Date: 20111102
Docket: A-227-11
Citation: 2011 FCA 301
CORAM: EVANS J.A.
SHARLOW J.A.
STRATAS J.A.
BETWEEN:
THE
ATTORNEY GENERAL OF CANADA
Applicant
and
MINDY
KNEE
Respondent
Heard at Halifax,
Nova Scotia, on November 2, 2011.
Judgment
delivered at Halifax, Nova Scotia, on November 2, 2011.
REASONS FOR JUDGMENT BY: EVANS
J.A.
CONCURRED
IN BY: SHARLOW
J.A.
STRATAS
J.A.
Date: 20111102
Docket:
A-227-11
Citation: 2011 FCA 301
CORAM: EVANS
J.A.
SHARLOW
J.A.
STRATAS
J.A.
BETWEEN:
THE ATTORNEY
GENERAL OF CANADA
Applicant
and
MINDY KNEE
Respondent
REASONS FOR
JUDGMENT
EVANS J.A.
[1]
This
is an application for judicial review by the Attorney General of Canada to set
aside a decision of an Umpire (CUB 76810) dismissing an appeal by the Attorney
General from a decision by a Board of Referees (Board), dated July 22, 2010. In
that decision, the Board allowed Mindy Knee’s appeal of the Canada Employment
Insurance Commission’s rejection of her claim for extended employment insurance
benefits under the Extended Employment Insurance and Training Incentive
(EEITI), also called Pilot Project No. 14.
[2]
The
Commission had concluded that Ms Knee did not meet the EEITI’s eligibility
criteria because she had not started a full-time program of instruction or
training, to which she had been referred by the Commission, in one of the 52
weeks following the beginning of her benefit period. Claimants who meet the
eligibility criteria contained in section 77.91 of the Employment Insurance
Regulations, SOR/96-332 (Regulations) are entitled to benefits for a longer
period than normal as an incentive to undergo further training and education to
enhance their employment opportunities.
[3]
The
provisions in the Regulations relevant to this application are as follows.
|
77.91 (3) Pilot Project No. 14 applies in
respect of every claimant who meets the following criteria:
…
(d) the claimant is referred by
the Commission, or an authority that the Commission designates, under
paragraph 25(1)(a) of the Act, to a course or program of instruction or
training
(i) that is full-time,
(ii) that has a duration of at least 20
weeks, and
(iii) that begins during one of the 52
weeks following the beginning of the claimant’s benefit period, but not
before May 31, 2009.
|
77.91 (3) Le projet pilote no 14 s’applique
à tout prestataire qui satisfait aux conditions suivantes :
[…]
d) il est dirigé par la Commission ou
l’autorité qu’elle désigne en vertu de l’alinéa 25(1)a) de la Loi vers un
cours ou programme d’instruction ou de formation :
(i) à temps plein,
(ii) dont la durée est d’au moins vingt
semaines,
(iii) qui commence dans les
cinquante-deux semaines suivant le début de sa période de prestations mais au
plus tôt le 31 mai 2009.
|
[4]
Ms
Knee decided to attend Memorial University (MUN) because she thought that this
would better equip her for the labour market, and be less costly, than
enrolling in a program at a private college. Through no fault of her own, she
was unable to start in September. She received a letter of acceptance from the
University Registrar, dated November 13, 2009, for Pre-Business Administration
in the 2009-10 Winter Semester. However, not satisfied with this letter, the
Commission required a letter from the faculty before referring her to a program
at MUN.
[5]
The
faculty letter did not arrive in time for her to start at MUN in January. So, rather
than simply waiting until May, Ms Knee enrolled in two prerequite courses in
January, which she successfully completed. She started a full course-load in
the Business Administration program on May 10, 2010.
[6]
Despite
some confusion as to exactly when the 52-week period started, it is clear that
it ended before May 10, 2010. This was the basis of the Commission’s refusal of
Ms Knee’s claim for extended benefits under the EEITI.
[7]
The
Board agreed with the Commission that Ms Knee had not met all the statutory
requirements because she had started the full-time program at MUN one week
outside the 52-week period prescribed in subparagraph 77.91(3)(d)(iii).
Nonetheless, the Board allowed her appeal, reasoning that, since she had acted
reasonably throughout and the delays were attributable to others, and given the
“spirit of the Regulations and the reasons for its implementation”, she had in
fact “met all criteria.”
[8]
On
appeal, the Umpire agreed that Ms Knee had missed the 52-week deadline when she
started to take a full course-load on May 10. However, he interpreted the
requirement that an eligible program of instruction must be “full-time” as
meaning that the claimant must have been occupied full time on the program, in
the sense that she did nothing else. On this basis, he concluded, Ms Knee was
in a program of full-time instruction beginning in January 2010, and had thus
started it within the 52-week deadline.
[9]
I
well understand why the Board and the Umpire were anxious to find in Ms Knee’s
favour; rigid rules are always apt to give rise to some harsh results that
appear to be at odds with the objectives of the statutory scheme. However, tempting
as it may be in such cases (and this may well be one), adjudicators are
permitted neither to re-write legislation nor to interpret it in a manner that is
contrary to its plain meaning.
[10]
In
my view, the Board erred in law by finding that Ms Knee met the criteria when
it had already concluded that she had missed the 52-week deadline. The Umpire also
erred in law when he interpreted “full-time” program to mean a program during
which the claimant did nothing else. On this reasoning Ms Knee would have been
eligible for EEITI if she had been taking only one course on which she spent
one hour a week. This is not what is meant by a “full-time program of
instruction” in the Regulations. Whether a program is “full-time” cannot depend
on whether or not a claimant enrolled in a course chose to engage in other
activities when not studying.
[11]
This
is sufficient to grant the application for judicial review. However, I would
add that the record in this case is far from satisfactory. It does not contain
evidence of the program to which the Commission referred Ms Knee, nor the
letter requested by the Commission from the faculty at MUN describing the
program into which Ms Knee had been accepted. In the circumstances, these deficiencies,
attributable to the bases on which Ms Knee appealed to the Board and to the
assumptions on which the case proceeded, are not fatal to the Attorney
General’s application.
[12]
For
these reasons, I would allow the application for judicial review, set aside the
decision of the Umpire, and remit the matter to the Chief Umpire or his
delegate to be determined on the basis that the appeal be allowed. Costs were
not requested and I would not grant them.
"John M.
Evans"
“I
agree
K.
Sharlow J.A.”
“I
agree
David
Stratas J.A.”
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