Williams v. Canada (Attorney General), 2006 FCA 222

Date: 20060613

Dockets: A-514-05

A-408-05

Citation: 2006 FCA 222

CORAM:       DÉCARY J.A.

                        LÉTOURNEAU J.A.

                        NOËL J.A.

BETWEEN:

NICOLE WILLIAMS

Applicant

and

ATTORNEY GENERAL OF CANADA

Respondent

Hearing held at Québec, Quebec, on June 13, 2006.

Judgment delivered from the bench at Québec, Quebec, on June 13, 2006.

REASONS FOR JUDGMENT OF THE COURT BY:                                 LÉTOURNEAU J.A.

Date: 20060613

Dockets: A-514-05

A-408-05

Citation: 2006 FCA 222

CORAM:       DÉCARY J.A.

                        LÉTOURNEAU J.A.

                        NOËL J.A.

BETWEEN:

NICOLE WILLIAMS

Applicant

and

ATTORNEY GENERAL OF CANADA

Respondent

REASONS FOR JUDGMENT OF THE COURT

(Delivered from the bench at Québec, Quebec, on June 13, 2006)

LÉTOURNEAU J.A.

[1]               The applicant is challenging the initial decision (CUB 63735) of the Umpire Goulard, dated June 13, 2005, as well as the decision dated August 11, 2005 (CUB 63735A). These decisions concern an application to reconsider the initial decision. This application for reconsideration was brought under section 120 of the Employment Insurance Act, S.C. 1996, c. 23.

[2]               It is not necessary to reproduce this section. It is only necessary to sum up the gist of it, that is to say, an umpire may rescind or amend his or her decision if new facts are presented, if the decision was rendered before a material fact was known or if the decision was rendered on the basis of a mistake concerning a material fact.

[3]               The initial decision concerns the apportionment of $15,000 received by the applicant as severance pay for the employment she held. The Umpire rescinded the decision of the Board of Referees to conclude first of all that these were earnings within the meaning of subsection 35(2) of the Employment Insurance Regulations, SOR/96-332 (Regulations). He then ruled that the allocation of this amount should have been done in accordance with subsections 36(9) and (10) of the Regulations and not pursuant to subsection 36(11), as the Board of Referees had decided.

[4]               In our opinion, the Umpire was correct in concluding that this was severance pay for termination of employment. On the basis of Canada (Attorney General) v. Savarie (1996), 205 N.R. 302 (F.C.A.), leave to appeal refused, [1996] S.C.C.A No. 570 and Lemay v. Attorney General of Canada, 2005 FCA 433, the method of allocation was governed at that time by subsections 36(9) and (10) of the Regulations.

[5]               The Umpire ruled that subsection 36(11) did not apply, because there was no evidence to the effect that the $15,000 in severance pay was at the same time allocated for specific weeks, as is required under the Regulations, and was the result of warranted disciplinary action. We agree with him, as the agreement concluded between the parties did not stipulate such measures in connection with this amount, and it was not allocated to specific weeks.

[6]               As far as the application for redetermination is concerned, we are not convinced that the Umpire erred in rejecting the applicant’s submission to the effect that the criteria under section 120 concerning an application for redetermination were met.

[7]               In addition, the applicant wanted to file a letter from her former employer, who had been solicited by her after the Umpire’s decision had been rendered. This letter repeated in part the phraseology of subsection 36(11) of the Regulations.

[8]               In our opinion, the Umpire was correct in ruling that this evidence added nothing new to what was already on record. In addition, it was in no way determinative with regard to the application of subsection 36(11) of the Regulations to the facts of the case.

[9]               Counsel for the applicant requested that this Court allow him costs in these applications for judicial review, as well as his extrajudicial fees, even if the applicant’s applications should be dismissed. We are of the opinion that nothing warrants departing from the rule which provides that costs are allowed according to the outcome of the case.

[10]           For these reasons, the applications for judicial review in dockets A-514-05 and A-408-05 will be dismissed but with only one set of costs. However, the respondent will be entitled to his disbursements in each of the two cases.

“Gilles Létourneau”

Certified true translation

Michael Palles

FEDERAL COURT OF APPEAL

SOLICITORS OF RECORD

DOCKETS:                                                    A-514-05 and A-408-05

STYLE OF CAUSE:                                      NICOLE WILLIAMS v. ATTORNEY

                                                                        GENERAL OF CANADA

PLACE OF HEARING:                                Québec, Quebec

DATE OF HEARING:                                  June 13, 2006

REASONS FOR JUDGMENT                    DÉCARY J.A.

OF THE COURT:                                          LÉTOURNEAU J.A.

                                                                        NOËL J.A.

DELIVERED FROM THE BENCH:          LÉTOURNEAU J.A.

APPEARANCES:

SOLICITORS OF RECORD: