Canada v. Cymerman, (1996) 195 N.R. 361 (FCA)

• Judge: Isaac, C.J., Hugessen and Robertson, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: March 28, 1996
• Jurisdiction: Canada (Federal)
• Citations: (1996), 195 N.R. 361 (FCA)

Can. v. Cymerman (1996), 195 N.R. 361 (FCA)

MLB headnote and full text

Her Majesty The Queen (applicant) v. Bronislawa Cymerman

(A-415-95)

Indexed As: Canada v. Cymerman

Federal Court of Appeal

Isaac, C.J., Hugessen and Robertson, JJ.A.

March 28, 1996.

Summary:

A worker applied for unemployment in­surance benefits. The Unemployment In­surance Commission ruled that her benefit rate was nil because her earnings from her last 20 weeks of insurable employment were also nil. The worker appealed.

A Board of Referees dismissed the appeal. The worker appealed.

An Umpire allowed the appeal. The Com­mission applied for judicial review.

The Federal Court of Appeal, Robertson, J.A., dissenting, quashed the Umpire's deci­sion and remitted the matter to an Umpire to be designated by the Chief Umpire for a new disposition on the basis that the worker's appeal from the Board of Referees should be dismissed.

Unemployment Insurance - Topic 1664

Claims - Application for benefits - Bene­fit rate - A university terminated Cymer-man's employment in June 1991 with $49,000 severance pay - The allocation postponed any possible unemployment insurance claim by 15 months to Septem­ber 1992 - However, Cymerman obtained insurable employment from Royal Lepage from November 1991 to June 1992 (32 weeks) - Cymerman received no commis­sions during that period and hence had no insurable earnings - Cymerman claimed unemployment insurance benefits - The Commission submitted that Cymerman's benefit rate was nil because her earnings from her last 20 weeks of insurable em­ployment, i.e., with Royal Lepage, were also nil - Cymerman claimed that her benefits should be calculated on her em­ployment with the university - The Feder­al Court of Appeal held that Cymerman's benefit rate was nil because she had no earnings during her last 20 weeks of insurable employment - See paragraphs 1 to 19.

Cases Noticed:

Canada (Procureur général) v. Fortin (1989), 109 N.R. 385 (F.C.A.), dist. [para. 13].

Canada (Attorney General) v. Sears, [1995] 1 F.C. 393; 174 N.R. 67 (F.C.A.), dist. [para. 13].

Canada (Attorney General) v. Rose (1993), 164 N.R. 204 (F.C.A.), refd to. [para. 14].

ECG Canada Inc. v. Minister of National Revenue (Customs and Excise), [1987] 2 F.C. 415; 9 F.T.R. 1 (T.D.), consd. [para. 50].

Thomson v. Canada (Minister of Agricul­ture), [1992] 1 S.C.R. 385; 133 N.R. 345; 89 D.L.R.(4th) 218, refd to. [para. 51].

Hills v. Canada (Attorney General), [1988] 1 S.C.R. 513; 84 N.R. 86; 48 D.L.R.(4th) 193; 88 C.L.L.C. 14,011, consd. [para. 52].

Lor-Wes Contracting Ltd. v. Minister of National Revenue, [1986] 1 F.C. 346; 60 N.R. 321 (F.C.A.), consd. [para. 53].

Canada v. Tucker, [1986] 2 F.C. 329; 66 N.R. 1 (F.C.A.), consd. [para. 53].

Bourne (Inspector of Taxes) v. Norwich Crematorium Ltd., [1967] 2 All E.R. 576 (Ch. D.), refd to. [para. 53].

Petts and the Alberta Teachers' As­sociation, Re, [1974] 2 F.C. 225; 6 N.R. 346 (F.C.A.), refd to. [para. 55].

Petts v. Umpire (Unemployment Insurance Act) - see Petts and the Alberta Teach­ers' Association, Re.

Statutes Noticed:

Unemployment Insurance Act, R.S.C. 1985, c. U-1, sect. 6(1), sect. 6(2) [para. 38]; sect. 7(1) [paras. 4, 39]; sect. 7(3) [paras. 4, 40]; sect. 7(6) [paras. 4, 43]; sect. 7(7) [para. 4]; sect. 9(1) [para. 39]; sect. 13(1), sect. 13(2) [paras. 2, 46]; sect. 13(3) [para. 2]; sect. 14 [para. 57]; sect. 17, sect. 24 [para. 30].

Authors and Works Noticed:

Côté, Pierre-André, Interpretation of Legislation in Canada (1991), generally [para. 47].

Driedger, E.A., Construction of Statutes (3rd Ed. 1994), pp. 1 to 6 [para. 50]; 26 to 28 [para. 51]; 43 [para. 48].

Fulcher, Ted, The Income Tax Act, The Rules of Interpretation and Tax Avoid­ance. Purpose vs. Plain Meaning: Which, When and Why? (1995), 74 Can. Bar Rev. 563, generally [para. 49].

Counsel:

Ted Fulcher, for the applicant;

Bronislawa Cymerman, on her own behalf.

Solicitors of Record:

George Thomson, Deputy Attorney Gen­eral of Canada, Ottawa, Ontario, for the applicant.

This application was heard on February 22, 1996, at Edmonton, Alberta, before Isaac, C.J., Hugessen and Robertson, JJ.A., of the Federal Court of Appeal.

The judgment of the Federal Court of Appeal was delivered on March 28, 1996, and the following opinions were filed:

Hugessen, J.A. (Isaac, C.J., concurring) - see paragraphs 1 to 19;

Robertson, J.A., dissenting - see para­graphs 20 to 63.