Date: 20040331
Docket: A-238-03
Citation: 2004 FCA 142
Toronto, Ontario, March 31st, 2004
CORAM: DÉCARY J.A.
EVANS J.A.
PELLETIER J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
OMAR VALLADOLID
Respondent
Heard at Toronto, Ontario, March 31, 2004.
Judgment delivered from the Bench at Toronto, Ontario, on March 31, 2004.
REASONS FOR JUDGMENT BY: EVANS J.A.
Date: 20040331
Docket: A-238-03
Citation: 2004 FCA 142
CORAM: DÉCARY J.A.
EVANS J.A.
PELLETIER J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
OMAR VALLADOLID
Respondent
REASONS FOR JUDGMENT
(Delivered from the Bench at Toronto, Ontario, on March 31, 2004)
EVANS J.A.
[1] This is an application for judicial review on behalf of the Minister of Human Resources Development Canada to set aside a decision of an Umpire, dated April 4, 2003, to allow Omar Valladolid's appeal from a Board of Referees. The Board had dismissed Mr. Valladolid's appeal from the Commission's decision that he was not eligible for employment insurance benefits because he had voluntarily quit his employment without just cause.
[2] Mr. Valladolid requested that a tape recording be made of the proceedings before the Board of Referees, and it was. However, when he sought to appeal the Board's decision he was informed that the Commission had lost the tape. The Umpire held that, in these circumstances, the absence of a tape from which a transcript could be made constituted a breach of the duty of fairness. He allowed the appeal and declined to send the matter back to the Board of Referees because Mr. Valladolid should not have to bear the extra expense of a new hearing as a result of the Commission's failure to provide adequate support services for the Board.
[3] We are all of the opinion that the application for judicial review must be allowed. Absent a statutory duty to record an administrative proceeding - and none exists here - the failure to produce a tape recording or a transcript of a hearing does not in itself constitute a breach of the duty of fairness. In order to establish a breach of the duty of fairness, a person must show that the absence of the tape or transcript effectively denied the person a right of appeal or judicial review by preventing the reviewing body from discharging its statutory function: Canadian Union of Public Employees, Local 301 v. Montreal (City), [1997] 1 S.C.R. 793; Donnelly v. Canada (Attorney General) (2000), 261 N.R. 388 at para. 10 (F.C.A.). The fact that a recording was made at Mr. Valladolid's request might have made it easier in principle for him to establish that he was prejudiced by the absence of a tape.
[4] The Umpire erred in law by failing to consider whether, despite the absence of the tape, the written record before him was sufficient to enable him fairly to determine to appeal. In our view, there was ample material before the Umpire to enable him to decide the appeal without prejudice to Mr. Valladolid. Mr. Valladolid had provided a full summary of the evidence given at the hearing in his Notice of Appeal from the Board of Referees and, to the extent that his appeal was based on a medical condition that prevented him from performing new duties for his employer, there appear to have been no significant issues of fact in dispute.
[5] For these reasons, the application for judicial review will be allowed, the decision of the Umpire will be set aside, and the matter remitted to the Chief Umpire or his delegate to determine the matters at issue in the appeal, on the basis that Mr. Valladolid has not been prejudiced by the absence of the tape recording and no breach of the duty of fairness has thereby occurred. Costs will be awarded to Mr. Valladolid and fixed at the amount of $1500. including disbursements.
"John M. Evans"
J.A.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: A-238-03
STYLE OF CAUSE: THE ATTORNEY GENERAL OF CANADA
Applicant
and
OMAR VALLADOLID
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MARCH 31, 2004
REASONS FOR JUDGMENT
OF THE COURT BY: (DECARY, EVANS, PELLETIER JJ.A.)
APPEARANCES BY:
Massimo Rovazzi For the Applicant
Sharon McGovern For the Respondent
SOLICITORS OF RECORD:
Massimo Rovazzi
Reino Conte LLB
Woodbridge, Ontario For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada For the Respondent
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