Date: 19980127
Docket: A-380-97
OTTAWA, Ontario, Tuesday, January 27, 1998.
CORAM: MARCEAU J.A.
DESJARDINS J.A.
LÉTOURNEAU J.A.
BETWEEN
GILLES CARON,
Applicant,
-and-
ATTORNEY GENERAL OF CANADA,
Respondent.
JUDGMENT
I. The application is allowed. The umpire's decision a quo is set aside and the matter is referred back to the Chief Umpire for rehearing by another umpire in a manner that complies with the rules of natural justice as discussed in the reasons of the Court.
"Louis Marceau"
J.A.
Certified true translation
C. Delon, LL.L.
Date: 19980127
Docket: A-380-97
CORAM: MARCEAU J.A.
DESJARDINS J.A.
LÉTOURNEAU J.A.
BETWEEN
GILLES CARON,
Applicant,
-and-
ATTORNEY GENERAL OF CANADA,
Respondent.
Hearing held at Edmonton, Alberta, on Wednesday, January 14, 1998.
Judgment delivered at Ottawa, Ontario, on Tuesday, January 27, 1998.
REASONS FOR JUDGMENT BY: THE COURT
Date: 19980127
Docket: A-380-97
CORAM: MARCEAU J.A.
DESJARDINS J.A.
LÉTOURNEAU J.A.
BETWEEN
GILLES CARON,
Applicant,
-and-
ATTORNEY GENERAL OF CANADA,
Respondent.
REASONS FOR JUDGMENT
THE COURT
1 The reasons why we are of the opinion that this application for judicial review must succeed are very simple to understand and we shall not need to spend a great deal of time on them.
2 The decision a quo was made by an umpire who was acting under the provisions of the Unemployment Insurance Act. She refused to intervene in a decision of the Board of Referees confirming the Commission's decision denying the applicant benefits on the ground that he had to be disqualified from receiving benefits under subsection 28(1) of the Act.[1] The question was entirely one of fact, the answer to which required an assessment of the evidence and the testimony. The issue was whether the applicant, who worked for his employer but on an "as needed basis only", had failed or refused, without sufficient reason, to respond to his supervisor's calls to come in to work, or whether, as he claimed, his refusals were because of illness, as attested to by a medical certificate which he filed. Had he left voluntarily, without valid reason, or had his employment been terminated because of his own fault? Since the medical certificate is not very specific, could evidence be deduced therefrom of a reasonable excuse for inactivity, having regard to the nature and requirements of the work, or not? These were the key questions, and all that the Board of Referees, and subsequently the umpire, had for answering them were the usual basic documents, which were not without problems, the notes taken by an officer of the Commission following the telephone conversations he had had with the supervisor, and the viva voce testimony of the applicant himself, the only person who was present at the hearings.
3 The applicant, who has always acted and is still without counsel, is a francophone and says that his knowledge of English is rudimentary. Of course, he was allowed to express himself in his language and the services of an interpreter were used when necessary. Everything went without a hitch until the hearing before the umpire. There, a problem arose. What happened was that the presentation by the Commission's representative was made entirely in English. The interpreter, confounded by the rapidity of the proceedings, simply stopped translating, and despite the applicant's objections the umpire did not see fit to respond. According to the applicant - and no one is in a position to contradict him - he was then unable to understand what was being said, and accordingly he was incapable of responding knowledgably.
4 It is very possible that the breach of the rules of natural justice attested to by the incident did not have a major influence, particularly since the findings of fact being discussed were the findings made by the Board of Referees, where everything had proceeded properly. It is also very possible that the applicant's somewhat disordered and unorganized submissions could not have been viewed favourably in any event, regardless of the context and the language in which they were presented. However, we do not believe that these considerations can have any influence whatever. It is plain to us that this kind of breach of natural justice must vitiate the proceedings before the umpire, and accordingly the decision that resulted therefrom.
5 The decision a quo will therefore be set aside and the matter will be returned to the Chief Umpire for rehearing by another umpire in a manner that complies fully with the rules of natural justice.
"Louis Marceau"
J.A.
"Alice Desjardins"
J.A.
"Gilles Létourneau"
J.A.
Certified true translation
C. Delon, LL.L.
FEDERAL COURT OF APPEAL
Date: 19980127
Docket: A-380-97
BETWEEN:
GILLES CARON,
Applicant,
- and -
ATTORNEY GENERAL OF CANADA,
Respondent.
REASONS FOR JUDGMENT
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO: A-380-97
STYLE OF CAUSE:GILLES CARON v. REPRESENTATIVE OF UNEMPLOYMENT INSURANCE ET AL.
PLACE OF HEARING: EDMONTON, ALBERTA
DATE OF HEARING: JANUARY 14, 1998
REASONS FOR JUDGMENT OF MARCEAU, DESJARDINS AND LÉTOURNEAU JJ.A.
DATED: JANUARY 27, 1998
APPEARANCES:
GILLES CARON FOR THE APPLICANT
LUC LEDUC FOR THE RESPONDENT
SOLICITORS OF RECORD:
EDMONTON, ALBERTA FOR THE APPLICANT
GEORGE THOMSON
DEPUTY ATTORNEY GENERAL OF CANADA FOR THE RESPONDENT
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