Date: 20070612
Docket: A-455-06
Citation: 2007 FCA
230
CORAM: RICHARD C.J.
LÉTOURNEAU J.A.
NADON J.A.
BETWEEN:
ATTORNEY
GENERAL OF CANADA
Applicant
and
KARINE
LAVOIE
Respondent
Hearing held at
Québec, Quebec, on June 12,
2007.
Judgment
delivered at Québec, Quebec, on June 12, 2007.
REASONS FOR JUDGMENT OF THE COURT BY: LÉTOURNEAU
J.A.
Date: 20070612
Docket: A-455-06
Citation: 2007 FCA 230
CORAM: RICHARD
C.J.
LÉTOURNEAU
J.A.
NADON
J.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
and
KARINE LAVOIE
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered from the bench at Québec, Quebec, on June 12,
2007)
LÉTOURNEAU J.A.
[1]
This is an
application for judicial review of a decision by the Umpire in CUB 66612.
[2]
The Umpire
upheld the decision of the Board of Referees, which had allowed the claimant’s
appeal of a decision of the Employment Insurance Commission (Commission).
[3]
In
assessing the respondent’s application for benefits, the Commission found that
she had not accumulated a sufficient number of insurable employment hours in
her qualifying period to be entitled to benefits. Based on the five records of
employment that she provided, the Commission found that the respondent had only
372 hours instead of the requisite 455 hours. This was the decision that was
before the Board of Referees.
[4]
At the end
of the appeal, the Board of Referees determined that the respondent was
entitled, under paragraph 8(2)(a) of the Employment Insurance Act,
S.C. 1996, c. 23 (Act), to an extension of her [TRANSLATION] “qualifying period in the
event of a pregnancy”: applicant’s record, page 61.
[5]
Paragraph
8(2)(a) provides:
|
Qualifying period
8.
…
Extension of qualifying period
(2)
A qualifying period mentioned in paragraph (1)(a) is extended by the
aggregate of any weeks during the qualifying period for which the person
proves, in such manner as the Commission may direct, that throughout the week
the person was not employed in insurable employment because the person was
(a)
incapable of work because of a prescribed illness, injury, quarantine or
pregnancy;
…
|
Période de référence
8.
[…]
Prolongation de la période de référence
(2)
Lorsqu’une personne prouve, de la manière que la Commission peut ordonner,
qu’au cours d’une période de référence visée à l’alinéa (1)a) elle n’a
pas exercé, pendant une ou plusieurs semaines, un emploi assurable pour l’une
ou l’autre des raisons ci-après, cette période de référence est prolongée
d’un nombre équivalent de semaines:
a) elle était incapable de travailler par suite
d’une maladie, d’une blessure, d’une mise en quarantaine ou d’une grossesse
prévue par règlement;
[…]
|
[6]
Before the
Umpire, the Commission argued in vain that the Board of Referees exceeded its
jurisdiction in granting an extension of the respondent’s qualifying period.
[7]
The
applicant repeated this argument before us. He reiterated that the Board of
Referees and, for that matter, the Umpire both exceeded their respective
jurisdictions by determining an extension of the qualifying period while the Commission’s
decision that was under appeal dealt only with the issue of compliance with the
minimal qualification requirements for benefits set out in section 7 of the
Act.
[8]
We concur
with this submission by the applicant. The Commission did not make a decision
about extending the qualifying period, and the Board of Referees cannot assume
that power and that function of the Commission. The Board of Referees [TRANSLATION] “made an error in deciding as
it did because it answered a question that was not before it on the appeal”:
see Attorney General of Canada v. Dyson, A-16-94, November 3, 1994
(F.C.A.), 176 N.R. 57; Canada (Attorney General) v. Read, [1994] F.C.J.
No. 359 (F.C.A.).
[9]
The Umpire
repeated this error, on the one hand by upholding the Board of Referees’
decision and, on the other hand, by determining that the possibility of an
extension of the qualifying period was implicitly part of the issue that was
before the Board of Referees on appeal.
[10]
It is
clear from subsection 8(2) of the Act that a claimant must prove “in such
manner as the Commission may direct” that he or she qualifies for an extension
of the qualifying period and that the power to extend belongs to the
Commission.
[11]
The Board
of Referees was not completely powerless when the issue of extending the
qualifying period was raised before it. Under section 82 of the Employment
Insurance Regulations SOR/96-332 and the decision in Canada (Attorney
General) v. Findenigg, [1983] F.C.J. No. 87 (F.C.A.), the chairperson of
the Board of Referees could have referred the question to the Commission for
investigation and report. Section 82 reads as follows:
|
INVESTIGATION
AND REPORT
82. The
chairperson of a board of referees may, at any time prior to the decision of
the board, refer any question arising in relation to a claim for benefits to
the Commission for investigation and report.
|
ENQUÊTE ET
RAPPORT
82. Le président d’un conseil arbitral peut, tant
que le conseil n’a pas rendu sa décision, renvoyer toute question afférente à
une demande de prestations à la Commission pour qu’elle fasse enquête à
l’égard de cette question et produise un rapport.
|
[12]
For these
reasons, the application for judicial review will be allowed without costs,
since the respondent did not contest it. The decision of the Umpire will be set
aside and the matter will be remitted to the Chief Umpire or his or her
designate for reconsideration based on the fact that, according to the evidence
in the record, the respondent did not meet the eligibility criteria for
benefits. This is without prejudice to the respondent’s right to apply to the
Commission to extend her qualifying period and to submit the necessary evidence
in support of her application.
“Gilles
Létourneau”
Certified
true translation
Mary
Jo Egan, LLB
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A-455-06
STYLE OF CAUSE: ATTORNEY
GENERAL OF
CANADA v. KARINE LAVOIE
PLACE OF HEARING: Québec, Quebec
DATE OF HEARING: June 12, 2007
REASONS FOR JUDGMENT RICHARD C.J.
OF THE COURT BY: LÉTOURNEAU J.A.
NADON J.A.
DELIVERED FROM THE BENCH BY: LÉTOURNEAU J.A.
APPEARANCES:
|
Pauline Leroux
|
FOR
THE APPLICANT
|
|
Karine Lavoie
|
FOR
THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
John H. Sims, Q.C.
Deputy
Attorney General of Canada
|
FOR
THE RESPONDENT
|
Date:
20070612
Docket: A-455-06
CORAM: RICHARD
C.J.
LÉTOURNEAU
J.A.
NADON
J.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
and
KARINE LAVOIE
Respondent
JUDGMENT
The application for judicial review is allowed
without costs, the decision of the Umpire will be set aside and the matter will
be remitted to the Chief Umpire or his or her designate for reconsideration
based on the fact that, according to the evidence in the record, the respondent
did not meet the eligibility criteria for benefits. This is without prejudice
to the respondent’s right to apply to the Commission to extend her qualifying
period and to submit the necessary evidence in support of her application.
“J. Richard”
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