Archived – Digest of Benefit Entitlement Principles Chapter 8 - Section 12

8.12.0 Other employment during the stoppage of work

The termination of the stoppage of work is not the only eventuality to consider whether a disentitlement should be terminated ^{Footnote 1} . The legislation ^{Footnote 2} provides for another, as the following extract shows:

. . . a claimant who loses an employment, or is unable to resume an employment, because of a work stoppage ... is not entitled to receive benefit until the earlier of

1. the end of the work stoppage, and
2. the day on which the claimant becomes regularly engaged elsewhere in insurable employment.

The termination of the disentitlement as provided for in the legislation in these circumstances is related to the occurrence of one of two eventualities. The first, being the termination of the stoppage of work, is a collective event which will be accomplished by the combination of workers and activities of a given workplace. However, the second, which consists of becoming regularly employed elsewhere in insurable employment, is an individual event that must be realized by only the claimant, without any tie to the collective employees or activities.

There is only one rule that applies to employment held by a claimant during a stoppage of work. This rule will be used whether the employment is in the claimant's usual occupation or in another occupation.

It is up to the claimant to prove that he or she has subsequently become regularly engaged in insurable employment elsewhere ^{Footnote 3} . Employment or a period of employment that preceded the time when the claimant lost or was unable to resume a previous employment will not provide relief in this context ^{Footnote 4} . We could accept employment that commenced previously in so far as it was regularly pursued after the claimant lost employment or was unable to resume a previous employment due to a stoppage of work.

8.12.1 Engaged elsewhere in insurable employment

The employment that the claimant has become engaged in must respect the meaning that it is given in the legislation ^{Footnote 5} , which necessarily means that an employer-employee relationship exists. Thus, this would exclude all self-employment ^{Footnote 6} as well as all other occupations that do not, as such, constitute employment.

The said employment must also be insurable therefore only employment that is insurable may be used to demonstrate that the claimant is regularly engaged in insurable employment.

Finally, the legislative text specifies that the claimant is regularly engaged in insurable employment elsewhere ^{Footnote 7} than the place of employment where the stoppage of work is occurring. This would exclude all employment that a claimant may commence at the same premises where the stoppage of work exists.

This would mean that a person, who resumes his or her own job before there is a termination to the stoppage of work, has very few alternatives by which the disentitlement could be terminated. That person must await the collective return of the workers involved in the stoppage of work, in other words the termination of the stoppage of work ^{Footnote 8} or meet the conditions of non-application ^{Footnote 9} .

8.12.2 Regularly

It is not sufficient for a claimant to have commenced being engaged in insurable employment; it must be worked at regularly. The application of the legislation has created abundant jurisprudence and interpretations whose themes have time and again been used to liberalize the various approaches towards the claimant.

We must be conscious that the actual legislative provisions place the concept "regularly engaged" in a context that is fairly different as it is an insurable employment, and not another occupation in which the claimant must be regularly engaged. Furthermore, jurisprudence that related to the previous legislation must be adjusted for the particular circumstances and only be used with caution. The authoritative principles are found in the judgements of the Federal Court of Appeal and the Supreme Court ^{Footnote 10} .

A reading of these judgements leads us to conclude that the determination of whether a claimant was regularly engaged in insurable employment will rest on three inseparable criteria. These are:

1. was it firm, serious, genuine employment;
2. was there continuity in the employment;
3. was there regularity in the claimant's pattern of work?

An employment will be firm, serious, and genuine when, at the beginning or at a given time, the worker has some assurance of a certain number of predetermined work periods. It would not be so where there is no such assurance or where the proposed number of work periods is vague, imprecise, not defined, uncertain; or is according to need; or it is unknown whether the employment will continue or in what manner from day to day ^{Footnote 11} . The fact that the claimant has worked a certain number of periods does not demonstrate after the fact that the employment meets the first criterion if such an assurance did not exist either at the time of hiring or at some subsequent time during the employment.

All this implies that there must have been continuity in the employment. This means that it was pursued uninterrupted, that is, without a lay-off, end of contract or break in the employer-employee relationship, even for a short period which required a re-employment. Continuity will not be shown when the employment had been for an intermittent, sporadic, occasional or on-call basis ^{Footnote 12} .

There must be regularity in the pattern of work. Generally, this means that the claimant worked according to a specific pattern, in terms of a schedule, a number of given hours or days, and that this pattern regularly repeated itself during the pursued employment ^{Footnote 13} . What needs to be determined at this stage is what pattern of work over an interval is representative of the claimant's employment.

An interval could vary from case to case. One could conclude that in the majority of cases, an interval of one week, that is, a period of seven days starting on any day, would be representative of an interval of the employment under question. This interval could be longer or shorter. In the case of a person who was engaged to work one week in two, then two weeks would constitute a representative interval.

Once the representative interval is established, then what must be examined is the pattern of work during this interval and in what way it was repeated during the period of employment. At the very minimum, one could consider that there was regularity in the pattern of work when, during the claimant's employment, that specific pattern prevailed for at least two successive intervals, which would be for at least two successive intervals of seven days in the majority of cases. It could just as easily be a pattern of part-time work as full-time.

The fact that the person had been employed, or even had worked, is not sufficient. What is required, in fact, is the fulfillment of all three criteria previously mentioned ^{Footnote 14} . The claimant cannot take advantage of the fact that some event prevented him or her from working what was to be a predetermined regular pattern of work. Nor can the claimant use the fact that this event had ended the employment before he or she could begin working in a regular manner.

The fact that a claimant intended to resume the previous employment at the end of the stoppage of work does not in any way mean that the insurable employment during the stoppage was not one in which the claimant was regularly engaged ^{Footnote 15} . This factor has no bearing on the "regularity" of the employment in question. It is therefore not a question of demanding that the claimant demonstrate disinterest, distance or detachment from the outcome of the labour dispute by severing all connection with the struck employer.