Date: 20060901
Docket: A-64-06
Citation: 2006 FCA 292
Present: SHARLOW J.A.
BETWEEN:
ATTORNEY
GENERAL OF CANADA
Applicant
and
DARCY
LEE
Respondent
Dealt with in writing without appearance
of parties.
Order delivered at Ottawa, Ontario,
on September 1, 2006.
REASONS
FOR ORDER BY: SHARLOW
J.A.
Date: 20060901
Docket: A-64-06
Citation: 2006 FCA 292
Present: SHARLOW J.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
and
DARCY LEE
Respondent
REASONS FOR ORDER
SHARLOW J.A.
[1]
The
Attorney General of Canada is seeking judicial review of the decision of an
Umpire (CUB 65087 dated December 9, 2005) dismissing his appeal from a decision
of the Board of Referees. The dispute appears to relate to whether or not the
respondent, Ms. Lee, should be disqualified from receiving employment insurance
benefits. The position of the Crown is that Ms. Lee lost her employment as a
result of her own misconduct. The position of Ms. Lee is that she was dismissed
without cause. The Board of Referees agreed with Ms. Lee. The Umpire found no
basis for reversing that decision.
[2]
On July
14, 2006, Ms. Lee, who is representing herself, served and filed a notice of
motion under Rule 369 of the Federal Courts Rules, SOR/98-106, to seek
an extension of time to file the respondent’s record. She says that the
additional time is needed to obtain a transcription of a tape recording of the
proceedings before the Board of Referees. She also seeks leave to include the
transcript in her record.
[3]
Ms. Lee
has filed a detailed affidavit in support of her application. The Crown
apparently did not seek to cross-examine her on her affidavit. The Crown was
entitled under Rule 369(2) to file a responding motion record within 10 days
after being served with Ms. Lee’s motion record, but did not do so.
[4]
On August
8, 2006, before Ms. Lee’s motion was dealt with, the Crown filed a notice of
motion to seek an extension of time to file a responding motion record. The
only reason given is that “new research has revealed the need” for the Crown to
oppose Ms. Lee’s motion to include the transcript in her record. The Crown’s
material does not state what the new research revealed, or the grounds upon
which the Crown wishes to oppose Ms. Lee’s motion. Ms. Lee has not responded to
the Crown’s motion.
[5]
The
Crown’s explanation for requesting an extension of time is not adequate because
it discloses no basis for determining whether there is any merit in the Crown’s
intended objection to Ms. Lee’s motion. The Crown’s motion for an extension of
time will be denied. Ms. Lee’s motion will be dealt with as an unopposed
motion. Her motion for an extension of time will be granted.
[6]
For the
following reasons, Ms. Lee’s motion to include in her record the transcript of
the proceedings before the Board will also be granted. The Crown’s application
for judicial review states no specific grounds of review. The basis of the
Crown’s challenge to the Umpire’s decision requires reference to the Crown’s
application record, filed June 2, 2006. It indicates that the Crown proposes to
argue that the Umpire should have reversed the decision of the Board of
Referees because it reached an erroneous conclusion on the question of whether
Ms. Lee had lost her employment as a result of her own misconduct. The Crown
characterizes that as a question of mixed fact and law. That may well be
correct, but it seems likely that Ms. Lee is also correct when she asserts that
the factual component will be significant, and that the Crown’s application for
judicial review will require a review of the evidence that was before the Board
of Referees. I have no basis for concluding that the oral evidence presented to
the Board ought to be excluded from that review.
[7]
The
parties will bear their own costs of both motions regardless of the outcome of
the Crown’s application for judicial review.
“K.
Sharlow”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-64-06
STYLE OF CAUSE: ATTORNEY
GENERAL OF CANADA v. DARCY
LEE
MOTION DEALT WITH IN WRITING WITHOUT
APPEARANCE OF PARTIES
REASONS FOR ORDER BY: SHARLOW J.A.
DATED: SEPTEMBER 1, 2006
WRITTEN REPRESENTATIONS BY:
|
Korinda McLaine
|
FOR THE APPLICANT
|
|
Darcy Lee
|
ON HER OWN BEHALF
|
SOLICITORS OF RECORD:
|
John H. Sims, Q.C.
Deputy Attorney General of Canada
|
FOR THE APPLICANT
|
|
Darcy Lee
Little York, PEI
|
ON HER OWN BEHALF
|
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