CUB 26841
JUDGMENT OF THE FEDERAL COURT OF APPEAL
Date:
October 17, 1995
Docket:
A-127-95
Umpire's Decision:
CUB 26841
CORAM :
THE CHIEF JUSTICE
THE HONOURABLE MR. JUSTICE STONE
THE HONOURABLE MR. JUSTICE McDONALD
BETWEEN :
THE ATTORNEY GENERAL OF CANADA,
applicant,
-and-
LECH PODGORSKI,
respondent.
Heard at Vancouver, B.C. on Tuesday, October 17, 1995.
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Vancouver, B.C.
Tuesday, October 17, 1995)
STONE, J.A.:
In August 1992, the respondent was notified by letter from the CIC Settlement Office of Employment & Immigration Canada that a place had been found for him in a twenty-one week "fulltime" Monday to Friday language instruction course beginning August 24, 1992, in Vancouver, and that if he did not show up or call the Commission his name would be removed from inventory. The respondent was a recent arrival in Canada from Poland. He decided to attend the course which he was unable to do while employed. At the same time, he applied for benefits under the Unemployment Insurance Act. By letter dated September 9, 1992, the Commission determined that because the respondent had left his employment 'without just cause' within the meaning of section 28 of the Act, he was disqualified from receiving benefits for eleven weeks. The letter indicated that the respondent had a right of appeal within thirty days of its receipt.
The issue before this Court is whether the Umpire erred by, in effect, upholding the decision of the Board of Referees reversing the Commission's refusal of the respondent's application of March 1, 1993, for an extension of time within which to appeal the Commission's decision of September 9, 1992. It is clear that the evidence before the Board of Referees as to when the respondent was notified by the Commission of his right to appeal and the time limit for doing so was in conflict. That being so, it was for the Board pursuant to subsection 79(2) 1 of the Act to resolve the conflict. In doing so, the Board of Referees obviously preferred the respondent's evidence over that of the Commission's, when it found:
The Board, after carefully reviewing all the information presented, finds that the claimant was never informed of his rights and obligations, namely his right to appeal within the 30 day time limit.
The only evidence of the date of receipt of the September 9, 1992, letter, other than the evidence contained in the Conunission's file, was that of the respondent who maintained that the letter was not received by him until February 16, 1993. It should be emphasized here that the respondent's evidence of how he first became aware of the requirement for appealing the September 9, 1992, decision within 30 days, was not before the Commission. It represented additional evidence in the proceedings before the Board of Referees.
In the light of the above finding, we are all of the view that the section 28 application must, in effect, fail. While we agree that the reasons given by the Umpire could conceivably be construed as being concerned with the merits of the case which the respondent wishes to assert by way of appeal from the September 9, 1992, decision, 2 we are of the view that the Commission failed to take properly into account that the notification of right to appeal and of the relevant time limit was not communicated to the respondent until after that time limit had expired, and accordingly that it did not exercise its subsection 79(1) 3 discretion judicially, as indeed the Board of Referees itself had found. (See Chartier v. The Attorney General of Canada, Court file No. A-42-90, Judgment rendered September 13, 1990).
The application will be allowed, the Umpire's decision of May 25, 1993, will be set aside and the decision of the Board of Referees will be restored with the result that the matter will be returned to the Commission for redetermination in the light of the Board of Referees' finding.
"(Sgd.) A.J. Stone"
J.A.
1 Subsection 79(2) reads as follows:
(2) A decision of a board of referees shall include a statement of the findings of the board on questions of fact material to its decision.
2 The Umpire concluded his decision as follows:
In this case I find that the Commission exercised its discretion "without regard to relevant considerations". In other words, by referring the claimant to a course of instruction when be was entitled to benefits, having the required number of insurable weeks. He should not have been found to have quit his position "voluntarily without just cause" and as a result therefrom, suffered disqualification of 11 weeks. I therefore make the decision that the Board of Referees should have made under Section 81 and allow the appeal by sending this back to the Commission to allow it to exercise its discretion judicially within the precepts of Chartier.
3 Subsection 79(1) of the Act reads as follows:
(1) The claimant or an employer of the claimant may at any time within thirty days after the day on which a decision of the Commission is communicated to him, or within such further time as the Commission may in any particular case for special reasons allow, appeal to the board of referees in the manner prescribed.
2011-01-10