Date: 20040115
Docket: A-254-03
Citation: 2004 FCA 24
CORAM: STRAYER J.A.
ROTHSTEIN J.A.
SHARLOW J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
DARRYL GARLEY
Respondent
Heard at Winnipeg, Manitoba, on January 15, 2004.
Judgment delivered from the Bench
at Winnipeg, Manitoba, on January 15, 2004
REASONS FOR JUDGMENT BY: SHARLOW J.A
CONCURRED IN BY: ROTHSTEIN J.A.
DISSENTING REASONS BY: STRAYER J.A.
Date: 20040115
Docket: A-254-03
Citation: 2004 FCA 24
CORAM: STRAYER J.A.
ROTHSTEIN J.A.
SHARLOW J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
DARRYL GARLEY
Respondent
REASONS FOR JUDGMENT
(Delivered from the Bench at Winnipeg, Manitoba
on January 15, 2004)
SHARLOW J.A.
[1] A number of issues were raised in this application relating to section 51 of the Employment Insurance Regulations, SOR/96-332. The principal issue is whether the Umpire erred in concluding that it was open to the Board of Referees, on the evidence in the record, to find that the workforce reduction was "permanent" for the purposes of paragraph 51(2)(b) of the Regulations. Justice Rothstein and I are of the view that the decision of the Umpire discloses no error of fact or law that warrants the intervention of this Court. For that reason, this application will be dismissed with costs.
"K. Sharlow"
J.A.
STRAYER J.A. (Dissenting)
[2] I regret that I am unable to concur in the reasons of my colleagues in which they would dismiss this application.
[3] In my view it is sufficient reason to allow the application, and to set aside the Umpire's decision, that neither the Umpire, nor the Board of Referees decision she confirmed, applied the requirement of paragraph 51(2)(b) that the objective of this work-reduction process be a permanent reduction in the overall number of employees. This was an essential criterion to allow them to find "just cause" for the respondent voluntarily severing his employment. To ignore this express requirement was an error of law reviewable on the standard of correctness. If instead the Umpire can be taken to conclude that the facts supported a finding of a permanent arrangement, such a finding was, with respect, made without regard to the material before the Board and the Umpire.
[4] I would therefore have allowed the application, set aside the Umpire's decision, and referred the matter back for reconsideration by a different Umpire.
"B.L. Strayer"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-254-03
STYLE OF CAUSE: The Attorney General of Canada v. Darryl Garley
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: January 15, 2004
DELIVERED FROM THE BENCH BY: Sharlow J.A.
CONCURRED IN BY: Rothstein J.A.
DISSENTING REASONS BY: Strayer J.A.
APPEARANCES:
|
Ms. Marta E. Burns
|
FOR THE APPLICANT
|
|
Mr. Frank Luce
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
|
Morris Rosenberg
Attorney General of Canada
|
FOR THE APPLICANT
|
|
CAW - Canada Legal Department
Toronto, Ontario
|
FOR THE RESPONDENT
|
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