Docket: A-430-16
Citation:
2018 FCA 21
|
CORAM:
|
RENNIE J.A.
GLEASON J.A.
LASKIN J.A.
|
|
BETWEEN:
|
|
ASMA QUADIR
|
|
Applicant
|
|
and
|
|
THE ATTORNEY
GENERAL OF CANADA
|
|
Respondent
|
REASONS
FOR JUDGMENT
RENNIE J.A.
[1]
This is an application for judicial review of
the decision dated October 19, 2016 of the Social Security Tribunal – Appeal
Division (2016 SSTADEI 514).
[2]
The applicant had applied for employment
insurance benefits under the Employment Insurance Act, S.C. 1996, c. 23.
The Canada Employment Insurance Commission denied her application because she
did not meet the requirement in subsection 10(4) of “good
cause” in order to antedate her claim, without which she had
insufficient hours of insured employment to qualify. The applicant appealed to
the Social Security Tribunal – General Division. The tribunal allowed her appeal
and antedated her claim. On appeal by the Attorney General, the Social Security
Tribunal – Appeal Division reinstated the Commission’s decision.
[3]
The relevant facts are set forth in detail in
the decision of the General Division and need not be repeated save to note that
during the qualifying period of time in question the applicant was a resident
physician with Alberta Health Services. Her residency ended on October 22,
2013. She did not apply for employment insurance benefits until August 29,
2014, some ten months later. She requested that her claim be antedated to November
1, 2013.
[4]
Applying the principles expressed by this Court
in Canada (Attorney General) v. Burke, 2012 FCA 139, 434 N.R. 34 (Burke),
the General Division allowed the applicant’s appeal on the basis that she acted
as a reasonable and prudent person would have in the circumstances and,
consequently, showed good cause for delay (at paras. 34–38). The General
Division antedated her claim to November 1, 2013 with the result that the
applicant had accumulated sufficient hours within the qualifying period (at para.
40).
[5]
The Appeal Division allowed the respondent’s
appeal, finding that the General Division erred by applying the wrong legal
test. Citing the decision of this Court in Canada (Attorney General) v.
Kaler, 2011 FCA 266 (Kaler). The Appeal Division stated the test as
absent exceptional circumstances, an applicant must take “‘reasonably prompt steps’ to determine entitlement to
benefits and to ensure [their] rights and obligations” and that “[t]his obligation imports a duty of care that is both
demanding and strict” (at para. 11). The Appeal Division allowed the
appeal from the General Division and restored the decision of the Commission.
In so doing, it erred.
[6]
The jurisdiction of the Appeal Division is set
forth in paragraphs 58(1)(a) to (c) of the Department of
Employment and Social Development Act (S.C. 2005, c. 34). It reads:
|
Grounds of
appeal
|
Moyens
d’appel
|
|
58 (1) The only grounds of appeal are that
|
58 (1) Les seuls moyens d’appel sont les
suivants :
|
|
(a) the General Division failed to observe a principle of natural
justice or otherwise acted beyond or refused to exercise its jurisdiction;
|
a) la division générale n’a pas observé un
principe de justice naturelle ou a autrement excédé ou refusé d’exercer sa
compétence;
|
|
(b) the General Division erred in law in making its decision, whether
or not the error appears on the face of the record; or
|
b) elle a rendu une décision entachée d’une
erreur de droit, que l’erreur ressorte ou non à la lecture du dossier;
|
|
(c) the General Division based its decision on an erroneous finding
of fact that it made in a perverse or capricious manner or without regard for
the material before it.
|
c) elle a fondé sa décision sur une
conclusion de fait erronée, tirée de façon abusive ou arbitraire ou sans
tenir compte des éléments portés à sa connaissance.
|
[7]
None of the criteria set forth in paragraphs
58(1)(a) to (c) which would warrant the intervention of the
Appeal Division were met in this case. While counsel for the Attorney General
contends that the General Division made an error in law in not applying the
binding jurisprudence of this Court, I am not satisfied that the reasons of the
Appeal Division rest on anything more than a disagreement as to the application
of settled law to the facts.
[8]
The Appeal Division did not identify the nature
of the legal error made by the General Division. The tests in Burke and Kaler
are identical. The question is what a reasonable person would have done “in her circumstances”. Indeed, the reasons
demonstrate that the Appeal Division simply disagreed with the conclusion that the
General Division reached as to whether the measures taken by the applicant were
“in the circumstances” reasonable.
[9]
The application of settled principles to the
facts is a question of mixed fact and law, and is not an error of law. In the
result, the Appeal Division had no jurisdiction to interfere with the General
Division decision. The standard of review applicable to consideration of
decisions of the Appeal Division by this Court is reasonableness: Kamgar v.
Canada (Attorney General), 2013 FCA 157, 446 N.R. 337. The decision of the
Appeal Division to intervene on a question of mixed fact and law was, in light
of its jurisdiction, unreasonable.
[10]
The appeal succeeds on a second ground as well.
[11]
The Appeal Division found that the applicant’s
actions “were entirely reasonable given her
circumstances” but nevertheless allowed the appeal on the basis that the
applicant did not take “reasonably prompt steps”
to determine her entitlement to benefits.
[12]
The applicant’s conduct cannot be both entirely
reasonable under the circumstances and at the same time be unreasonable. The
Appeal Division superimposed a further obligation, above and beyond the
requirement of what a reasonable person would have done in similar
circumstances. As noted by this Court in Rodger v. Canada (Attorney General),
2013 FCA 222, 449 N.R. 295, ignorance of the law does not constitute good cause
unless an individual can show that what they did was reasonable under the
circumstances. Having found the applicant’s conduct to be reasonable, it was
not open to the Appeal Division to find it unreasonable when assessed against
some further or higher obligation to take additional steps. The test is one of
reasonability, informed by the applicant’s subjective appreciation of the
circumstances, assessed on an objective standard.
[13]
The assessment of the reasonableness of an
applicant’s conduct is objective, situated in the particular facts of the case.
Here, those facts, as found by the General Division, included that while a
resident, the applicant was technically a student, and attended academic
sessions during her training period. The objective assessment also included the
fact that she did not receive a record of employment after her residency, which
would have prompted her to submit a benefits application.
[14]
It was not open to the Appeal Division, in light
of the limitation on its jurisdiction and in the absence of the existence of an
error of law, breach of natural justice or capricious findings of fact, to
reach a different result on the same facts as found by the General Division.
[15]
I would allow the application and set aside the
decision of the Appeal Division.
“Donald J. Rennie”
|
“I agree
|
|
Mary J.L. Gleason J.A.”
|
|
“I agree
|
|
J.B. Laskin
J.A.”
|
Email this Content