Docket:
A-179-13
Citation: 2013 FCA 294
CORAM: PELLETIER
J.A.STRATAS J.A.
NEAR J.A.
|
|
|
BETWEEN:
|
|
KUEG AYAI
|
|
Applicant
|
|
and
|
|
ATTORNEY GENERAL OF CANADA
|
|
Respondent
|
Heard
at Calgary, Alberta, on November 27,
2013.
Judgment
delivered at Ottawa, Ontario, on December
19, 2013.
REASONS FOR JUDGMENT BY: PELLETIER J.A.
CONCURRED IN BY:
STRATAS J.A.
NEAR J.A.
Docket:
A-179-13
Citation: 2013 FCA 294
CORAM: PELLETIER J.A.
STRATAS J.A.
NEAR J.A.
|
|
|
BETWEEN:
|
|
KUEG AYAI
|
|
Applicant
|
|
and
|
|
ATTORNEY GENERAL OF CANADA
|
|
Respondent
|
REASONS
FOR JUDGMENT
PELLETIER J.A.
[1]
At the opening of this appeal, the respondent asked that the Attorney
General of Canada be substituted for the Employment Insurance Commission as
respondent in this appeal. That request will be granted and the style of cause
will be amended with immediate effect.
[2]
Mr. Ayai seeks judicial review of a decision of an umpire appointed
under the Employment Insurance Act, S.C. 1996, c. 23 (the Act),
dismissing his appeal from the decision of the Board of Referees. The latter
confirmed the Employment Insurance Commission's decision to deny Mr. Ayai
regular or sickness benefits pursuant to s. 18 of the Act.
[3]
At all material times, Mr. Ayai was or had been employed at a poultry
processing plant. He suffered from a medical condition which, at times, limited
his ability to do all aspects of his job. In addition, the work environment is
one in which certain limitations cannot be accommodated for occupational safety
reasons. As a result, Mr. Ayai was sent home by his employer in December 2010. He
received short term disability benefits under the company disability plan but
those benefits ran out in March 2011.
[4]
Mr. Ayai then applied for Employment Insurance benefits. He was told
that in order to qualify for sickness benefits, he would have to provide a
medical certificate confirming that he was unable to work. Mr. Ayai’s physician
had already certified that he was able to work at light duties but there were no
such jobs with his employer. As a result, he was not in a position to provide a
medical certificate, and so, his claim for sickness benefits was refused. Mr.
Ayai was also told that he could qualify for regular benefits if he was willing
to look for other employment. He refused to do so: see Respondent’s Record at
page 44.
[5]
Mr. Ayai challenged the Commission's decision before the Board of
Referees. The Board's conclusion was that "after reviewing all the factual
evidence presented [..] this claimant has not established that he is unable to
work due to his illness or injury at any time and that he has not proven that
apart from his illness or injury [...] he is otherwise available for
work": see Respondent’s Record at page 74.
[6]
Mr. Ayai appealed from the Board of Referees to the Umpire. In his
notice of appeal, Mr. Ayai challenged the refusal of both sickness and regular
benefits: see Respondent’s Record at page 76. The Umpire dismissed the appeal
on the basis that Mr. Ayai had not produced a medical certificate establishing
that he was unable to work by reason of illness as required by s. 18 of the
Act. The Umpire did not deal with the issue of regular benefits.
[7]
Mr. Ayai now appeals to this Court.
[8]
The standard of review of the Umpire's application of the law to the
facts is reasonableness: see Karelia v. Canada (Attorney General), 2012
FCA 140 at paragraph 12. The Umpire's conclusion that Mr. Ayai had not provided
the evidence necessary to establish his entitlement to sickness benefits was
reasonable on the record before him.
[9]
The Umpire’s failure to deal with Mr. Ayai’s appeal with respect to
regular benefits would normally result in the matter being sent back to the
Umpire for a ruling. However, in light of the evidence before the Board of
Referees to the effect that Mr. Ayai was not prepared to look for or accept
other employment, based, it seems, on his view of a constitutional right to
work for his regular employer to the exclusion of all others, the outcome of
such a referral would be a foregone conclusion.
[10]
The remedies available on judicial review are discretionary, even where
it is shown that intervention would be warranted. This was recently confirmed
by the Supreme Court and this Court. In Dennis v. Adams Lake Band, 2011
FCA 37, [2011] F.C.J. No. 150, this Court wrote, paragraphs 28 and 30:
28 …
MiningWatch Canada v. Canada (Fisheries and Oceans),
2010 SCC 2, [2010] 1 S.C.R. 6. … provides us with more guidance about the power
of a reviewing court not to quash a decision of an administrative body, even
when there are grounds for doing so.
…
30 The
message in MiningWatch is that the
broadest range of practical factors must be considered and legal error or
non-compliance should not be given undue weight: the practicalities may
outweigh the legalities.
[11]
In this case, the Umpire’s error cannot alter the inevitable outcome of
Mr. Ayai’s application for judicial review. As a result, the interests of
justice are best served by dismissing it now rather than referring it back to the
Umpire. Since no costs were requested, none will be awarded.
"J.D. Denis Pelletier"
“I agree
David Stratas”
“I agree
D.G. Near”
Email this Content