Date: 20071101
Docket: A-590-05
Citation: 2007 FCA
351
CORAM: LÉTOURNEAU J.A.
NOËL J.A.
TRUDEL J.A.
BETWEEN:
9020-8653
QUÉBEC INC.
Doing business under
trade name
Motel Richelieu
Jonquière
3075, boulevard du
Royaume
Jonquière, Quebec G7X 7V3
Plaintiff
and
MARIO CARON
1916, rue Sainte-Famille
Jonquière, Quebec G7X
4X9
Principal
defendant
and
ATTORNEY GENERAL OF CANADA
Place Guy-Favreau
200, boulevard
René-Lévesque Ouest
Montréal, Quebec H2Z 1X4
Additional defendant
Hearing held at Québec,
Quebec on November 1, 2007.
Judgment
from the bench at Québec, Quebec on November 1, 2007.
REASONS FOR JUDGMENT OF THE COURT: LÉTOURNEAU
J.A.
Date:
20071101
Docket: A-590-05
Citation: 2007 FCA 351
CORAM: LÉTOURNEAU
J.A.
NOËL
J.A.
TRUDEL J.A.
BETWEEN:
9020-8653 QUÉBEC INC.
Doing business under
trade name
Motel Richelieu
Jonquière
3075, boulevard du
Royaume
Jonquière, Quebec G7X
7V3
Plaintiff
and
MARIO CARON
1916, rue Sainte-Famille
Jonquière, Quebec G7X 4X9
Principal
defendant
and
ATTORNEY GENERAL OF CANADA
Place Guy-Favreau
200, boulevard
René-Lévesque Ouest
Montréal, Quebec H2Z 1X4
Additional defendant
REASONS FOR JUDGMENT OF THE
COURT
(Delivered from the bench at Québec, Quebec on November 1,
2007)
LÉTOURNEAU J.A.
[1]
The Court
was not persuaded that the umpire made any error that warrants its
intervention.
[2]
The
principal defendant voluntarily left his employment. The Employment Insurance
Commission (the Commission) considered that he had a valid reason for leaving the
employment. It awarded him employment insurance benefits beginning on September 7, 2003. Surprisingly, it was his
former employer (the plaintiff) which objected to his receiving such benefits,
and this delayed their being issued.
[3]
The
hearing before the board of referees took place on November 17, 2004. No one
asked that the testimony be recorded. The plaintiff chose to be represented by
Guy Desmeules, its owner. Several witnesses were called on either side and
heard by the board of referees. The Commission’s decision was upheld by the
board of referees, which gave elaborate reasons containing a summary of the
evidence. This decision was appealed to the umpire by the plaintiff.
[4]
On March 18, 2005 the parties were notified
that the hearing would be held on September 1, 2005. Two days before
the date set for the hearing, counsel for the plaintiff asked that it be
postponed.
[5]
In view of
the hardship which the principal defendant suffered as a result of being unable
to receive the benefits so long as the matter was in dispute, the umpire
adjourned the hearing to September
14, 2005.
[6]
The day
after the adjournment, namely September 2, and over five months after the
hearing date was set, the plaintiff for the first time requested a copy of the
tape of the board of referees’ sitting on November 17, 2004. At that time more
than nine and a half months had elapsed since the sitting with no copy of the
recording having been requested. The recording was not available as the result
of a mechanical breakdown and the plaintiff then asked for a second
adjournment, which was denied.
[7]
We note in
passing that the plaintiff had an opportunity to be heard before the umpire and
to call witnesses if it wished. In view of the lack of a prior recording, the
umpire properly acted with great flexibility in allowing the plaintiff to put
forward its point of view and comment on the physical evidence in the record.
[8]
This Court
has before it an application for judicial review by the plaintiff, based
essentially on an allegation of harm resulting from the lack of a recording. As
a remedy, it is asking that a new hearing be ordered before a board of
referees, with of course the rights of appeal that may result. If any harm was
done, which is far from having been established by the plaintiff, and it had
the burden of proof, we feel that it was rectified by the procedure followed by
the umpire.
[9]
The
hearing in this Court is being held today, November 1, 2007. Over four years
have elapsed since the day on which the principal defendant was ruled eligible
for benefits. He has still received nothing as a result of the plaintiff’s
proceeding. The time has come to end these proceedings.
[10]
The
application for judicial review will be dismissed with costs to the principal
defendant, set at $2,000 and payable forthwith.
“Gilles Létourneau”
Certified
true translation
Brian
McCordick, Translator
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