Date: 20081016
Docket: A-232-08
Citation: 2008 FCA
307
CORAM: LÉTOURNEAU J.A.
SHARLOW J.A.
PELLETIER J.A.
BETWEEN:
ATTORNEY
GENERAL OF CANADA
Applicant
and
PETER
KOKAVEC
Respondent
Heard at Toronto, Ontario, on October
14, 2008.
Judgment delivered at Toronto,
Ontario, on October
16, 2008.
REASONS FOR JUDGMENT BY:
LÉTOURNEAU J.A.
CONCURRED
IN BY:
SHARLOW J.A.
PELLETIER J.A.
Date: 20081016
Docket: A-232-08
Citation: 2008 FCA 307
CORAM: LÉTOURNEAU
J.A.
SHARLOW
J.A.
PELLETIER
J.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
and
PETER KOKAVEC
Respondent
REASONS FOR JUDGMENT
LÉTOURNEAU J.A.
[1]
The
Attorney General of Canada seeks a judicial review of a decision rendered by an
Umpire (CUB 70204) pursuant to section 115 of the Employment Insurance Act,
S.C. 1996, c. 23 (Act).
[2]
The Umpire
set aside a decision of a Board of referees made pursuant to subsection 10(5)
and 50(1) and (4) of the Act and subsection 26(1) of the Employment
Insurance Regulations, SOR/96-332 (Regulations).
[3]
In a
nutshell, these provisions require a claimant to act diligently in making a
claim for unemployment benefits. According to subsection 26(1) of the
Regulations, a claim for benefits for a given week of unemployment in a benefit
period must be made within three weeks after the week for which benefits are
claimed.
[4]
However,
under subsection 10(5) of the Act, late claims, i.e. claims made after the
period prescribed by subsection 26(1) of the Regulations, can be antedated if
the claimant shows that there was good cause for the delay in making the
claims.
[5]
In the
present instance, the Board found the respondent to be credible and acting in
good faith. It acknowledged that he was confused about the process: see the
decision of the Board in the applicant’s record, at pages 51 and 52.
[6]
While
empathizing with the respondent, the Board concluded as a fact that he did not
follow up on his responsibilities and did not behave as a reasonably prudent
person would have behaved in the circumstances. It, therefore, concluded that
the respondent did not show good cause for his delay in claiming unemployment
benefits.
[7]
Pursuant
to paragraph 115(2)(c) of the Act, the Umpire could only intervene if
the Board “based its decision or order on an erroneous finding of fact that it
made in a perverse or capricious manner or without regard for the material
before it”.
[8]
After a
careful review of the material before us, I am satisfied that it was open to
the Board, on the basis of the record and the evidence before it, to make the
finding of fact that it did. The Umpire could not, without committing an error
of law, substitute his view of the facts for that of the Board.
[9]
Undoubtedly,
the respondent’s case is a sympathetic one, but we are bound to apply the law
as established by the Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9 (Q.L.), at
paragraphs 43 to 64.
[10]
For these
reasons, I would allow the application for judicial review without costs, set
aside the decision of the Umpire and refer the matter back to the Chief Umpire,
or a person that he designates, for a new determination on the basis that the
respondent’s appeal from the Board of referees’ decision be dismissed.
“Gilles
Létourneau”
“I
agree
K.
Sharlow J.A”
“I
agree
J.D.
Denis Pelletier J.A.”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-232-08
AN APPLICATION FOR JUDICIAL REVIEW
STYLE OF CAUSE: ATTORNEY
GENERAL OF CANADA v.
PETER KOKAVEC
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: October 14, 2008
REASONS FOR JUDGMENT BY: LÉTOURNEAU J.A.
CONCURRED IN BY: SHARLOW J.A.
PELLETIER J.A.
DATED: October 16, 2008
APPEARANCES:
|
Derek Edwards
|
FOR
THE APPLICANT
|
|
Peter Kokavec
|
FOR
THE RESPONDENT
(Self
Represented)
|
SOLICITORS OF RECORD:
|
John H. Sims, Q.C.
Deputy
Attorney General of Canada
|
FOR
THE APPLICANT
|
|
|
|
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