Canada (Attorney General) v. Macdonald, 2003 FCA 357

Date: 20030930

Docket: A-542-02

Citation: 2003 FCA 357

CORAM:        DESJARDINS J.A.

DÉCARY J.A.

PELLETIER J.A.

BETWEEN:

                                                ATTORNEY GENERAL OF CANADA

                                                                                                                                                       Applicant

                                                                                 and

                                                              JAMES MACDONALD

                                                                                                                                                   Respondent

                                      Heard at Halifax, Nova Scotia, on September 30, 2003.

             Judgment delivered from the Bench at Halifax, Nova Scotia, on September 30, 2003.

REASONS FOR JUDGMENT OF THE COURT BY:                                                     DÉCARY J.A.

Date: 20030930

Docket: A-542-02

Citation: 2003 FCA 357

CORAM:        DESJARDINS J.A.

DÉCARY J.A.

PELLETIER J.A.

BETWEEN:

                                                ATTORNEY GENERAL OF CANADA

                                                                                                                                                       Applicant

                                                                                 and

                                                              JAMES MACDONALD

                                                                                                                                                   Respondent

                                       REASONS FOR JUDGMENT OF THE COURT

                                      (Delivered from the Bench at Halifax, Nova Scotia,

                                                               on September 30, 2003)

DÉCARY J.A.

[1]                 We are of the opinion that this application for judicial review should be allowed.

[2]                 The respondent applied for employment benefits after having been dismissed from his employment in November 2000. The Canada Employment Insurance Commission (the Commission) denied his application on the basis that he had lost his employment as a result of his own misconduct. The respondent did not appeal the decision. One of the effects of the decision was that the respondent forfeited any hours of insurable employment that he had accumulated towards qualifying for benefits (ss. 30(1)(a) of the Act).

[3]                 The respondent later regained employment, but eventually he lost his job again. He filed a new application for benefits on the basis of a total of 256 hours of insurable employment, but the filing was out of time. He therefore filed an application to antedate his second claim for benefits.

[4]                 The Commission denied the request for an antedate. It also noted that whether or not the antedate was granted, the respondent would not qualify for benefits since he required 420 hours of insurable employment. The respondent appealed both decisions.

[5]                 The Board of Referees allowed the appeal. In its view, the respondent had been justified in leaving his employment in November 2000. As a result, the disqualification should not have occurred and the respondent had therefore accumulated enough hours of insurable employment to qualify for benefits. The Board went on to decide that, in the circumstance of the second dismissal, the antedate should have been granted.

[6]                 The Commission appealed to an Umpire. The appeal was dismissed.

[7]                 Clearly, in our view, neither the Board of Referees nor the Umpire had jurisdiction to deal with the merits of the first application for benefits which had been dismissed and with respect to which no appeal had been filed. The disqualification had become res judicata and could not be reexamined in the course of the second application.

[8]                 The application for judicial review will therefore be allowed, the decision of the Umpire will be set aside and the matter will be referred back to the Chief Umpire or his designate for a new determination on the basis that the appeal by the Commission from the decision of the Board of Referees ought to be allowed.

[9]                 There will be no costs.

                                                                                                                                              Robert Décary            

                                                                                                                                                                  J.A.

                                                    FEDERAL COURT OF APPEAL

                              NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                             A-542-02

STYLE OF CAUSE:                           Attorney General of Canada and James MacDonald

PLACE OF HEARING:                     Halifax, N.S.

DATE OF HEARING:                       September 30, 2003

REASONS FOR JUDGMENT OF THE COURT:              Desjardins J.A.

Décary J.A.

Pelletier J.A.

DELIVERED FROM THE BENCH BY:                               Décary J.A.

DATED:                                                                                        September 30, 2003

APPEARANCES:

SOLICITORS OF RECORD: