Date: 19991130 Docket: A-748-98
CORAM: STONE, J.A. ISAAC, J.A. SEXTON, J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
-and
JOHN WAKELIN
Respondent
Heard at Halifax, Nova Scotia, on Tuesday, November 30, 1999
Judgment delivered at Halifax from the Bench on Tuesday, November 30, 1999
REASONS FOR JUDGMENT BY: SEXTON, J.A.
Date: 19991130 Docket: A-748-98
CORAM: STONE, J.A. ISAAC, J.A. SEXTON, J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
-and
JOHN WAKELIN
Respondent
REASONS FOR JUDGMENT OF THE COURT
SEXTON, J.A.
[1] This is an application for judicial review of the Attorney General of Canada from a decision of an unemployment insurance umpire, who concluded that the Respondent, did not have to repay unemployment insurance benefits that the Canada Employment Insurance Commission considered were mistakenly overpaid to him.
Page: 2
[2] The Respondent's employment was terminated on April 26, 1996by Coca-Cola Bottling Ltd. and he was provided with $19,666.60 for vacation pay, severance pay and pay in lieu of notice. He then filed a claim for unemployment insurance benefits. The
Commission treated the $19,666.60 as employment income paid by Coca-Cola and postponed the Respondent's payments from unemployment insurance until October 27, 1996 by reason
of the allocation of earnings required by law. (the first Commission decision) On January 30, 1997 the Respondent was paid an additional $14,107.91 by Coca-Cola. The Respondent on February 8,-1997 advised the Commission that Coca-Cola had paid him an additional severance amount of $14,010.32. On March 5, 1997 the Commission advised the Respondent that because of the additional payment by Coca-Cola, that he was not entitled to employment insurance benefits until March 15, 1997 and therefore the Commission requested back the insurance benefits already paid in the amount of $5,782.00. (the second Commission decision)
[3] On March 21, 1997 the Respondent appealed the second decision to a Board of Referees.
[4] On April 1, 1997 Coca-Cola advised the Commission that it had paid an additional $14,107.91 to the Respondent.
[5] On June 2, 1997 the Commission advised the Respondent that it had recalculated the extent of his entitlement because of the discrepancy between what he reported as extra
Page: 3
compensation and what he was actually paid, namely $97.59. (the third Commission decision)
[6] The Board of Referees allowed the Respondent's appeal. The Commission appealed that decision to an Umpire who dismissed the appeal because the Commission had altered its decision after the Notice of Appeal had been delivered.
[7] We are of the view that this application must be allowed.
[8] The appeal before the Umpire and the Board of Referees was supposed to relate to the second decision of the Commission. However both the Board of Referees and the umpire treated the appeal as relating to the third decision of the Commission.
[9] It is true that the third decision of the Commission would be invalid because it was made subsequent to the Notice of Appeal being delivered. This Court held in Canada(AG) v. Fiderigg [1984] 1 F. C. 65 at 69 that it was too late for the Commission to exercise its authority to amend its decision once an appeal had been launched. However, there was no basis for striking down the second decision of the Commission which preceded the Notice of Appeal.
[10] Accordingly the application is allowed, the decision of the Umpire will be set aside and the matter should be referred back to the Chief Umpire or to an Umpire designated by
Page: 4
him other than the Umpire whose decision is before us, to consider the second decision of the Commission, and pursuant to Section 81 of the Unemployment Insurance Act; make the decision which should have been made by the Board of Referees.
"J.E. Sexton"
J. A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-748-98
STYLE OF CAUSE: The Attorney General of Canada v. John Wakelin
PLACE OF HEARING: Halifax, N. S.
DATE OF HEARING: November 30, 1999
REASONS FOR JUDGMENT OF THE COURT BY: Sexton, J.A.
DATED: November 30, 1999
APPEARANCES:
David Hansen for the Applicant
John Wakelin On his own behalf
SOLICITORS OF RECORD:
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, ON for the Applicant
John Wakelin
Cornwall, PE for the Respondent
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