Date: 20120627
Docket: A-365-11
Citation: 2012 FCA 196
CORAM: GAUTHIER
J.A.
TRUDEL J.A.
MAINVILLE
J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
ALEXANDER JESSO
Respondent
REASONS FOR JUDGMENT
MAINVILLE J.A.
[1]
The
applicant has brought a judicial review application challenging a decision of
Umpire Goulard made under the Employment Insurance Act, S.C. 1996, c.
23, and cited as CUB 77518. The appellant now brings to this Court a
pre-hearing motion seeking an order allowing the application on consent of the
parties.
[2]
As decided
in Canada (Attorney General) v. Goulet, 2012 FCA 62, this Court
cannot set aside the decision of an umpire on the mere consent of the parties
to the proceedings. In order to obtain such a judgment, the motion record must
set out the facts and the legal grounds that support the application.
[3]
The
principles which apply in such circumstances are set out in Canada (Attorney General) v. Goulet, and they may be described as
follows:
a.
Although
Rule 349 of the Federal Courts Rules, SOR/98-106 (the “Rules”) allows
for the reversal or variation of an order appealed from on the consent of the
parties if the resultant judgment is one that could have been given on consent,
that Rule appears in Part 6 of the Rules concerning appeals. No similar provision
is found in Part 5 of the Rules concerning applications.
b.
Under
section 118 of the Employment Insurance Act, a decision by an umpire on
appeal is final and is not subject to appeal or to review, except for judicial
review under section 28 of the Federal Courts Act, R.S.C. 1985, c. F-7.
An umpire’s decision cannot therefore be set aside on the mere consent of the
parties since this would be contrary to Parliament’s intention and to the
principle of finality and stability of administrative decisions. A formal
judicial intervention is thus required for this purpose.
c.
Under Rule
55, the Court may, in special circumstances, summarily grant a judicial review
application on joint motion of the parties where the parties can demonstrate an
error on the part of the umpire which justifies such a conclusion.
d.
However,
for the purposes of such a summary judicial review proceeding, the Court is not
bound by any consent of the parties with regard either to the judgment to be
rendered or the applicable legal principles. Moreover, the reasons set out in a
resulting judgment cannot bind the Court in subsequent proceedings, since that
judgment is reached on an incomplete record and without the benefit of a
counter-argument.
[4]
Consequently,
in this case, Justice Gauthier J.A. issued a directive to the parties on May 4,
2012 seeking explanations as to how the umpire erred in law or in principle in
his decision and the legal basis on which this Court would be justified to
quash his decision. Such explanations were provided on May 18, 2012.
[5]
On the
basis of the explanations provided, and after carefully reviewing the motion
record and the umpire’s decision, I am of the view that the judicial review
application should be granted and the umpire’s decision should be set aside.
[6]
The facts
of this case are simple. The respondent, Mr. Jesso, received from the Canada
Employment Insurance Commission (the “Commission”) three notices of violation
dated respectively May 23, 2006, November 18, 2008 and February 22, 2010. The
respondent did not challenge any of these notices. As a result, the number of
minimum hours required from the respondent to qualify for benefits under the Employment
Insurance Act was increased to 910 hours.
[7]
When the
respondent made a claim for benefits in February 2010 with only 600 qualifying
hours, his claim was consequently refused by the Commission on the basis that
he had not accumulated sufficient hours in order to qualify for benefits. The
respondent appealed to a Board of Referees, which upheld the Commission’s decision.
However, the Board of Referees recommended that the Commission reconsider the
notices of violation in light of special circumstances.
[8]
The
respondent appealed to the umpire, who granted the appeal by setting aside the
notices of violation and consequently waiving the penalty of increased
qualifying hours. The umpire erred in so finding, since the notices of
violations had not been appealed in a timely fashion and could not therefore be
set aside by either the Board of Referees or the umpire. In deciding as he did,
the umpire acted without jurisdiction and disregarded the rules of procedural
fairness.
[9]
I would
therefore (a) pursuant to Rule 55, exempt the parties with compliance with
Rules 306 to 316, (b) allow the application for judicial review, (c) set aside
the umpire’s decision, and (d) refer the matter back to the Chief Umpire, or
his or her designate, for a new determination with a direction to dismiss the
appeal from the Board of Referees. There should be no order as to costs.
"Robert
M. Mainville"
“I
agree.
Johanne
Gauthier J.A.”
“I
agree.
Johanne
Trudel J.A.”
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