http://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/67030/index.do 
Canada (Attorney General) v. Picard[1] (February 17, 2014) was an application by the Crown for judicial review of an EI decision of the Umpire. The issue was quite simple. The respondent was absent from Canada for a period of 34 hours and 40 minutes straddling a two day period. The Umpire held that this amounted to an absence of 1 day.
[3] In this case, the claimant left Canada during the morning of the first day and returned during the evening of the second. The Umpire found that the first day does not count in the calculation of the period the claimant was outside of Canada but the second day does. In doing do, he disagreed with the Board of Referees. The Board found that neither day counts in the calculation.
The Federal Court of Appeal concurred, but for different reasons.
The operative provision was paragraph 37(b) of the
Employment Insurance Act:[2]
37. Except as may otherwise be prescribed, a claimant is not entitled to receive benefits for any period during which the claimant
* …
(b) is not in Canada. /
37. Sauf dans les cas prévus par règlement, le prestataire n’est pas admissible au bénéfice des prestations pour toute période pendant laquelle il est :
… *
(b) soit à l’étranger.
The court set out the various possible interpretations:
[12] In this case, the “period” Ms. Picard was not in Canada potentially can be calculated in a number of different ways, affecting the amount of benefits to be withheld. Here are some possibilities:
- On two calendar days, Ms. Picard was outside of Canada. If “period” means any part of a calendar day on which a person is outside Canada, no matter how brief, then two calendar days of benefits must be subtracted.
- For over half of each of the two calendar days, Ms. Picard was outside of Canada. If “period” means a calendar day in which a person is outside Canada for most of the day, then two calendar days of benefits must be subtracted.
- Ms. Picard was outside of Canada for 34 hours, 40 minutes, or 1.4 days. If “period” means the exact period, expressed in fractions of a day, then 1.4 days of benefits must be subtracted.
- Rounded down to the nearest day, Ms. Picard was outside of Canada for one day. If “period” includes only whole days and not fractions of a day, then only one day must be subtracted.
- Ms. Picard was never outside of Canada for a complete calendar day. If “period” includes only complete calendar days, then no days should be subtracted.
The Federal Court of Appeal concluded that a “period” means a continuous 24 period that can straddle more than one calendar day and dismissed the Crown’s application:
[27] But now we must return to Ms. Picard’s situation. It will be recalled that she left Canada at 10:50 am and returned to Canada around 9:30 pm the next day. Disregarding fractions of days, she was away for a total of one day. But on each calendar day, she was away for only a fraction of a day – roughly 0.55 days on the first calendar day and 0.90 days on the second calendar day. Does this mean we should look at each calendar day and disregard the absence on each day as it was only for a fraction of a day?
[28] In my view, the answer is no. The absence on each calendar day should not be disregarded. The text of paragraph 37(b) speaks of “any period” outside of Canada, not “any period” of each calendar day. Further, the purpose of the provision is to ensure that a person is available and looking for work in Canada. A situation could be envisaged where a claimant is outside of Canada for almost two entire days – in substance, not available and looking for work in Canada on those days – and yet, because the claimant was never away for an entire calendar day, no benefits are withheld. This is contrary to the purpose of paragraph 37(b).
[29] In light of the foregoing, I conclude that the “period” in paragraph 37(b) of the Act is the period, expressed in complete, whole days, during which the claimant was outside of Canada. For this purpose, a complete, whole day does not necessarily mean a calendar day. Rather, it can include a continuous 24 hour period that straddles two calendar days.
[30] Applying this, it follows that Ms. Picard was outside of Canada for one complete, whole day. Therefore, under paragraph 37(b) of the Act, she is not entitled to receive one day of benefits. This is the result the Umpire reached, but for different reasons.
F. Proposed disposition
[31] For the foregoing reasons, I would dismiss the application.
[1] 2014 FCA 46.
[2] S.C. 1996, c. 23.