Docket: A-372-15
Citation:
2016 FCA 141
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CORAM: TRUDEL J.A.
WEBB J.A.
SCOTT J.A.
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BETWEEN:
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ROSEMARY ANNE
HOOD
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Applicant
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and
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ATTORNEY
GENERAL OF CANADA,
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CANADIAN FOOD
INSPECTION AGENCY,
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PUBLIC HEALTH
AGENCY OF CANADA,
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PROFESSIONAL INSTITUTE OF THE PUBLIC SERVICE CANADA
EMPLOYMENT AND SKILLS DEVELOPMENT CANADA-LABOUR
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Respondents
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REASONS
FOR ORDER
SCOTT J.A.
[1]
The respondent, the Attorney General of Canada (the
AG), seeks the preliminary dismissal of this application for judicial review of
a decision of the Appeal Division of the Social Security Tribunal of Canada (AD-SST)
filed pursuant to paragraph 28(1)(g) of the Federal Courts Act
RSC, 1985, c F-7 (the Act) on the basis that said application has no reasonable
chance of success, and constitutes an abuse of process.
[2]
The AG’s motion is made in writing pursuant to
Rule 369 of the Federal Courts Rules, SOR/98-106 (the Rules).
[3]
The application concerns a decision of the AD-SST
dated July 21, 2015 wherein Tribunal Member Mark Borer (Member Borer), after
reviewing the available grounds of appeal provided by section 58(1) of the Department
of Employment and Social Development Act, S.C. 1985, c.34, (the DESDA) determined
that the applicant had failed to identify any reviewable errors in the General
Division of the Social and Security Tribunal of Canada (GD-SST) decision of
March 9, 2015 and therefore dismissed her application for leave to appeal.
[4]
The GD-SST had dismissed Ms. Hood’s application
challenging the finding of the Canada Employment Insurance Commission (CEIC)
qualifying the applicant’s severance pay as “earnings”
pursuant to subsection 35(2) of the Employment Insurance Regulations
SOR/96-332 (the Regulations).
[5]
The respondents argue that this application
should be dismissed primarily because the application has no chance of success,
it constitutes an abuse of process and this Court lacks jurisdiction to hear the
matter.
[6]
In the respondents’ view, this Court does not
have jurisdiction since the impugned decision is specifically excluded from the
group of decision listed in paragraph 28(1)(g) of the Act. The impugned
decision was a refusal to grant leave to appeal made under section 58 of the DESDA.
If their assertion is correct in law, there is no need to address their other
submissions, i.e. that the application has no chance of success and constitutes
an abuse of process.
[7]
The applicant, in response to the motion, filed
an affidavit with attachments containing 85 pages wherein she describes in
detail all the events underlying her termination and the ensuing recourses she
has undertaken to seek redress.
[8]
The applicant disputes the motion on the basis
that it violates section 7 of the Canadian Charter of Rights and Freedoms,
Part I of the Constitution Act, 1982, being Schedule B to the Canada
Act 1982 (U.K.), 1982, c. 11. She claims that it is this Court’s duty to
remedy her de facto termination and that the SST decisions are a
downstream effect of the employer’s discriminatory treatment and consequently
it is this Court’s duty to provide redress.
[9]
The other arguments presented by the applicant
do not address the issue of abuse of process or jurisdiction of this Court.
Analysis
[10]
As mentioned by Mainville J.A. in Lessard-Gauvin
v. Canada (Attorney General) 2013 FCA 147, 453 N.R. 380 at paragraph 8, the
standard for preliminary dismissal is high. It must be plain and obvious that
the application has no reasonable chance of success and that it is bound to
fail.
[11]
With these principles in mind, I am satisfied
that it is plain and obvious that this Court has no jurisdiction to entertain
the application for judicial review of a decision refusing leave pursuant to
section 58(1) of the DESDA as it is expressly excluded by section 28(1)(g)
of the Act:
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28(1) The Federal Court of Appeal has
jurisdiction to hear and determine applications for judicial review made in
respect of any of the following federal boards, commissions or other
tribunals:
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28(1)
La Cour d’appel fédérale a compétence pour connaître des demandes de contrôle
judiciaire visant les offices fédéraux suivants :
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...
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[…]
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(g) the Appeal Division of the
Social Security Tribunal established under section 44 of the Department of
Employment and Social Development Act, unless the decision is made under
subsection 57(2) or section 58 of that Act or relates to an appeal brought
under subsection 53(3) of that Act or an appeal respecting a decision
relating to further time to make a request under subsection 52(2) of that
Act, section 81 of the Canada Pension Plan, section 27.1 of the Old Age
Security Act or section 112 of the Employment Insurance Act;
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g) la
division d’appel du Tribunal de la sécurité sociale, constitué par l’article
44 de la Loi sur le ministère de l’Emploi et du Développement social, sauf
dans le cas d’une décision qui est rendue au titre du paragraphe 57(2) ou de
l’article 58 de cette loi ou qui vise soit un appel interjeté au titre du
paragraphe 53(3) de cette loi, soit un appel concernant une décision relative
au délai supplémentaire visée au paragraphe 52(2) de cette loi, à l’article
81 du Régime de pensions du Canada, à l’article 27.1 de la Loi sur la
sécurité de la vieillesse ou à l’article 112 de la Loi sur
l’assurance-emploi;
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[12]
The Federal Court of Appeal is a statutory court.
The Act or some other federal statute must confer jurisdiction for the court to
be properly seized of a matter. It is not the case in this instance.
[13]
For these reasons, I propose that this motion
for dismissal be granted, that the Notice of Application be struck out with
costs.
"A.F. Scott"
“I agree.
Johanne Trudel J.A.”
“I agree.
Wyman W. Webb
J.A.”
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