Date:
20081028
Docket: A-578-07
Citation: 2008 FCA 330
CORAM: LINDEN J.A.
SEXTON
J.A.
BLAIS J.A.
BETWEEN:
GERALDINE
HICKEY
Applicant
and
THE
ATTORNEY GENERAL OF CANADA
Respondent
Heard at Halifax,
Nova Scotia, on October 28,
2008.
Judgment delivered from the Bench at Halifax, Nova Scotia, on October 28, 2008.
REASONS FOR JUDGMENT OF THE COURT BY: LINDEN J.A.
Date:
20081028
Docket:
A-578-07
Citation:
2008 FCA 330
CORAM: LINDEN J.A.
SEXTON J.A.
BLAIS
J.A.
BETWEEN:
GERALDINE
HICKEY
Applicant
and
THE ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Halifax, Nova Scotia, on October 28,
2008)
LINDEN J.A.
[1]
In
our view this application for judicial review must be allowed.
[2]
The
Umpire should have employed the reasonableness standard of review in assessing
the question of mixed fact and law involved in this application, that is,
whether the payment made to the employee following the winding up of the
pension plan was caused by the sale of the plant or whether the winding up was
an independent transaction to be dealt with under Regulation 36(19)(b) pursuant
to the Act (see Attorney General of Canada v. Kinkead [1994]
F.C.J. 709).
[3]
The
Umpire did not appear to apply this standard of review, but rather he appears
to have substituted his own view of the evidence for that of the Board of
Review, which is not permissible, as the Board had before it sufficient
evidence upon which it could base its determination.
[4]
The
application for judicial review will be allowed with one set of costs, the
decision of the umpire will be set aside and the matter will be referred back
to the Chief Umpire (or his designate) to be decided that the appeal from the
Board of Review should be dismissed.
"A.M.
Linden"
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-578-07
APPLICATION FOR JUDICIAL REVIEW PURSUANT
TO SECTION 28(1)(M) OF THE FEDERAL COURTS ACT OF A DECISION OF UMPIRE DAVID G.
RICHE, IN THE MATTER OF THE EMPLOYMENT INSURANCE ACT, S.C. 1996, c. 29, DATED
NOVEMBER 13, 2007.
STYLE OF CAUSE: Geraldine
Hickey v. The Attorney General of Canada
PLACE OF HEARING: Halifax, Nova Scotia
DATE OF HEARING: October 28, 2008
REASONS FOR JUDGMENT OF THE COURT BY: LINDEN,
SEXTON, BLAIS JJ.A.
DELIVERED FROM THE BENCH BY: LINDEN J.A.
APPEARANCES:
|
Annette Duffy
|
FOR THE APPLICANT
|
|
Melissa R. Cameron
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
|
O'Dea, Earle Law
Office
St-John's, NL
|
FOR THE
APPELLANT/
APPLICANT
|
|
John H. Sims,
Q.C.
Deputy Attorney General of Canada
|
FOR THE
RESPONDENT
|
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