(Delivered from the bench at Québec
on Monday, October 20, 1986)
JUDGMENT OF THE FEDERAL COURT OF APPEAL
Date:
October 20, 1986
Docket:
A-186-86
Umpire's Decision:
CUB 11836
"TRANSLATION"
CORAM:
THE HON. PRATTE
THE HON. MARCEAU
THE HON. LACOMBE
BETWEEN:
ATTORNEY GENERAL OF CANADA,
applicant,
- and -
ALAIN VERREAULT ET AL,
respondents,
- and -
YVON PINARD, J. UMPIRE,
mis-en-cause.
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the bench at Québec
on Monday, October 20, 1986)
THE HON. MR. PRATTE:
This application made pursuant to S. 28 of the Federal Court is against a decision of an Umpire under the Unemployment Insurance Act, 1971, which allowed an appeal brought by the respondent Verreault. As the parties had agreed, this decision applied also to the appeals brought by the other respondents.
The facts giving rise to the case are not in dispute. I need only mention those involving the respondent Verreault (hereinafter the respondent).
On July 31, 1984 the company LES PRODUITS ALIMENTAIRES ANCO LTEE told those of its employees working at its Québec plant that the plant would be finally closed down that same day and that each of them would be regarded as on leave until September 30, 1984, on which date they would be dismissed. At the same time the employer gave each of the employees in question a cheque representing his salary for the leave period and another cheque as vacation pay. Unemployment insurance premiums were paid for each of the employees affected while they were on leave, and the employee also continued to benefit from their group insurance and to earn leave.
The respondent was one of the employees affected by this plant closure. On August 2, 1984 he filed a claim for Unemployment insurance benefits. The Commission refused to grant this claim: in its view, the respondent had not been the subject of an interruption of earnings since the record disclosed that he continued to be employed by his employer until the end of September. The respondent appealed from this decision to a Board of Referees. He argued that he was laid off when the plant was closed on July 31, 1984. At the hearing, the Board of Referees considered a new written statement by the employer in which it characterized the salary paid to the respondent for the respondent for the period after July 31, 1984 as severance pay. Despite this statement, the Board found that the respondent's employment contract had continued until September 30, 1984, and that therefore the respondent had not been the subject of an interruption of earnings when the plant was closed on July 31, 1984.
The Umpire quashed this decision. He held that the respondent's employment ended on the same day the plant was closed. However, the Umpire did not specify the nature of the error he felt the Board of Referees had made or the reasons supporting his own decision. Nevertheless, these reasons could only be of two kinds: either the Umpire viewed the evidence differently from the Board of Referees, as for example by placing greater importance on the last written statement from the employer, or the Umpire found that the decision of the Board of Referees was not in accordance with the law. In the first case, it is clear that the Umpire would be exceeding his powers. Under S. 95(c) of the Unemployment Insurance Act, 1971, an Umpire may not review a finding of fact by a Board of Referees unless that finding was erroneous and made in a perverse or capricious manner or without regard for the material before the Board. Clearly, even if the findings of fact on which the Board based its decision may be questioned, it cannot be said that they are erroneous, even less that they are perverse or capricious.
If the Umpire did not base his decision on a different view of the evidence from that of the Board, the only possible explanation for his decision must be that he regarded as illegal the Board's finding that the contract of employment had not ended when the plant was closed. In that case, in our opinion, the Umpire himself made an error of law, as it seems quite certain that the parties to a contract of employment can legally agree to extend the contract for a period in which the employee will not be required to do any work.
Accordingly, whatever the reason that may have led the Umpire to intervene in this cas, we feel that he was wrong to do so.
The subject decision will accordingly be set aside and the case referred back to the Umpire to be again decided by him on the assumption that the decision made by the Board of Referees in the case at bar cannot, on the record, be reviewed for any of the reasons stated in S. 95 of the Unemployment Insurance Act, 1971.
(Louis Pratte)
J.F.C.C.
2011-01-10