Date: 20050113
Docket: A-30-04
Citation: 2005 FCA 17
CORAM: DÉCARY J.A.
NADON J.A.
SEXTON J.A.
BETWEEN:
DAVID MISHIBINIJMA
Appellant
and
CANADA EMPLOYMENT INSURANCE COMMISSION
Respondent
Heard at Toronto, Ontario, on January 12th, 2005.
Judgment delivered from the Bench at Toronto, Ontario, on January 12th, 2005.
REASONS FOR JUDGMENT OF THE COURT BY: SEXTON J.A.
Date: 20050113
Docket: A-30-04
Citation: 2005 FCA 17
CORAM: DÉCARY J.A.
NADON J.A.
SEXTON J.A.
BETWEEN:
DAVID MISHIBINIJMA
Appellant
and
CANADA EMPLOYMENT INSURANCE COMMISSION
Respondent
REASONS FOR JUDGMENT
(Delivered from the Bench at Toronto, Ontario, on January 12, 2005)
SEXTON J.A.
[1] The Appellant was dismissed by his employer because of excessive absenteeism and lateness for work. He then claimed for employment benefits. The Commission dismissed his claim indicating that the termination of employment was a result of his misconduct.
[2] The Appellant appealed this decision to the Board of Referees, which allowed his appeal on the basis that the claimant's alcohol dependence or addiction constituted a disability under the Canadian Human Rights Act. The Board of Referees found on the evidence before it that the employer was aware of the Appellant's problem but took no action apart for a couple of warnings. The Board further found that the employer was obligated to make efforts to accommodate the Appellant's problem such as support to the Applicant in undergoing treatment or entering a rehabilitation program.
[3] The Commission appealed the decision of the Board of Referees to the Umpire who allowed the appeal. The Umpire indicated that he required evidence of disability and that there was no proof of disability before him because the transcript of evidence taken before the Board, had not been placed before him.
[4] Section 115(2) of the Employment Insurance Act provides that the only grounds of appeal to an Umpire from a decision of the Board of Referees are:
(a) the board of referees failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
(b) the board of referees erred in law in making its decision or order, whether or not the error appears on the face of the record; or
(c) the board of referees 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.
[5] The matter before the Umpire was an appeal and the Umpire could only intervene on factual issues where the Board had based its decision on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before it. In the present case the Umpire could only make such a determination if the evidence before the Board was available to him.
[6] In the present case, there were crucial findings of fact by the Board of Referees with respect to the Appellant's alleged disability and it was therefore an error by the Umpire to proceed to make findings as he, did in the absence of that evidence.
[7] In the circumstances of this case, the application for Judicial Review should be allowed, the decision of the Umpire should be set aside and the matter should be referred back to the Office of the Umpire for a new hearing before a different Umpire. The Respondent has agreed to provide a transcript of the evidence before the Board of Referees for the new hearing.
"J. E. Sexton"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-30-04
STYLE OF CAUSE: DAVID MISHIBINJMA
Appellant
and
CANADA EMPLOYMENT INSURANCE COMMISSION Respondent
DATE OF HEARING: JANUARY 12, 2005
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT
OF THE COURT: (DÉCARY, NADON, SEXTON JJ.A.)
APPEARANCES BY:
Sunil Mathai
Clem Nabigon For the Applicant
Sadian Campbell For the Respondent
SOLICITORS OF RECORD:
Sunil Mathai
Clem Nabigon
Aboriginal Legal Services of Toronto
Toronto, Ontario For the Applicant
John H. Sims Q.C.
Deputy Attorney General of Canada
Toronto, ON For the Respondent
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