(Delivered from the Bench at Montréal, Quebec,
on Friday, September 24, 1999)
JUDGMENT OF THE FEDERAL COURT OF APPEAL
Date:
19990924
Docket:
A-169-98
Umpire's Decision:
CUB 39353 / 39354
"TRANSLATION"
CORAM:
MARCEAU, J.A.
DESJARDINS, J.A.
LÉTOURNEAU, J.A.
BETWEEN:
CHRISTIAN LAMBERT,
applicant,
- and -
CANADA EMPLOYMENT INSURANCE COMMISSION,
respondent.
- and -
DEPUTY ATTORNEY GENERAL OF CANADA,
third party.
Hearing held at Montréal, Quebec, on Friday, September 24, 1999.
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Montréal, Quebec,
on Friday, September 24, 1999)
MARCEAU J.A.:
[1] The application for judicial review before the Court was initially brought against two related decisions of an umpire, CUB-39353 and CUB-39354, made together under the Employment Insurance Act. At the beginning of the hearing, the applicant declared that he did not wish to proceed with decision CUB-39354 and only wanted to challenge the other decision which follows. The umpire had to rule on the unanimous decision of a board of referees which had rescinded the retroactive notice of non-entitlement issued against the claimant on the ground that during the time in question, he had spent enough time on the service business he had begun after he was laid off, that he could not be deemed unemployed within the meaning of sections 8 and 10(1) of the Act, and 43(1)a) of the Regulations. The umpire amended the Board’s decision and confirmed the Commission’s notice of non-entitlement.
[2] In our view, this review application must succeed. The question on which the Board had to rule was technically a question of mixed law and fact, but the dispute concerned the establishment of facts and the Board’s role in that respect was directly linked to its purpose and expertise. Its findings could only be dismissed by an umpire if they were shown to be blatantly unreasonable. That was certainly not the case. Here, the umpire thought that he could simply substitute his own assessment of the evidence. It is true that the Board’s brief reasons supporting its findings are somewhat ambiguous, and that after reading them one might wonder if it might have confused the concepts of availability and unemployment. However, the umpire never raised this possible confusion, and even if the Board members did not fully grasp the "law" component of the issue to be resolved, their assessment of the evidence and their findings of fact did not lose their authority and the umpire did not have the power to set them aside.
[3] Thus the application will be allowed with respect to the impugned decision CUB-39353; this decision will be rescinded and the matter referred back to the chief umpire or an umpire designated by him for redetermination on the basis that an appeal from the Board’s decision cannot succeed.
[4] However, the application in as much as it was made against decision CUB-39354 is dismissed.
[5] There will be no costs.
Louis Marceau
J.A.
2011-01-10