Date: 20021004
Docket: A-486-01
Neutral citation: 2002 FCA 360
CORAM: DÉCARY J.A.
LINDEN J.A.
LÉTOURNEAU J.A.
BETWEEN:
ANABELLE PAXTON
Applicant
and
ATTORNEY GENERAL
OF CANADA
Respondent
Heard at Vancouver, British Columbia, on October 2, 2002.
Judgment delivered at Vancouver, British Columbia, on October 4, 2002.
REASONS FOR JUDGMENT BY: LÉTOURNEAU J.A.
CONCURRED IN BY: DÉCARY J.A.
LINDEN J.A.
Date: 20021004
Docket: A-486-01
Neutral citation: 2002 FCA 360
CORAM: DÉCARY J.A.
LINDEN J.A.
LÉTOURNEAU J.A.
BETWEEN:
ANABELLE PAXTON
Applicant
and
ATTORNEY GENERAL
OF CANADA
Respondent
REASONS FOR JUDGMENT
LÉTOURNEAU J.A.
[1] The applicant seeks judicial review of a decision of an Umpire who dismissed her appeal from a decision of a Board of Referees ("Board") under the Employment Insurance Act S.C. 1996, c. 23 ("Act").
[2] The Board, in a decision rendered on February 14, 2000, found that the applicant was not available for work pursuant to s. 18 of the Act as she was attending school full-time. In addition, relying upon subsection 25(2) of the Act, it decided that it had no jurisdiction to determine if a claimant was "sponsorable", that is to say could attend courses with the authorization of the Commission and, at the same time, receive employment benefits. Section 25 reads:
| 25(2) A decision of the Commission about the referral of a claimant to a course, program or other employment activity mentioned in subsection (1) is not subject to appeal under section 114 or 115.
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25(2) Aucune décision de diriger ou de ne pas diriger un prestataire vers un cours, un programme ou quelque autre activité visés au paragraphe (1) n'est susceptible d'appel au titre des articles 114 ou 115.
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[3] The applicant argued before the Umpire that notwithstanding her enrollment in school, she was available for work. She reiterated that she was eligible for sponsorship and should have been accepted. She contended, as she does in the present application, that the Commission erred in the exercise of its power under subsection 50(10) of the Act to waive the conditions and requirements which, it seems, she understands to include the basic requirements of admissibility to the benefits: see Applicant's Record, p. 184.
[4] We reproduce the whole of s. 50 for a better understanding of its limited scope. The section is found in the Act under the heading Claim Procedure:
| 50(1) A claimant who fails to fulfil or comply with a condition or requirement under this section is not entitled to receive benefits for as long as the condition or requirement is not fulfilled or complied with.
(2) A claim for benefits shall be made in the manner directed at the office of the Commission that serves the area in which the claimant resides, or at such other place as is prescribed or directed by the Commission.
(3) A claim for benefits shall be made by completing a form supplied or approved by the Commission, in the manner set out in instructions of the Commission.
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50(1) Tout prestataire qui ne remplit pas une condition ou ne satisfait pas à une exigence prévue par le présent article n'est pas admissible au bénéfice des prestations tant qu'il n'a pas rempli cette condition ou satisfait à cette exigence.
(2) Toute demande de prestations est présentée de la manière ordonnée au bureau de la Commission qui dessert le territoire où réside le prestataire ou à tout autre endroit prévu par règlement ou ordonné par la Commission.
(3) Toute demande de prestations est présentée sur un formulaire fourni ou approuvé par la Commission et rempli conformément aux instructions de celle-ci.
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(4) A claim for benefits for a week of unemployment in a benefit period shall be made within the prescribed time.
(5) The Commission may at any time require a claimant to provide additional information about their claim for benefits.
(6) The Commission may require a claimant or group or class of claimants to be at a suitable place at a suitable time in order to make a claim for benefits in person or provide additional information about a claim.
(7) For the purpose of proving that a claimant is available for work, the Commission may require the claimant to register for employment at an agency administered by the Government of Canada or a provincial government and to report to the agency at such reasonable times as the Commission or agency directs.
(8) For the purpose of proving that a claimant is available for work and unable to obtain suitable employment, the Commission may require the claimant to prove that the claimant is making reasonable and customary efforts to obtain suitable employment.
(9) A claimant shall provide the mailing address of their normal place of residence, unless otherwise permitted by the Commission.
(10) The Commission may waive or vary any of the conditions and requirements of this section or the regulations whenever in its opinion the circumstances warrant the waiver or variation for the benefit of a claimant or a class or group of claimants.
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(4) Toute demande de prestations pour une semaine de chômage comprise dans une période de prestations est présentée dans le délai prévu par règlement.
(5) La Commission peut exiger d'autres renseignements du prestataire relativement à toute demande de prestations.
(6) La Commission peut demander à tout prestataire ou à tout groupe ou catégorie de prestataires de se rendre à une heure raisonnable à un endroit convenable pour présenter en personne une demande de prestations ou fournir des renseignements exigés en vertu du paragraphe (5).
(7) Pour obtenir d'un prestataire la preuve de sa disponibilité pour le travail, la Commission peut exiger qu'il s'inscrive comme demandeur d'emploi à un organisme de placement fédéral ou provincial et qu'il communique avec cet organisme à des moments raisonnables que la Commission ou l'organisme lui fixera.
(8) Pour obtenir d'un prestataire la preuve de sa disponibilité pour le travail et de son incapacité d'obtenir un emploi convenable, la Commission peut exiger qu'il prouve qu'il fait des démarches habituelles et raisonnables pour trouver un emploi convenable.
(9) Tout prestataire est tenu, sauf autorisation contraire de la Commission, de fournir l'adresse postale de sa résidence habituelle.
(10) La Commission peut suspendre ou modifier les conditions ou exigences du présent article ou des règlements chaque fois que, à son avis, les circonstances le justifient pour le bien du prestataire ou un groupe ou une catégorie de prestataires.
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[5] The decision of the Umpire on appeal is not very satisfactory. The Umpire described the decision of the Board as regards its finding that the applicant was not available for work, but never ruled on that finding. Yet this was the crux of the matter. He then proceeded to assess the applicant's claim based on subsection 50(10) to finally dismiss it on the ground that the subsection has no application because no appeal is allowed under subsection 25(2) of the Act against a decision of the Commission about the referral of a claimant to a course. He then dismissed the appeal because he thought he had no authority to interfere with the decision of the Commission.
[6] The key issue in dispute was the availability of the applicant for work. Although the Umpire did not deal with the issue, we can assume that he agreed with the Board's finding as he went on to discuss the issue of sponsorship. This would have made little sense if he had been of the view that the applicant was available for work. In any event, we are satisfied, as this Court was in Attorney General of Canada v. Floyd, A-168-93, April 27, 1994 (F.C.A.) that there was cogent evidence on the record before the Board to support the Board's finding. In both her Application for Unemployment Benefits and her Training Course Questionnaire, the applicant indicated that she was not ready to work and not going to be looking for work during the course: see Respondent's Record, pp. 13 and 14. This is sufficient to dispose of the present application.
[7] We would add that if the Umpire was right in his conclusion that there is no appeal of a decision of the Commission about sponsorship of a claimant, he was mistaken when he ruled that the possibility of a waiver under subsection 50(10) had no application to the issue before him because subsection 25(2) of the Act provides no right of appeal.
[8] Subsections 25(2) and 50(10) serve two different purposes. Subsection 25(2) only excludes appeal rights when a course referral issue has been determined by the Commission; it does not exclude an applicant's appeal rights on the issue of waiver. Therefore, the possibility of a waiver of the administrative requirements mentioned in section 50 is not ousted by subsection 25(2).
[9] In Canada v. Dunham, [1997] 1 F.C. 462 (F.C.A.), this Court found that the Board and the Umpire had jurisdiction to exercise themselves the discretion granted to the Commission under subsection 50(10), (formerly subsections 41(10) and 55(10) of the Unemployment Insurance Act, 1971, S.C. 1970-71-72, c. 48 as subsequently amended). However, this option given to the Board and Umpire is "a parallel option to the option of referring the matter back to the body that was initially empowered to decide it for a new decision": see at p. 470. The Court went on to add that the decision should be made by the body that is best able to make it. In the Court's view, the Commission was that body as the requirements mentioned in section 50 related to the procedure to be followed when making a claim for benefits, were purely administrative and were designed strictly for the purposes of the Commission's own administration.
[10] Indeed, in the present instance, the issue of waiver pursuant to subsection 50(10) was first raised by the applicant on the occasion of her first appearance before the Board. In its first decision dated January 5, 2000, the Board considered the submission made by counsel for the applicant and, as a result, sent the matter back to the Commission for re-examination: see Respondent's Record, p. 61.
[11] The Commission reviewed the applicant's file and specifically her claim pursuant to subsection 50(10). On January 10, 2000, it dismissed the applicant's argument in the following terms (see Respondent's Record, p. 62):
The claimant's argument with respect to Section 50 of the Act must also fail. This Section sets out various administrative provisions relating to the filing and maintaining of claims for benefits. Subsection 50(10) is discretionary and gives the Commission authority to vary the requirements set out in Section 50. It cannot be used to waive the provisions of any other Section of the Act. Indeed, the Commission has no need to refer to subsection 50(10) in this case since it has sole authority to settle the question under Section 25.
[12] We see no error in this Commission's finding and, consequently, no need to send the matter back to the Umpire for a determination of the applicant's claim under subsection 50(10).
[13] The applicant appeared in person before us and made able submissions. We can understand her frustration towards the Employment Insurance system. She claims in her affidavit that she received conflicting instructions from employees of the Employment Insurance Office and the Training Access Centre under the control of Human Resources Development Canada with respect to the proper timing of her application for sponsorship. According to her uncontradicted evidence, she made an application early in April, as she knew she would be laid off at the end of the summer, only to be told that she could not apply for training before she had started receiving employment benefits. When she brought anew her application at the end of August, she was this time informed that she should have done so 3 to 4 weeks before the start date of school because such a period of time was required for processing and approval of demands. It appears that her initial diligence was greeted with a "too soon - too late" welcome.
[14] The applicant also complains that she sought guidance from Employment Insurance employees in filling out her application for unemployment benefits as she was not familiar with the process. As it turned out, she said, her answers, given with the assistance of employees, to the questions relating to her availability for work contained in her Application for Unemployment Benefits and Training Course Questionnaire are now being used against her.
[15] However, having said that, one fact remains: she was not available for work since she had decided to complete her training on a full-time basis, with or without sponsorship. Having failed to be approved for sponsorship, she unfortunately did not meet the requirements of section 18 of the Act.
[16] For these reasons, the application for judicial review will be dismissed, but without costs in the circumstances.
(Sgd.) "Gilles Létourneau"
J.A.
"I agree
Robert Décary J.A."
"I agree
A.M. Linden J.A."
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-486-01
STYLE OF CAUSE: Anabelle Paxton v. The Attorney General of Canada
PLACE OF HEARING: Vancouver, B.C.
DATE OF HEARING: October 2, 2002
REASONS FOR JUDGMENT: LÉTOURNEAU J.A.
CONCURRED IN BY: DÉCARY J.A.
LINDEN J.A.
DATED: October 4, 2002
APPEARANCES:
Ms. Anabelle Paxton FOR THE APPLICANT
Mr. Edward Burnet FOR THE RESPONDENT
SOLICITORS OF RECORD:
Ms. Anabelle Paxton
(Appearing on her own behalf) FOR THE APPLICANT
Mr. Morris Rosenburg
Deputy Attorney General of Canada FOR THE RESPONDENT
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