A-445-95
CORAM: MARCEAU
J.A.
ROBERTSON J.A.
McDONALD J.A.
BETWEEN:
THE
ATTORNEY GENERAL OF CANADA
APPLICANT
AND:
RICK
KNOWLER
RESPONDENT
Heard at
Vancouver, British Columbia, on Thursday, February 8, 1996.
Judgment
rendered from the Bench on Thursday, February 8, 1996.
REASONS FOR
JUDGMENT OF THE COURT BY: MARCEAU J.A.
A-445-95
CORAM: MARCEAU
J.A.
ROBERTSON J.A.
McDONALD J.A.
BETWEEN:
THE
ATTORNEY GENERAL OF CANADA
APPLICANT
AND:
RICK
KNOWLER
RESPONDENT
REASONS
FOR JUDGMENT OF THE COURT
(Delivered
from the Bench at Vancouver, British Columbia,
on
Thursday, February 8, 1996)
MARCEAU
J.A.
This application for judicial review is well founded.
The impugned decision is the second one on the same
matter as it was rendered on a referral back to the umpire by this Court. An
umpire had allowed an appeal from a decision of a Board of Referees, whereby
the Board had declined to intervene in the exercise by the Commission of its
discretionary power to refuse the extension of time claimed by the respondent
under section 82 of the Unemployment Insurance Act, R.S.C. 1985, c.
U-1. Reviewing the decision, the Court found that the umpire had erred in
allowing the appeal and granting the extension in the absence of any indication
that the Commission had initially exercised its discretion in a
"non-judicial" manner, that is, on the basis of irrelevant
considerations or without taking relevant considerations into account. The
Court, therefore, referred the matter back to the umpire for a reconsideration
on the basis that the first question to be answered was whether there was,
before the Board or before him, any indication that the Commission had acted
unjudicially.
It appears, on reading the decision now under review,
that the instructions of the Court were misunderstood. The umpire again has
taken it upon himself to simply proceed to a new evaluation of the facts and to
grant the extension requested without first addressing the question of whether,
in the exercise of the discretionary power conferred on it by Parliament, the
Commission could be said to have acted unjudicially.
We think we should, this time, go one step further. We
have reviewed the comments of the umpire and of the Board and have analyzed the
evidence on file and we have seen nothing that could lead to the conclusion
that the Commission failed to take into account any explanation or excuse given
by the claimant-respondent for his delay in filing his appeal long after the
thirty-day limit. We consider, therefore, that, in these circumstances, the
umpire does not have jurisdiction to grant the appeal from the Board's refusal
to intervene.
The impugned decision will therefore be set aside and
the matter again referred back to the Chief Umpire for a new decision not
inconsistent with these reasons.
"Louis Marceau"
J.A.
IN THE FEDERAL COURT OF APPEAL
A-445-95
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
APPLICANT
AND:
RICK KNOWLER
RESPONDENT
REASONS FOR JUDGMENT
OF THE COURT
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