J. that a person
who is not employed and who misses an opportu
nity to be employed does not lose his employment
within the meaning of subsection 44(1) of the
Unemployment Insurance Act, 1971.
* * *
The following is the English version of the
reasons for judgment rendered by
LALANDE D.J.: I concur in the finding of Pratte
J., would allow the motion and would refer the
matter back to the Umpire for decision in accord
ance with the directions given.
However, I cannot subscribe to the view
expressed by my brother that parties who are
negotiating the renewal of a collective agreement
are necessarily in disagreement, and that a dispute
exists within the meaning of subsection 44(1) of
the Unemployment Insurance Act, 1971. In my
view, the question is one of fact and, unless the
Board of Referees can be said to have based its
decision on an erroneous finding of fact, as
required by paragraph 95(c) [as am. by S.C. 1976-
77, c. 54, s. 56] of the Act, the Umpire has no
power to reverse the finding of fact made by the
Board.
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.