Date: 20120224
Docket: A-352-11
Citation:
2012 FCA 62
CORAM: GAUTHIER J.A.
TRUDEL J.A.
MAINVILLE J.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
and
SYLVAIN GOULET
Respondent
REASONS FOR JUDGMENT
MAINVILLE J.A.
[1]
The parties have submitted
a joint motion to this Court seeking a consent judgment allowing in part the
Attorney General of Canada’s application for judicial review of decision CUB
77503 rendered on July 8, 2011, by Umpire Jacques Blanchard.
Background
[2]
In this case, the
applicant is claiming from the respondent an $11,151.00 overpayment under the Employment
Insurance Act, S.C. 1996, c. 23, for the January to September 2006 period
on the ground that, during that period, the respondent was self-employed or
engaged in the operation of a business. The applicant is also seeking a
$5,000.00 penalty for alleged false or misleading statements made by the
respondent.
[3]
The respondent appealed
the matter before a Board of Referees established under the Employment
Insurance Act. In a decision dated January 27, 2011, the Board of Referees
cancelled the claim for the overpayment on the ground that the evidence
submitted established that the respondent could rely on the exception set out
in subsections 30(2) and (3) of the Employment Insurance Regulations,
SOR/96-332:
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30. (1) Subject to subsections (2) and (4), where during
any week a claimant is self-employed or engaged in the operation of a
business on the claimant’s own account or in a partnership or co-adventure,
or is employed in any other employment in which the claimant controls their
working hours, the claimant is considered to have worked a full working week
during that week.
(2) Where a claimant is employed or
engaged in the operation of a business as described in subsection (1) to such
a minor extent that a person would not normally rely on that employment or
engagement as a principal means of livelihood, the claimant is, in respect of
that employment or engagement, not regarded as working a full working week.
(3) The circumstances to be
considered in determining whether the claimant’s employment or engagement in
the operation of a business is of the minor extent described in subsection
(2) are
(a) the time spent;
(b) the nature and amount of the
capital and resources invested;
(c) the financial success or
failure of the employment or business;
(d) the continuity of the
employment or business;
(e) the nature of the employment
or business; and
(f) the claimant’s intention and
willingness to seek and immediately accept alternate employment.
|
30. (1) Sous réserve des
paragraphes (2) et (4), le prestataire est considéré comme ayant effectué une
semaine entière de travail lorsque, durant la semaine, il exerce un emploi à
titre de travailleur indépendant ou exploite une entreprise soit à son
compte, soit à titre d’associé ou de coïntéressé, ou lorsque, durant cette
même semaine, il exerce un autre emploi dans lequel il détermine lui-même ses
heures de travail.
(2) Lorsque
le prestataire exerce un emploi ou exploite une entreprise selon le
paragraphe (1) dans une mesure si limitée que cet emploi ou cette activité ne
constituerait pas normalement le principal moyen de subsistance d’une
personne, il n’est pas considéré, à l’égard de cet emploi ou de cette
activité, comme ayant effectué une semaine entière de travail.
(3) Les circonstances qui
permettent de déterminer si le prestataire exerce un emploi ou exploite une
entreprise dans la mesure décrite au paragraphe (2) sont les suivantes :
a) le
temps qu’il y consacre;
b) la
nature et le montant du capital et des autres ressources investis;
c) la
réussite ou l’échec financiers de l’emploi ou de l’entreprise;
d) le
maintien de l’emploi ou de l’entreprise;
e) la
nature de l’emploi ou de l’entreprise;
f) l’intention
et la volonté du prestataire de chercher et d’accepter sans tarder un autre
emploi.
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[4]
The Board of Referees
also cancelled the penalty claimed, on the ground that the evidence submitted
demonstrated that the respondent had not knowingly made false statements within
the meaning of the Act.
[5]
The applicant appealed
before an umpire, who dismissed the appeal on the ground that the Board of
Referees had not erred in fact and law in making its decision.
[6]
On September 27,
2011, the applicant applied to this Court for judicial review of the umpire’s
decision pursuant to section 28 of the Federal Courts Act, R.S.C.,
1985, c. F-7.
[7]
However, on December
30, 2011, the parties filed, through their respective counsel, a joint motion
for a consent judgment on the application for judicial review.
[8]
In the affidavit
appended to this motion, counsel for the applicant submitted that his mandate
was now limited to [translation] “confining
the present application for judicial review of Umpire Blanchard’s decision CUB
77503 solely to the issue of whether or not the respondent was unemployed”. I understand
from this affidavit that the applicant is no longer challenging the umpire’s
refusal to rescind the Board of Referees’ decision to the effect that the
evidence submitted demonstrates that the respondent did not knowingly make
false statements within the meaning of the Act.
[9]
The parties’ counsel
agree in writing that a judgment be rendered on the issue of whether or not the
respondent was unemployed. Both counsel therefore require a judgment from this
Court ensuring that a Board of Referees reconsider the matter following a new
hearing, and that this Board receive directions from our Court regarding the
test set out in subsection 30(2) of the Employment Insurance
Regulations.
[10]
The only reason given
in support of this motion is that the parties [translation] “have agreed to settle the present judicial
review by consent”. Given the cursory nature of this reason, Justice Trudel of
this Court issued a direction on January 10, 2012, requesting counsel to
provide brief explanations on (1) the errors of law or of principle committed
by the umpire; and (2) the reasons that would warrant the Court directing the
next Board of Referees on the test to be applied upon reconsideration of the
matter.
Analysis
Judicial review on consent
[11]
The principal question
raised by this proceeding is whether, in the context of an application for
judicial review, this Court can set aside the decision of an umpire on the mere
consent of the parties to the proceeding.
[12]
Rule 349 of the Federal
Courts Rules, SOR/98-106 (the “Rules”) makes it possible to consent to the
reversal or variation of an order appealed from if the resultant judgment is
one that could have been given on consent. This rule, however, appears in Part
6 concerning appeals, and no such similar provision can be found in Part 5 of
the Rules concerning applications, including applications for judicial review.
[13]
Under section 118 of
the Employment Insurance Act, the decision of the umpire is final and not
subject to appeal or review, except for judicial review under section 28
of the Federal Courts Act. Therefore, an umpire’s decision cannot be set
aside by mere consent of the parties. Quashing such a decision by mere consent
of the parties is, in my opinion, contrary to Parliament’s intention and to the
principle of finality and stability of judgments stated by Parliament. Formal
judicial intervention is therefore required for this purpose.
[14]
Thus, the parties to
this proceeding may therefore settle among themselves the financial
consequences of an umpire’s decision, but that decision remains undisturbed,
regardless of the terms and conditions of such a settlement. If the parties
wish to quash the umpire’s decision as part of their settlement, they must do
so by applying for judicial review before this Court.
[15]
This Court has on
occasion disposed of an application for judicial review on joint motion by the
parties insofar as certain conditions were respected: Canada (Attorney
General) v. Burnham, 2008 FCA 380, 384 N.R. 149; Lynch v. Canada
(Minister of Manpower and Immigration), [1974] F.C.J. No. 1006 (C.A.) (QL);
Pennachio v. Canada (Minister of Manpower and Immigration), [1974]
F.C.J. No. 1007 (C.A.) (QL). Although these decisions do not explain on what
legal basis this Court can act, I note that subsection 18.4(1) of the Federal
Courts Act (applicable to this proceeding by virtue of subsection 28(2) of
that Act), requires of our Court that it hear and determine without delay and
in a summary way an application for judicial review. Part 5 of the Rules
establishes the summary way to be followed for dealing with such applications;
however, Rule 55 allows the Court, in special circumstances, to vary a
rule or dispense with compliance with a rule. On this basis, therefore, this
Court may indeed render judgment on a judicial review application on joint
motion of the parties when special circumstances warrant it.
[16]
However, such a
judgment is not rendered on the consent of the parties, but is rather a
judgment on the merits of the application for judicial review rendered in a
summary way on joint motion. Thus, the application for judicial review can only
be allowed insofar as the parties demonstrate an error by the umpire that justifies
such a conclusion. It is therefore incumbent upon the parties to set out in
their motion record the facts justifying the intervention of this Court and the
legal grounds that support such an intervention: Canada (Attorney General) v. Burnham, above, at paragraphs 7 and 11, Pennachio
v. Canada (Minister of Manpower and Immigration), above, at paragraph 3.
[17]
Moreover, in such
circumstances, this Court cannot be bound by the parties’ consent, be it with
regard to the judgment to be rendered or with regard to the applicable legal
principles. Thus, in Salibian v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 250 (C.A.), Justice Décary
pointed out at page 253 that a concession on a point of law could not be
binding on the Court. The same conclusion was reached by Justice Pratte in
Life Underwriters Assn. of Canada v. Provincial Assn. of Quebec Life
Underwriters [1990] 3 F.C. 500 (C.A.), at pages 505–06 (supported in this
respect by Justice Marceau, at page 508). Although this decision was reversed on
another point in law (see [1992] 1 S.C.R. 449), the principle set out above is
nonetheless still valid.
[18]
Lastly, since a summary
judgment in the context of an application for judicial review is rendered on an
incomplete record and without this Court having had the opportunity to hear a
counter-argument, the reasons supporting such a judgment cannot bind this Court
in its subsequent decisions: Uppal v. Canada (Minister of Employment and
Immigration), [1987] 3 F.C. 565 (C.A.), at pages 575–76, Armstrong v.
Canada (1996), 136 D.L.R. (4th) 22, 197 N.R. 262, [1996] F.C.J. No. 599 (C.A.)
(QL), at paragraph 20 of the QL version.
The present case
[19]
In the present matter,
the parties’ common submissions rely on their reading of the respective
decisions of the Board of Referees and of the umpire.
[20]
In a brief joint letter
dated January 19, 2012, prepared in response to the order issued by
Justice Trudel, the parties’ counsel make two arguments. First, they allege
that the umpire erred in law through [translation]
“his refusal to intervene on the ground that the Board of Referees’ decision
regarding the state of unemployment was a factual one and that it was the Board’s
responsibility to determine the facts”. According to the parties’ counsel, the umpire
therefore asked the wrong question by restricting the appeal before him to a
simple issue of fact.
[21]
Contrary to what the
parties’ counsel submit, the umpire did ask the correct question at page 4
of his decision:
[translation]
The issue before the undersigned is whether the Board of Referees
correctly applied the criteria pursuant to section 30 of the [Employment
Insurance] Regulations. This is a question of mixed fact and law
that must be reviewed on the standard of reasonableness (A-256-0, Martens v.
Canada (Attorney
General), 2008 FCA 240).
[22]
However, the parties’ counsel
add a second argument, namely that it [translation]
“is not enough for a Board of Referees to enumerate the factors in subsection
30(3) of the Employment Insurance Regulations (EIR) and to list the
answers provided for each factor without answering the question before it,
namely whether the claimant was operating his business to the minor extent
provided for by subsection 30(2) of the EIR”. To support this last submission, both
counsel rely on the judgment of this Court in Martens v. Canada (Attorney General), 2008 FCA 240 (“Martens”).
[23]
In Martens, Justice
Ryer wrote at paragraph 34 that “[w]hile not bound to apply de novo the
test in subsection 30(2) [of the Employment Insurance Regulations], the
Umpire was required to determine whether the relevant legal principles were
correctly identified, considered and applied by the Second Board”. More
specifically, at paragraph 33 of Martens, this Court was of the
following opinion:
While the Second Board identified the relevant statutory
considerations, in subsections 30(2) and (3) [of the Regulations], with respect
to the determination of whether Mr. Martens’ engagement in the farm operations
was minor in extent, there is no indication that the objective test in
subsection 30(2) [of the Employment Insurance Regulations] was actually
considered by the Second Board in arriving at its conclusion that this
engagement was more than minor in extent. Indeed, the Umpire summarized
the decision of the Second Board as having reached that conclusion based on
a consideration of the six factors in subsection 30(3) alone. The Umpire
then proceeded to confirm the conclusion of the Second Board following his own
consideration of those factors without expressly addressing the objective test
contained in subsection 30(2) [of the Employment Insurance Regulations].
(Emphasis added)
[24]
Consequently, the only
criticism the parties can make of the umpire is that he did not set aside the
decision of the Board of Referees on the ground that it had not explicitly
stated its conclusion that the respondent’s business activities were not his
principal means of livelihood during the concerned benefit period.
[25]
At first sight, based
on a reading of its decision, the Board of Referees does not seem to have
completely taken into account the approach and principles set out in Martens.
In other words, the Board of Referees did not ask whether the extent of the
respondent’s engagement in his business during the benefit period, determined
according to the factors provided for at subsection 30(3) of the
Regulations, was such that the respondent could not rely on that engagement as a
principal means of livelihood. In the present case, the Board of Referees
merely stated its findings of fact in light of the factors enumerated in
subsection 30(3) of the Employment Insurance Regulations without
drawing any explicit conclusion on the use of the test described in
subsection 30(2).
[26]
Thus, given the
particular circumstances of the present matter, I would allow the application
for judicial review, but only in part and with different conclusions to those
suggested by the parties’ counsel.
[27]
I would exempt the
parties from compliance with sections 306 to 316 of the Rules. I would also
allow in part the application for judicial review, without costs, set aside that
part of the umpire’s decision, respecting the respondent’s unemployment status,
and refer the matter back to the Chief Umpire, or his or her designate, for a
new determination, with directions to allow in part the appeal from the Board
of Referees’ decision, to set aside only that part of the
Board of Referees’ decision respecting the respondent’s unemployment
status, and to refer the
issue of the respondent’s unemployment status for a new determination
before a Board of Referees established in accordance with the Employment
Insurance Act.
“Robert M. Mainville”
“I agree.
Johanne Gauthier J.A.”
“I agree.
Johanne Trudel J.A.”
Certified true translation,
Johanna Kratz,
Translator
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