Date:
20070322
Docket: A-340-06
Citation: 2007 FCA 120
CORAM: DÉCARY J.A.
SEXTON J.A.
EVANS J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Appellant
and
HOWARD FERGUSON
Respondent
Heard at Toronto,
Ontario, on March 22,
2007.
Judgment delivered from the Bench at Toronto, Ontario, on March 22, 2007.
REASONS FOR JUDGMENT OF THE COURT BY: EVANS
J.A.
Date:
20070322
Docket: A-340-06
Citation: 2007
FCA 120
CORAM: DÉCARY
J.A.
SEXTON
J.A.
EVANS
J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Appellant
and
HOWARD FERGUSON
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Toronto, Ontario, on March 22, 2007)
EVANS J.A.
[1]
This
is an application for judicial review by the Attorney General of Canada to set
aside a decision of an Umpire (CUB 64664A) allowing an appeal by Howard
Ferguson from a decision of a Board of Referees, dated June 29, 2004. The Board
upheld a decision by the Commission that a lump sum payment to Mr Ferguson by
his employer constituted “earnings” for the purpose of the employment insurance
scheme which should be allocated to weeks when he was in receipt of employment
insurance benefits, thereby resulting in an overpayment of benefits.
[2]
The
payment had been made pursuant to an income extension aid program contained in
a collective agreement between Mr Ferguson’s employer and the union which
represented him. The program was designed to assist employees who had been laid
off for lack of work; Mr Ferguson received the payment on the voluntary
termination of his employment. There was no factual basis for allocating the
sum paid among the various items in the agreement, including the surrender of
recall rights.
[3]
In
our opinion, this case is distinguishable from the authorities on which the
Umpire relied (Canada (Attorney General), v. Plasse, [2000]
F.C.J. No. 1671, and Meechan v. Canada (Attorney
General),
2003 FCA 368). In those cases, the payments were made pursuant to the
settlement of disputes over the alleged wrongful dismissal of the employees in
question. The facts of the present case are analogous to those in Canada (Attorney
General) v. Roch, 2003 FCA 356, where payments made under a
work force reduction program were held to be “earnings”.
[4]
Whether
the payment in the present case represented “earnings” is a question of mixed
fact and law, a question on which the Board’s decision is reviewable by both
the Umpire and this Court on a standard of unreasonableness simpliciter,
absent a wrong determination of any extricable question of law: Meechan
at para. 16.
[5]
In
our view, given the breadth of the words “earnings”, there was nothing
unreasonable in the Board’s conclusion that the income extension aid program
fell within the scope of “earnings”. Nor did the Board’s decision involve a
more general question of law.
[6]
For
these reasons, the application for judicial review will be allowed, the order
of the Umpire will be set aside, and the matter remitted to the Chief Umpire or
his Designate for re-determination in accordance with these reasons.
“John M. Evans”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-340-06
STYLE OF CAUSE: THE ATTORNEY GENERAL OF CANADA v.
HOWARD FERGUSON
DATE OF HEARING: MARCH 22, 2007
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT
OF THE COURT BY: (DÉCARY, SEXTON & EVANS JJ.A.)
DELIVERED FROM THE
BENCH BY: EVANS J.A.
APPEARANCES:
Derek Edwards FOR THE APPELLANT
No appearance FOR
THE RESPONDENT
SOLICITORS OF RECORD:
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE
APPELLANT
Howard Ferguson
Brantford, Ontario FOR THE
RESPONDENT
(on his own behalf)
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