Date:
20110315
Docket:
A-313-10
Citation:
2011 FCA 99
CORAM: DAWSON J.A.
LAYDEN-STEVENSON J.A.
MAINVILLE
J.A.
BETWEEN:
DENIS LONG
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
LAYDEN-STEVENSON J.A.
[1]
Mr.
Long applies for judicial review of the decision of the Umpire dismissing his
appeal from a decision of the Board of Referees (the board).
[2]
Mr.
Long previously had qualified for employment insurance benefits pursuant to the
Employment Insurance Act, S.C. 1996, c. 23 (the Act). He worked during
his benefit period which began November 2, 2008 and accumulated insurable
hours. His benefit period ended on November 28, 2009. Mr. Long was laid off on
November 27, 2009 and applied for employment insurance benefits on December 3,
2009. His application was denied because he had not worked the requisite number
of hours during his qualifying period, which under normal circumstances, would
begin on November 30, 2008 and end on November 28, 2009. The Commission
determined the qualifying period to be November 2, 2008 to November 28, 2009.
Mr. Long had been unable to work for a six-week period from September 20, 2008
to October 31, 2009 due to a work-related injury.
[3]
Before
the board, Mr. Long argued, among other things, that his qualifying period
should be extended back to October 19, 2008 (six weeks) under paragraph
8(2)(a) of the Act. The board rejected that argument. It concluded that a prior
benefit period was established the week commencing November 2, 2008 and the
qualifying period could not be extended beyond this date. The Umpire dismissed
Mr. Long’s appeal from the board’s decision.
[4]
The
only issue argued on this application for judicial review is whether the Umpire
erred in dismissing the appeal on that basis. I conclude that the Umpire ought
to have dismissed the appeal because I arrive at the same determination as the
board, although I do so by a different route.
[5]
In
my view, this Court’s decision in Jackson v. Canada (A.G.),
[1991] F.C.J. No. 522 (C.A.) (Jackson) is dispositive. There, the Court
interpreted subsection 7(1) of the former legislation, which is in substance
the same as subsection 8(1) of the Act.
[6]
Subsection
8(1) provides for two possible qualifying periods. It specifically requires
that the shorter of the two possibilities be chosen as the applicable
qualifying period. In Jackson, this Court held that it is after
taking into consideration any applicable extensions - in this case under
paragraph 8(2)(a) - of the 52 week period that a determination can be made as
to which of the two possible qualifying periods is the shorter.
[7]
Subsection
8(1) and paragraph 8(2)(a) of the Act read:
|
8. (1) Subject to subsections (2) to (7),
the qualifying period of an insured person is the shorter of
(a) the 52-week period immediately before the
beginning of a benefit period under subsection 10(1), and
(b) the period that begins on the first day of an
immediately preceding benefit period and ends with the end of the week before
the beginning
of a benefit period under subsection
10(1).
(2) A qualifying period mentioned in paragraph (1)(a)
is extended by the aggregate of any weeks during the qualifying period for which
the person proves, in such manner as the Commission may direct, that
throughout the week the person was not employed in insurable
employment because the person was
(a) incapable of work because of a prescribed
illness, injury, quarantine or pregnancy;
|
8. (1) Sous
réserve des paragraphes (2) à (7), la période de référence d’un assuré est la
plus courte des périodes suivantes :
a) la période
de cinquante-deux semaines qui précède le début d’une période de prestations
prévue au paragraphe
10(1);
b) la période
qui débute en même temps que la période de prestations précédente et se
termine à la fin de la semaine précédant le début
d’une période de
prestations prévue au paragraphe 10(1).
(2) Lorsqu’une
personne prouve, de la manière que la Commission peut ordonner, qu’au cours
d’une période de référence visée à l’alinéa (1)a) elle n’a pas exercé,
pendant une ou plusieurs semaines, un emploi assurable pour l’une ou l’autre
des raisons ci-après, cette période de référence est prolongée d’un nombre équivalent
de semaines :
a) elle était
incapable de travailler par suite d’une maladie, d’une blessure, d’une mise
en
quarantaine ou d’une
grossesse prévue par
règlement;
|
[8]
Mr.
Long’s argument fails because he selects paragraph 8(1)(a) as the shorter of
the two possible qualifying periods and then adds his proposed six-week
extension. His approach is contrary to the Jackson ruling.
Applying Jackson, Mr. Long’s
paragraph 8(1)(a) qualifying period is 58 weeks (granting him credit for the
paragraph 8(2)(a) extension). His paragraph 8(1)(b) qualifying period,
ascertained in accordance with the formula contained in that paragraph, is 56
weeks. The 8(1)(b) qualifying period, being the shorter of the two
possibilities, is the qualifying period that must apply.
[9]
The
board, albeit by a different route, reached the same conclusion and the correct
result. Consequently, it was proper for the Umpire to dismiss the appeal of the
board’s ruling on this issue.
[10]
However,
that does not end the matter. Mr. Long also raises an issue of procedural
fairness. This argument arises because it was only at the hearing of this
application that Jackson was raised for the first time and then, by the
Court. It had not been referred to by the respondent at any stage of the
proceedings and neither the board nor the Umpire made reference to it. While
that omission does not alter the binding effect of Jackson, it does
cast a shadow over Mr. Long’s application.
[11]
Mr.
Long claims, had Jackson been argued before the board or the Umpire, he
would have approached his application for judicial review of the Umpire’s
decision differently. Specifically, he would have challenged other aspects of
the Umpire’s decision rather than focus exclusively on what he perceived to be
his strongest ground. While the onus always lies on an applicant to advance all
grounds upon which an application for judicial review is sought, in the
peculiar circumstances of this matter and particularly the manner in which it
unfolded, I am concerned about Mr. Long’s perception that his hearing before
this Court was unfair.
[12]
Consequently,
although Mr. Long has not been successful (and cannot succeed) on the ground
that he advanced, in my view, it would be appropriate to grant leave for him to
serve and file an amended notice of application to address any other grounds
upon which he challenges the decision of the Umpire. When asked to address the
prospect of this potential remedy at the hearing, counsel for the respondent
took no position.
[13]
I
would grant leave to Mr. Long to serve and file an amended notice of
application within 30 days of the date of the order in this matter. All other
steps in the proceeding should run in accordance with the provisions of the Federal
Courts Rules, SOR/98-106. In the circumstances, I would make no order as to
costs.
“Carolyn Layden-Stevenson”
“I
agree
Eleanor
R. Dawson J.A.”
“I
agree
Robert
M. Mainville J.A.”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-313-10
(APPEAL
FROM A DECISION OF THE HONOURABLE R.J. MARIN, DATED MARCH 23, 2010, DOCKET NO.
CUB 74847)
STYLE OF CAUSE: DENIS LONG v. THE ATTORNEY
GENERAL OF CANADA
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March
14, 2011
REASONS FOR ORDER BY: LAYDEN-STEVENSON
J.A.
CONCURRED IN BY: DAWSON J.A.
MAINVILLE
J.A.
DATED: MARCH
15, 2011
APPEARANCES:
|
Denis
Long
|
FOR
THE APPLICANT
|
|
Derek
Edwards
|
FOR
THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
Denis
Long
Fort
Erie, Ontario
|
FOR THE APPLICANT
|
|
Myles
J. Kirvan
Deputy
Attorney General of Canada
|
FOR THE RESPONDENT
|
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