Canada (Attorney General) v. Didiodato, 2002 FCA 345

                                                                           Date: 20020924

Docket: A-354-01

Neutral citation: 2002 FCA 345

CORAM:        ROTHSTEIN J.A.

EVANS J.A.

MALONE J.A.

BETWEEN:

                                               THE ATTORNEY GENERAL OF CANADA

Applicant

- and -

KIRSTEN DIDIODATO

Respondent

Heard at Toronto, Ontario, on Tuesday, September 24, 2002.

Judgment delivered from the Bench at Toronto, Ontario, on Tuesday, September 24, 2002.

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

Date: 20020924

Docket: A-354-01

Neutral citation: 2002 FCA 345

CORAM:        ROTHSTEIN J.A.

EVANS J.A.

MALONE J.A.

BETWEEN:   

THE ATTORNEY GENERAL OF CANADA

Applicant

- and -

KIRSTEN DIDIODATO

Respondent

REASONS FOR JUDGMENT OF THE COURT

(Delivered from the Bench at Toronto,

Ontario, on Tuesday, September 24, 2002)

EVANS J.A.

[1]                 This is an application for judicial review of a decision of an Umpire (CUB 5136) upholding a decision of the Board of Referees to deem Karen Didiodato to have the minimum number of hours of insurable employment prior to February 20, 2000, to qualify her for the receipt of employment insurance benefits. The Board reversed the Commission's refusal of the claim on the ground that the claimant had insufficient hours.

[2]                 A question that arises in the course of a claim concerning a claimant's number of hours of insurable employment must be determined by an authorized officer of the Canada Customs and Revenue Agency: Employment Insurance Act, S.C. 1996, c. 23, paragraph 90(1)(d) and section 122. Neither the Board of Referees, nor an Umpire, has jurisdiction to determine this question: Canada (Attorney General) v. Haberman, [2000] F.C.J. No. 1215; Canada (Attorney General) v. Thiara (2001), 288 N.R. 12 (F.C.A.). The Board and the Umpire therefore exceeded their jurisdiction in this case when they determined Ms. Didiodato's number of hours of insurable employment.

[3]                 For these reasons, the application for judicial review will be allowed, the decisions of the Umpire and the Board of Referees will be set aside, and the matter will be remitted to the Chief Umpire so that he may order the Commission to request an officer authorized by the Canada Customs and Revenue Agency to determine Ms. Didiodato's hours of insurable employment in the period relevant to her claim.

"John M. Evans"                

J.A.                          

                                                                                          FEDERAL COURT OF CANADA

                                             Names of Counsel and Solicitors of Record

DOCKET:                                              A-354-01

STYLE OF CAUSE:                               THE ATTORNEY GENERAL OF CANADA                                

Applicant

- and -                          

KIRSTEN DIDIODATO

Respondent

DATE OF HEARING:         TUESDAY, SEPTEMBER 24, 2002

PLACE OF HEARING:        TORONTO, ONTARIO

REASONS FOR JUDGMENT

OF THE COURT BY:         EVANS, J.A.

DELIVERED FROM THE BENCH AT TORONTO, ONTARIO ON TUESDAY, SEPTEMBER 24, 2002.

DATED:                    TUESDAY, SEPTEMBER 24, 2002

APPEARANCES BY:                          Mr. Derek Edwards

For the Applicant

No Appearance

For the Respondent

SOLICITORS OF RECORD:           Morris Rosenburg

Deputy Attorney General of Canada

For the Applicant

Kirsten Didiodato

201 - 400 York Boulevard

Hamilton, Ontario

L8R 3M5

For the Respondent

FEDERAL COURT OF APPEAL

Date: 20020924

Docket: A-354-01

BETWEEN:

THE ATTORNEY GENERAL OF CANADA

Applicant

- and -

KIRSTEN DIDIODATO

Respondent

REASONS FOR JUDGMENT

OF THE COURT