Docket: A-234-14
Citation: 2015 FCA 48
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CORAM:
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NOËL C.J.
GAUTHIER J.A.
BOIVIN J.A.
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BETWEEN:
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NATHALIE CHEMOUNY
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Applicant
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and
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THE ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR JUDGMENT OF
THE COURT
(Delivered from the Bench at Montréal, Quebec,
February 17, 2015.)
GAUTHIER J.A.
[1]
Ms. Chemouny contests the validity of the
decision of the Appeal Division of the Social Security Tribunal (the Tribunal)
dismissing her appeal with regard to the Board of Referee’s conclusion that she
had voluntarily left her employment without just cause within the meaning of
sections 29 and 30 of the Employment Insurance Act, (S.C. 1996, c. 23)
[the Act] and therefore had to pay back an overpayment of $19,269.
[2]
In her application for judicial review, Ms. Chemouny
also challenges the allocation of the earnings that she had failed to report
during the weeks of December 7, 14 and 21, 2008, resulting in an overpayment of
$789.
[3]
Ms. Chemouny had filed her appeal from the
decision of the Board of Referees with the Office of the Umpire, as prescribed
by the Act at that time. As the appeal had not yet been heard on April 1, 2013,
it was transferred to the Tribunal in accordance with the new regime applicable
to such matters. Out of fairness, the Tribunal decided the appeal in the light
of the applicable provisions of the Act in force immediately before April 1,
2013. More specifically, it considered the grounds of appeal set out in
subsection 115(2) of the Act.
[4]
Ms. Chemouny submitted that the Board of
Referees had based its decision on an erroneous finding of fact that it made in
a perverse or capricious manner or without regard for the material before it. The
Tribunal concluded that the Board of Referees had made no such error in ruling
as it did, since Ms. Chemouny had not proven that she had no reasonable
alternative to leaving her employment because she had no way of getting to work
for the night shift, her car having been seized in error by the city of Montréal.
[5]
There can be no doubt that the Tribunal and the
Board of Referees applied the correct test to determine whether Ms. Chemouny qualified
for benefits under the Act. They had to determine whether she had no reasonable
alternative to leaving her employment when she did, having regard to the
circumstances and the evidence before the Board of Referees.
[6]
Such questions of fact or of mixed fact and law
are subject to the reasonableness standard of review. Essentially, Ms. Chemouny
is relying on new evidence, namely, explanations that were not before the Board
of Referees or the Tribunal.
[7]
As a general rule, this Court reviews the
validity of a decision under judicial review in the light of the evidence that
was before the administrative decision-maker. Ms. Chemouny did not explain
why this evidence, which was clearly available, was not presented to the Board
of Referees. This evidence is therefore not admissible.
[8]
Moreover, the Tribunal’s conclusion falls within
the range of possible outcomes, having regard to the evidence that was before
it.
[9]
Before both the Board of Referees and the Tribunal,
the applicant did not deny having received the earnings report by the employer
for the weeks in question (overpayment of $789). Ms. Chemouny did not submit
any arguments or evidence supporting her position that the decision of the
Board of Referees and the Tribunal on this point was inconsistent with
sections 35 and 36 of the Employment Insurance Regulations, SOR/96-332.
[10]
The application for judicial review will
therefore be dismissed.
“Johanne Gauthier”
Certified true
translation
François Brunet,
Revisor.
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