[1] The issue in this application for judicial review is whether the Umpire made a reviewable error in reversing the decision of the Board of Referees (the Board) that the respondent was disentitled from employment benefits within the meaning of paragraph 11(4)a) of the Employment Insurance Act, S.C. 1996 c. 23 (the Act).

[2] Section 11 of the Act, in its relevant parts, reads as follows:

Week of unemployment

11. (1) A week of unemployment for a claimant is a week in which the claimant does not work a full working week.

...

Exception -- compensatory leave

(4) An insured person is deemed to have worked a full working week during each week that falls wholly or partly in a period of leave if

(a) in each week the insured person regularly works a greater number of hours, days or shifts than are normally worked in a week by persons employed in full-time employment; and

(b) the person is entitled to the period of leave under an employment agreement to compensate for the extra time worked.

Semaine de chômage

11. (1) Une semaine de chômage, pour un prestataire, est une semaine pendant laquelle il n'effectue pas une semaine entière de travail.

...

Exception : congé

(4) L'assuré qui travaille habituellement plus d'heures, de jours ou de périodes de travail que ne travaillent habituellement au cours d'une semaine des personnes employées à plein temps et qui a droit, aux termes de son contrat de travail, à une période de congé est censé avoir travaillé une semaine entière de travail au cours de chaque semaine qui est comprise complètement ou partiellement dans cette dernière période.

[3] An investigation, to which the Board made reference, revealed that the respondent was employed at the Columbus Club as a bar manager. The Club had been operating with two regular bartenders for the past eight to ten years, each working alternate work weeks and drawing employment insurance benefits during the off time. The respondent's regular hours of work were around 44 hours per week. The Board noted the respondent's confirmation of her employer's statement, to which she added she usually worked 42 hours per week plus another 10 or more hours per week for special functions.

[4] The Board concluded that the respondent "was not unemployed when she was laid off work due to a prearranged period of leave resulting from working a longer work week and then returning to work the following week" (A.B., p. 61).

[5] In reversing the decision of the Board, the Umpire said that the Board had misinterpreted the facts by relying on a piece of evidence filed by the Commission (exhibit 5), which reported erroneously that the respondent had stated that "the regular bar hours amount to 42 hours a week but other activities, such as catering and other parties, add another 10 or more hours to that total" (A.B., p. 6).

[6] The Umpire said that the actual facts were that the respondent only worked 42 hours per week and not more, and that on the other week, she may have worked, if at all, 10 more hours. Based on these considerations, the Umpire reversed the decision of the Board and held that the respondent was not caught by paragraph 11(4)a) of the Act (A.B., p. 5-6).

[7] The Umpire, in my view, erred in law in interfering with the finding of the Board.

[8] In order to make a determination under subsection 11(4) of the Act, there must be evidence to show that the claimant worked more than the usual number of hours that are normally worked in a week by persons employed in full time employment. This question is essentially one of fact and the Umpire should not intervene unless the Board made a reviewable error, namely that it "based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it" (paragraph 115(2)(c) of the Act).

[9] In Re Roberts et al. and Canada Employment and Immigration Commission et al.,[1985] 60 N.R. 349, [1985] F.C.J. No. 413, (1985) 19 D.L.R. (4^th) 570, MacGuigan J.A. for the Court stated that although the word "appeal" is used in section 115 of the Act, (formerly section 95 of the Unemployment Insurance Act), to describe the procedure before an Umpire, the substance of the Umpire's jurisdiction is largely identical with that of this Court in section 28 of the Federal Courts Act. The proceeding is therefore not an appeal in the usual sense of that word but a circumscribed review.

[10] MacGuigan J.A. formulated the proper test to apply, under what has now become paragraph 115(2)(c) of the Act, in the following terms:

In our view, the proper test for an umpire to apply ... is whether there was any evidence upon which the board of referees could have found as they did or whether they made any mistake of principle.

(see also Attorney General of Canada v. William Cole, [1983] 1 F.C. 425; Canada (Attorney General) v. Feere, [1995] F.C.J. No. 109). Moreover, in Guay v. Canada (Employment and Insurance Commission), (1997) 221 N.R. 329, [1997] F. C.J. No. 1223, this Court reminded that the Board of Referees is "the pivot of the entire system put in place by the Act for the purpose of verifying and interpreting the facts".

[11] There was evidence which supported the Board's conclusion that the respondent's regular scheduled hours and extra hours were completed during the same week.

[12] A record of the telephone conversation between Joseph Hogan, the Columbus Club manager and an employment insurance officer on June 1, 2002, related the following information (A.B., p. 39):

For the past couple of years the club has cut back on the bar hours and regular hours now amount to 44 hours weekly. When there are special functions, weddings, dart tournaments, etc., the bar hours are usually extended and can add eight or ten hours to the weekly total.

(My emphasis.)

[13] The respondent herself, in a letter to the Board dated July 8, 2002, wrote (A.B., p. 43):

Because there were too many hours for one person but not enough for two persons, I was requested to work alternate weeks. During my weeks off I was eligible to work elsewhere if the opportunity should arise. The weeks off had nothing to do with the Columbus Club and were not considered part of my work schedule.

...

On a regular basis, Columbus Club is opened 7 days a week for 47 hours. When catering functions occur at the Columbus Club, extra hours may be obtained. These, though, follow no regular set work pattern, making it impossible to predict what the hours will be. During many weeks/months of the year, there are no functions, and then no extra hours are required.

(My emphasis.)

[14] Exhibit 5, which the Umpire said contained an error of fact, reflects the recording of a conversation between the respondent and an employment insurance officer. It reads thus (A.B., p. 41):

I spoke to the claimant about her work at the Columbus Club in Carbonear. She stated that the information provided by the business manager is correct. She has been there about 10 years and this arrangement was in place when she went to work there.

She states the regular bar hours at the club amount to 42 hours a week but other activities, such as catering and other parties, add another 10 or more hours to that total. She said that there is usually some form of additional activity there every week.

(My emphasis.).

[15] Nothing in the record indicates on what basis the Umpire could assert that an error had been committed by an employment insurance officer in recording that conversation. The Umpire himself gave no indication to that effect in his reasons.

[16] The Umpire had before him a letter from the respondent, presumably filed with her notice of appeal. In that letter, the respondent complained that the Board of Refereed erred in considering the facts pertaining to her claim. She, however, did not give additional information as to the computation of her extra hours. She simply reiterated that when she was off work, she was in fact unemployed and had received employment insurance benefits for the past ten years under a work share program.

[17] Be that as it may, this letter from the respondent was not before the Board of Referees and could not have been considered by the Umpire (Canada (Attorney General) v. Taylor, (F.C.A.), 81 D.L.R. (4^th) 679, 126 N.R. 345, [1991] F.C.J. No. 508.

[18] It was therefore open to the Board to conclude, on the evidence before it, that the respondent regularly worked a greater number of hours than are normally worked in a week by persons employed in full-time employment.

[19] This application for judicial review will be allowed without costs, 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 redetermination on the basis that the respondent was disentitled from employment benefits within the meaning of paragraph 11(4)a) of the Act.

"Alice Desjardins"

J.A.

"I agree

M. Nadon J.A."

"I agree

J.D. Denis Pelletier J.A."

FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-92-03

STYLE OF CAUSE: ATTORNEY GENERAL OF CANADA

v. CAROL MERRIGAN

PLACE OF HEARING: St. John's, Newfoundland and Labrador

DATE OF HEARING: June 24, 2004

REASONS FOR ORDER BY: DESJARDINS J.A.

CONCURRED IN BY: NADON J.A.

PELLETIER J.A.

DATED: July 8, 2004

APPEARANCES:

Ms. Melissa R. Cameron For the Applicant

Ms. Carol Merrigan Respondent on her own behalf

SOLICITORS OF RECORD:

Mr. Morris Rosenberg For the Applicant

Deputy Attorney General of Canada

Ms. Carol Merrigan Respondent on her own behalf

Carbonear, NL

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Canada (Attorney General) v. Merrigan, 2004 FCA 253

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2004 FCA 253