Date: 20091216
Docket: T-236-09
Citation: 2009
FC 1282
Ottawa, Ontario,
December 16, 2009
PRESENT: The Honourable Madam Justice Simpson
BETWEEN:
OLYMPIA
TILE INTERNATIONAL INC.
Applicant
and
TANIA BENT and
THE ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1]
This
matter began with Tania Bent’s claim for employment insurance benefits (the
Claim). The Employment Insurance Commission allowed the Claim and the Claim was
upheld by a majority of the Board of Referees (the Board) after a three-day
hearing (the Hearing).
[2]
Ms.
Bent’s employer, Olympia Tile International Inc. (Olympia), appealed
the Board’s decision to the Umpire (the Appeal).
[3]
During
his consideration of the Appeal, the Umpire reviewed the transcripts of the
Hearing. The transcripts he reviewed will be described as the Umpire’s
Transcripts. Following the review, he sent the Claim back to the Board for
reconsideration with a direction that the reconsideration be conducted using transcripts
(the Direction). The Board endeavoured to follow the Direction, but found
itself unable to do so because the transcripts it reviewed were incomplete (the
Board’s Transcripts). The Board found that the Board’s Transcripts were missing
critical parts of the evidence of two important witnesses, Mr. Rosenberg and
Ms. Sillers.
[4]
The
Board therefore issued a decision dated January 22, 2009 indicating
that, contrary to the Direction, it would reconsider the Claim by way of a
hearing de novo (the Decision).
THIS
APPLICATION
[5]
This
application is for Judicial Review of the Decision on the basis that the Board
declined to exercise jurisdiction when it refused to follow the Direction.
THE MOTION
[6]
The
Crown moves to strike the Notice of Application for Judicial Review on
the grounds that instead of bringing this application, Olympia should have
appealed the Decision to an Umpire under the statutory appeal process provided
by the Employment Insurance Act, S.C. 1996, c. 23 (the Act). The Crown
acknowledges that this Court has jurisdiction to entertain this application in
unusual circumstances but says that none are present in this case.
THE UMPIRE’S
DIRECTION
[7]
In
his decision, the Umpire said that he had considered the Umpire’s Transcripts
and concluded that they were sufficient to allow the Board to reach a decision.
The Umpire therefore decided: that a hearing de novo was not necessary,
that the Board should decide the Claim using transcripts, that the parties
could make representations and that, while the Board could receive new
evidence, it should only do so with good cause.
DISCUSSION
[8]
On
the face of the Decision, the Board appears to have declined jurisdiction. It
did not follow the Direction even though the Umpire had concluded that the
reconsideration could be conducted using transcripts. However, the Board’s
Decision appears justified, because the Board’s Transcripts are clearly
incomplete. It is possible that the Umpire’s Transcripts and the Board’s
Transcripts are not the same.
[9]
Instead
of appealing the Decision to another Umpire, the Applicant brought this
application for Judicial Review. I am mindful of Mr. Justice Andrew Mackay’s
decision in Gemby v. Canada (Human Resources) (1999), 174 F.T.R.
117, in which he noted at paragraph 14 that, in unusual circumstances, an
application for Judicial Review can be heard in spite of the statutory appeal
process in the Act. Due
to the possibility that there are two different transcripts of the Hearing, I
have been persuaded to entertain this application.
[10]
Accordingly,
in consultation with counsel for both parties and having reviewed their letters
of December 3, 2009, I make the following order:
ORDER
THIS COURT ORDERS that:
1. The
motion to strike the Notice of Application for Judicial Review is dismissed;
2. The
application for Judicial Review is allowed, the Decision is set aside, and the
Board
is to attempt to reconsider the Claim on an expedited basis using the Umpire’s Transcripts;
3. The
Office of the Umpire is to send the Umpire’s Transcripts to the Board;
4.
If, on review, the Board finds that the Umpire’s Transcripts do not
include sufficient evidence from Ms. Sillers and Mr. Rosenberg to allow it to
decide the Claim, the Board may hear de novo evidence from only those
two witnesses and the Umpire’s Transcripts may be used to impeach them during
their cross-examinations;
5.
If the Board considers it necessary to hear from Ms. Sillers or Mr.
Rosenberg de novo and they do not appear before the Board, the Board may
rely on their evidence in the Umpire’s Transcripts if the Board thinks it fair
to do so;
6.
The Board may receive agreed statements of facts and submissions from
the parties;
7.
The Board may hear new evidence, but should be reluctant to do so;
8.
No order is made as to costs.
Sandra J. Simpson
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