Federal Court Decision #A-487-93 - THE ATTORNEY GENERAL OF CANADA v. BALBIR, KAUR

JUDGMENT OF THE FEDERAL COURT OF APPEAL

Date:
February 8, 1994

Docket:
A-487-93

Umpire's Decision:
CUB 20023A

IN THE MATTER OF the Unemployment Insurance Act, 1971

AND IN THE MATTER OF A claim for benefit by Balbir Kaur

AND IN THE MATTER OF An appeal to an Umpire by The Commission
from a decision of the Board of Referees given at
Winnipeg, Manitoba on October 16, 1990.

CORAM:

THE HONOURABLE MR. JUSTICE STONE
THE HONOURABLE MR. JUSTICE LINDEN
THE HONOURABLE MR. JUSTICE ROBERTSON

BETWEEN:

THE ATTORNEY GENERAL OF CANADA,

applicant,

- and -

BALBIR KAUR,

respondent.

CORRESPONDING CUB: 20023

REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Winnipeg,
Manitoba, Tuesday, February 8, 1994)

STONE, J.A.:

This is an application to review the decision of an Umpire under the Unemployment Insurance Act, R.S.C. 1985, c. U-1, in respect of the respondent's claim for benefits thereunder. The respondent was not present at the hearing of this application although she was duly served with the notice of the hearing on January 7, 1994.

On December 11, 1989, the respondent submitted a claim for benefits. She supported the claim by two records of employment which indicated that she had been employed by Amarjit [Singh] Gill from July 1, 1989 to September 16, 1989 and with Prairie Life Insurance Agency Manitoba Limited from October 2, 1989 to September 8, 1990. The claim was assessed and payments were commenced on the basis that the respondent had been in insurable employment for the total of 20 weeks during these two periods.

In June, 1990, the applicant requested a ruling from the Minister pursuant to subsection 61(3) of the Act with respect to whether the respondent had been in "insurable employment" with Amarjit Singh Gill. Subsections 61(3) and (6) of the Act read:

(3) Where there arises in relation to a claim for benefit under this Act any question concerning

(a) whether a person is or was employed in insurable employment,

(b) whether a person is the employer of an insured person,

(c) the length of a person's insurable employment, or

(d) the amount of a person's insurable earnings from employment,

an application to the Minister for determination of the question may be made by the Commission at any time and by that person or the employer or purported employer of that person within ninety days after being notified of the decision of the Commission.

...

(6) On an application or an appeal under this section, the Minister shall, with all due despatch, determine the question raised by the application or vacate, confirm or vary the assessment, or reassess, and he shall thereupon notify any person affected.

By letter of July 25, 1990, the respondent was notified by the Commission to the following effect:

Based on the additional information, you did not meet the qualifying conditions for establishing a benefit period as outlined in the attached notice. The benefit period that was established for you effective 10 December 1990 has therefore been voided.

If you have received any benefits, you may have been overpaid. If an overpayment results, you will be advised shortly as to the exact amount owing. Although repayment in full is expected, repayment arrangements will be considered if you are unable to pay the full amount immediately. For repayment arrangements, contact the Collection Officer indicated on the overpayment notice.

On August 27, 1990, the respondent purported to "appeal" the Commission's determination to a Board of Referees pursuant to section 79 of the Act. A few days later, by letter of August 31, 1990, the applicant advised the respondent as follows :

It has been decided that your employment with Amarjit S. Gill was not insurable during the period from July 1, 1989 to September 16, 1989 because on non-payment of wages.

If you disagree with this decision, you may request a determination of the question within 90 days of the date of this notice pursuant to subsection 61(3) of the Unemployment Insurance Act.

Your request for a determination of the question must be sent to the Deputy-Minister of Revenue Canada-Taxation, on Form CPT 101: "Application for the Determination of a Question Regarding Insurable Employment". Copies of this form are available at any district Taxation Office.

However, the respondent did not request a further determination pursuant to subsection 61(3). Instead, she pursued her appel before the Board of Referees.

At the hearing before the Board of Referees, respondent filed as exhibit 12 a "Statement of Account" on the letterhead of Valley First Credit Union with respect to Amarjit Singh Gill containing a number of entries three of which ¹ appear in the following sequence:

The Board also had before it the Minister's ruling of June 20, 1990 as exhibit 5. In allowing the appeal, the Board of Referees had this to say:

The ruling made (exhibit 5) was that employment between July 1, 1989 and September 16, 1989, was not insurable as laid out in regulation 14(e), "no payment of wages", to which the Board takes exception. Although there was a time lapse, the claimant did receive wages amounting to $3,551.43. There is nothing to indicate that the claimant returned the money to her employer as is suggested (exhibit 5). The Board has no reason to question the validity of a record of employment which is issued if there are insurable earnings. Based on the information presented, the Board allows the appeal.

In June, 1991 the Umpire heard the applicant's appeal from the decision of the Board of Referees pursuant to section 80 of the Act. The learned Umpire obviously saw exhibit 12 as critical to the respondent's claim for he decided that the Commission should place it before the Minister on the premise, apparently, that the Minister would either alter the June 20, 1990 ruling or make a new ruling in the light of that exhibit. The Commission did as directed and the Minister did, indeed, respond by way of a letter from the Appeal Division dated May 7, 1992 which is in the following terms:

This letter concerns your request for a decision on whether or not Balbir Kaur Gill was an insured person, for unemployment insurance purposes, in respect of her employment by Amarjit Gill, from July 1, 1989 to September 16, 1989.

It has been decided that Balbir Kaur Gill was not employed in insurable employment during the period under review pursuant to paragraph 3(1)(a) of the Unemployment Insurance Act, and paragraph 14(e) of the Unemployment Insurance Regulations.

This letter was before the Umpire when the hearing of the adjourned appeal resumed. The Umpire's displeasure with the Minister's handling of the matter was made quite obvious in his decision of June 24, 1993 in which he concluded:

Once the Minister and/or his staff absolutely ignore the salient facts, as manifestly appears on the face of his and"or their official decision, they next fall into error of law in the official conclusion. It is an unlawful decision which neither the Commission, nor this umpire is obliged to obey. This umpire, in this present role, has no jurisdiction, by mandamus or otherwise, to order the Minister to reconsider his decision and to state why he disregards exhibit 12, if, after reflection, he still does or would reject, or overlook it.

This umpire's apparently only recourse is to disregard the Minister's patently arbitrary and unlawful decision, so hereby declared to be such; and by means of the powers prescribed in section 81 of the Act, (having decided that question of law), to absolve the Commission from obedience to that unlawful decision. The manner of accomplishing these ends is again provided by section 81. The Commission's appeal is dismissed. The decision of the Board of Referees herein (Wo245) dated October 16, 1990, is confirmed.

In our view, the making of the ruling was within the exclusive jurisdiction of the Minister. This was made very clear by this Court in the case of Lépine-Desmarchais of May 30, 1990 (Court file No. A-907-88) where Pratte J.A. stated for the Court:

The Umpire dismissed the applicant's appeal solely on the ground that he did not have jurisdiction to decide whether she had held insurable employment during the week following her discharge. He considered that this was a matter exclusively within the purview of the Minister of National Revenue. Applicant is now arguing the contrary. We do not feel that her argument is valid. In our view, this was indeed exclusively for the Minister.

See also Anderson v. Unemployment Insurance Umpire (1985), 63 N.R. 72 (F.C.A.), per Marceau J.A. at p.77. While the ruling stood it bound both the Board of Referees and the Umpire in any proceeding by way of appeal under the Act.

It was open to the respondent either to dispute the ruling of June 20, 1990 pursuant to subsection 61(3) itself or to pursue an appeal against it to the Tax Court of Canada pursuant to section 70 of the Act which reads:

70. (1) The Commission or a person affected by a determination by, or a decision on an appeal to, the Minister under section 61 may, within ninety days after the determination or decision is communicated to him, or within such longer time as the Tax Court of Canada on application made to it within those ninety days may allow, appeal from the determination or decision to that Court in the manner prescribed.

(2) On an appeal under this section, the Tax Court of Canada may reverse, affirm or vary the determination, may vacate, confirm or vary the assessment or may refer the matter back to the Minister for reconsideration and reassessment, and shall thereupon in writing notify the parties to the appeal of its decision and the reasons therefor.

It will be observed that the Tax Court is granted broad remedial powers under subsection 70(2). Also, subsection 71(1) is relevant for it not only confers further remedial powers on the Tax Court but renders a determination of the Minister made pursuant to section 61 of the Act "final and binding for all purposes of this Act" unless, of course, it be reversed or varied by the Tax Court itself. That subsection reads:

71. (1) The Minister and the Tax Court of Canada have authority to decide any question of fact or law necessary to be decided in determining or reconsidered under section 61 or 70 and to decide whether a person may be or is affected thereby, and, except as provided in this Act, the decision of the Minister, or the decision of the Tax Court of Canada, as the case may be, is final and binding for all purposes of this Act.

The application would be allowed, the decision of the Umpire of June 24, 1993 will be set aside and the matter will be referred back to the Umpire for redetermination on the basis that neither the Board of Referees nor the Umpire had jurisdiction to review the issue of insurability of employment or the Minister's rulings thereon and, accordingly, that the appeal from the decision of the Board of Referees dated October 16, 1990 be allowed.

"A.J. Stone"

Judge

¹ While the document before the Court does not include the day of the month on which these transactions occurred, both the Board of Referees and the Umpire treated them as having been made on January 2, 1990.