A-373-82
Minister of Employment and Immigration (Appli-
cant)
v.
Mario Carrozzella (Respondent)
Court of Appeal, Urie J., Lalande and McQuaid
D.JJ.—Toronto, November 2 and 5, 1982.
Judicial review — Applications to review — Unemployment
insurance — Work stoppage — Umpire deciding respondent
entitled to benefits — Respondent lost employment by reason
of labour dispute — Refused to cross picket line — Applica
tion of s. 44(2) to relieve disentitlement — Fear of loss of
"travel card" insufficient reason not to cross picket line —
Application allowed — Unemployment Insurance Act, 1971,
S.C. 1970-71-72, c. 48, ss. 44(1),(2), 94, 95 — Federal Court
Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
This is an application to review and set aside the decision of
an Umpire entitling the respondent to unemployment insurance
benefits. The respondent, a plumber in Hamilton, was unable to
obtain employment through his Local and was given a "travel
card" which permitted him to obtain employment elsewhere.
He obtained work at a plant in the jurisdiction of the London,
Ontario Local of his Union. The London Local of the carpen
ters' Union set up a picket line. The London Local of his Union
honoured the picket lines of other striking trades, although the
Hamilton Local did not. The respondent drove to London daily,
but did not cross the picket line. The Board of Referees held
that the respondent was disentitled under subsection 44(1), and
that subsection 44(2) did not relieve the disentitlement because
there was no proof of intimidation. The Umpire did not find it
necessary to consider whether fear of violence was present. He
found that since the London Local did not cross picket lines the
respondent's "travel card" would be revoked by that Local if he
crossed the line and this would result in the loss of his job at
that City. Respondent was in an impossible situation. A worker
should not be required to risk physical injury or abuse to prove
a fear of same.
Held, the application is allowed. There is a strong presump
tion when a person does not cross a picket line that he is doing
so out of sympathy with the strikers. This presumption can be
rebutted if, for example, he truly feared actual violence. The
Board of Referees found that there was no proof of intimida
tion and that the respondent was following the rules of the
London Local, which honoured picket lines, and was therefore
participating in the work stoppage. To reverse that finding the
Umpire would have had to find that the respondent fell within
both paragraphs (a) and (b) of subsection 44(2). Since he did
not give consideration to the requirements of paragraph (b) and
he did not reverse, on proper grounds, the finding of the Board
of Referees, subsection 44(2) cannot be applicable.
CASE JUDICIALLY CONSIDERED
APPLIED:
Attorney General of Canada v. The Umpire Constituted
under section 92 of the Unemployment Insurance Act,
197/, S.C. /970-7/-72, c. 48, [1977] 2 F.C. 696 (C.A.).
COUNSEL:
Roslyn J. Levine for applicant.
Stanley Simpson for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Stanley Simpson, Hamilton, for respondent.
The following are the reasons for judgment
rendered in English by
URIE J.: This application pursuant to section 28
of the Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10, seeks to set aside the decision of the
Umpire in which he allowed the appeal of the
respondent from a decision of the Board of
Referees in which the majority had held that the
respondent was not entitled to benefits under the
Unemployment Insurance Act, 1971, S.C. 1970-
71-72, c. 48 ("the Act") by reason of the provi
sions of subsection 44(1) thereof. The application
was argued together with that in Attorney General
of Canada v. Gooder, Court No. A-870-81 [judg-
ment dated November 2, 1982] in which the factu
al situation is almost identical to that prevailing
herein. It was agreed that the decision on this
application would govern the disposition of the
Gooder application.
Briefly stated, the facts are these. At all relevant
times the respondent, a plumber, was a member of
Local 67 of the United Association of Plumbers
and Steam Fitters, situated at Hamilton, Ontario.
To obtain employment through Local 67, the
respondent and other members had to apply at the
Union hiring hall. If no employment was available
there, the Local could issue a "travel card" to him,
permitting him to, or requesting permission for
him to, work in an area governed by a different
local. Since no work was available in Hamilton,
the respondent acquired such a card and obtained
employment with Moores Industrial Installations
Limited to do work at Zymaise Corn Sweetener
Plant in London, Ontario during the period June 2
to June 13, 1980. London was under the jurisdic
tion of the London Local of the respondent's
Union.
On or about June 16, 1980 a strike by the
United Brotherhood of Carpenters and Joiners of
America commenced throughout the Province of
Ontario. The London Local of that Union, which
had members working at Zymaise Corn Sweetener
Plant, set up a picket line at the worksite. The
London Local of the respondent's Union honoured
the picket line. The policy of the Hamilton Local,
on the other hand, was not to join the picket lines
of other striking trades. The respondent drove to
London to work on June 16 but neither attempted
to nor did, in fact, cross the picket line. There is
some evidence that he repeated this action each
day during the course of the strike and on each
occasion he returned to Hamilton and reported to
the hiring hall there to see if work was available.
The Unemployment Insurance Commission held
that the respondent was disentitled to receive
unemployment insurance benefits on the ground
that he had lost his employment by reason of a
stoppage of work attributable to a labour dispute,
on the authority of subsection 44(1) of the Act.
The respondent appealed his disentitlement to the
Board of Referees pursuant to section 94 of the
Act. The respondent did not testify at the hearing
before the Board, being represented by the busi
ness agent of his Local, Fred Wilson, who testified
and made representations on behalf of the
respondent. By a majority decision, the Board of
Referees upheld the Commission's ruling and dis
missed the respondent's appeal.
The respondent appealed that decision to the
Umpire pursuant to section 95 of the Act and he
allowed the appeal. It is from that decision that
this section 28 application is brought.
The material portions of the majority decision of
the Board of Referees read as follows:
It is also the decision of the majority of the Board that the
claimant lost his employment by reason of a stoppage of work
attributable to a labour dispute at the premises at which he was
employed.
The majority of the Board find that section 44(2) does not
apply in this situation because there was no proof of intimida
tion. It should also be noted that while the claimant was a
member of Local 67, Hamilton, he was employed in London,
Ontario and, therefore, governed by the London Local's rules
and the London local honoured the picket lines.
The Umpire, in allowing the appeal, had this to
say:
I have come to the conclusion that this appeal should be
allowed. I agree with Mr. Wilson's argument that the mobility
today of construction workers moving from one municipality to
another in search for work gives rise to situations that were not
contemplated when the Umpires rules regarding the effect of
crossing picket lines were first ordered. It is to be noted that
there is no mention of the position of men employed through
the use of "travel cards" nor of the question of mobility in any
sense of the word.
It is quite clear that Mr. Gooder was keen to obtain work
wherever he could find it even if this meant commuting each
day from his home to another city where a job was available.
When he found the Carpenters Union picket line around the
Zymaise plant he was indeed in an impossible situation. On the
one hand his own local in Hamilton was not objecting to
crossing the Carpenters picket line but the London local was
not crossing the Zymaise picket line. If he crossed the line his
travel card would be revoked by the London local and he would
lose his job. His travel card gave him no right to vote at the
meetings of that local and so he had no control over its action
and can't be held responsible for such action.
In view of this finding 1 do not find it necessary to consider
whether he had the necessary fear of violence from the picket
line to justify his refusing to cross the picket line for that reason
other than to comment that I don't think a working man should
be forced to place himself where he may be physically injured
or abused in order to prove he has a genuine fear of such an
occurrence.
To understand the issues raised in this applica
tion, regard must be had to subsections 44(1) and
(2) of the Act. These read as follows:
44. (1) A claimant who has lost his employment by reason of
a stoppage of work attributable to a labour dispute at the
factory, workshop or other premises at which he was employed
is not entitled to receive benefit until
(a) the termination of the stoppage of work,
(b) he becomes bona fide employed elsewhere in the occupa
tion that he usually follows, or
(c) he has become regularly engaged in some other
occupation,
whichever event first occurs.
(2) Subsection (1) is not applicable if a claimant proves that
(a) he is not participating in or financing or directly interest
ed in the labour dispute that caused the stoppage of work;
and
(b) he does not belong to a grade or class of workers that,
immediately before the commencement of the stoppage,
included members who were employed at the premises at
which the stoppage is taking place and are participating in,
financing or directly interested in the dispute.
Counsel for the applicant attacked the Umpire's
decision on three bases:
(1) he erred in his application of subsection
44(1) of the Act;
(2) he failed to apply his mind to and to make
any finding with respect to paragraph 44(2)(b)
at all, and;
(3) he erred in reversing the Board of Referees'
finding of fact since there was evidence before it
upon which it was entitled to make such a
finding and it did not err in the application of
any principle in so doing.
Counsel for the respondent, on the other hand,
saw the issue to be whether or not the Umpire was
correct in deciding that, because of the knowledge
of the respondent that he would lose his travel card
if he attempted to cross the picket line, he (the
Umpire) was not obliged to consider whether the
respondent had the necessary fear of violence from
the picket line to justify his refusing to cross it and
thereby become entitled to the application of sub
section 44(2) of the Act in his favour.
The Board of Referees made a finding, supra,
that the respondent had lost his employment by
reason of a stoppage of work attributable to a
labour dispute at the premises at which he was
employed. It is indisputable that there is, in the
record, evidence to support such a finding. Having
so found, the respondent was not entitled to receive
unemployment insurance benefits until any of the
events referred to in paragraphs (a), (b) and (c) of
subsection 44(1) occurred unless he was able to
prove that he fell within the provisions of both
paragraphs (a) and (b) of subsection 44(2). Addy
J., acting as the Umpire in C.U.B. 4222 summa
rized what has been held in a long line of Umpires'
decisions (which have not been questioned in this
Court or the Supreme Court of Canada as far as
we have been made aware by counsel) in the
following succinct way:
Where an insured person fails to cross a picket-line, there is a
strong presumption that he or she did so in response to an
invitation from the members of the striking union to join their
cause and add pressure on the employer to meet the strikers'
demands. Tiiat presumption may of course be rebutted by the
insured by leading positive evidence which will convince the
tribunal to the contrary. For instance, wherever serious threats
or reasonable fear of violence is found to exist or where it can
be proven that no work would have been offered to those who
would have reported for duty in any event, the inference that
the action was inspired by sympathy with the strikers can be
rebutted. The test as to the personal motivation required to
overcome the presumption is whether a bona fide worker,
inspired with a sincere desire to continue working notwithstand
ing the labour dispute, would not have attempted to cross the
picket-lines because he, with good and reasonable cause, truly
feared actual violence either to his person, his family or his
property.
It is jurisprudence of this kind which undoubt
edly impelled the majority of the Board to state
that:
... section 44(2) does not apply in this situation because there
was no proof of intimidation.
It will be noted that the Board made no specific
reference to either paragraph (a) or (b) so that it
must be taken, I think, that they had both in mind
in making this statement. That view is supported,
it seems to me, by the next sentence, namely:
It should also be noted that while the claimant was a member
of Local 67, Hamilton, he was employed in London, Ontario
and, therefore, governed by the London Local's rules and the
London local honoured the picket lines.
That statement indicates to me that the Board
found, at least by inference, that the respondent
belonged to a grade or class of workers which was
participating in the work stoppage and thus para
graph 44(2)(b) could not be applicable. There was
certainly evidence which entitled them to so con
clude. Such a finding should, therefore, not be
disturbed.
For subsection 44(2) to apply, the respondent
had to prove that he fell within both paragraphs
(a) and (b) thereof.' The learned Umpire, how
ever, made reference neither to the finding by the
Board nor to the absolute requirement for making
a positive finding under both paragraphs (a) and
(b) if the respondent was to escape his loss of
entitlement to insurance benefits by the applica
tion of subsection 44(2). One of the conditions for
its application had not been complied with. That
this is so, it seems to me, is clear from the last
paragraph of the excerpt from his reasons for
decision earlier quoted herein. For convenience
sake, I repeat it:
In view of this finding I do not find it necessary to consider
whether he had the necessary fear of violence from the picket
line to justify his refusing to cross the picket line for that reason
other than to comment that I don't think a working man should
be forced to place himself where he may be physically injured
or abused in order to prove he has a genuine fear of such an
occurrence.
In my view this indicates, when read with the
earlier part of the quotation, that he gave no
consideration whatsoever to the requirements of
paragraph (b). His decision appears to have been
based solely on the premise that the prospective
loss of his travel card "was sufficient reason for
him not to cross the picket line." I take it that the
inference he drew therefrom was that he was "not
participating in ... or directly interested in the
labour dispute . .." within the meaning of para
graph (a).
There having been no consideration given to the
requirements for the application of paragraph (b)
and no foundation having been laid for its applica
tion by a finding of fact by the Umpire (which by
section 96 [as am. by S.C. 1976-77, c. 54, s. 56] of
the Act he might make) and there having been no
reversal, upon proper grounds or otherwise, of the
finding by the Board of Referees earlier referred
to, subsection 44(2) cannot be applicable. As I see
it, the section 28 application must, therefore,
succeed.
In the circumstances, it is unnecessary for me to
consider whether the Umpire was correct in his
appreciation of the evidence and of the jurispru
dence to enable him to apply paragraph 44(2)(a).
' Attorney General of Canada v. The Umpire Constituted
under section 92 of the Unemployment Insurance Act, 1971,
S.C. 1970-71-72, c. 48, [1977] 2 F.C. 696 (C.A.).
In my opinion, therefore, the section 28 applica
tion must be allowed, and the decision of the
Umpire should be set aside. I may say that I have
reached this conclusion with some reluctance
because of the obvious desire of the respondent to
perform useful work rather than apply for and,
presumably, receive unemployment insurance ben
efits in Hamilton when no work was available
there. But this Court, the Umpire, the Board of
Referees and the Commission must apply the law
as it appears Parliament enacted it, irrespective of
the sympathy that the plight of this respondent
engenders in the circumstances.
MCQUAID D.J.: I concur.
LALANDE D.J.: I have read the reasons for
judgment prepared by Mr. Justice Urie. I agree
with them and with his disposition of the
application.
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.