Federal Court Decision #A-131-90 - THE ATTORNEY GENERAL OF CANADA v. FRANCINE, GAUDET

JUDGMENT OF THE FEDERAL COURT OF APPEAL

Date:
November 5, 1991

Docket:
A-131-90

Umpire's Decision:
CUB 17800

"TRANSLATION"

CORAM:

PRATTE J.A.
MARCEAU J.A.
DÉCARY J.A.

BETWEEN:

ATTORNEY GENERAL OF CANADA,

applicant,

- and -

FRANCINE GAUDET,

respondent.

Hearing held at Quebec City on Tuesday, November 5, 1991.

REASONS FOR JUDGMENT OF THE COURT
(Rendered from the bench at Quebec City
on Tuesday November 5, 1991)

PRATTE J.A.:

We are all of the opinion that this section 28 application should succeed.

The Umpire dismissed the appeal by the Canada Employment and Immigration Commission on the sole ground that, in its notice of appeal, the Commission indicated that the appeal was based on paragraph 80(b) of the Unemployment Insurance Act while, in the judge's view, the appeal was based on paragraph 80(c). In so deciding, the judge committed two errors. The first was in believing that the Commission was not challenging the decision of the board of referees on the ground of an error of law. The board had held that the respondent was unemployed. The Commission was not disputing the findings of fact on which the board based this conclusion, but rather it was arguing that one could not, without committing an error of law, conclude from these findings of fact that the respondent was unemployed within the meaning of the Act. The judge's second error was in assuming that an appellant before the Umpire can never rely on grounds of appeal other than those expressly set out in his or her notice of appeal. The notice of appeal, like any other pleading, may be amended. Accordingly, as long as the principles of natural justice are respected and the respondent is not taken by surprise, the Umpire must permit the appellant to put forward all its grounds of appeal, even if they were not set out in the notice of appeal.

The application will therefore be allowed, the subject decision will be quashed and the matter will be returned to the Umpire to be decided by him ruling on the Commission's grounds of appeal.

"Louis Pratte"

J.C.A.