(Delivered from the Bench at Toronto
on Tuesday, May 7th, 1985)
JUDGMENT OF THE FEDERAL COURT OF APPEAL
Date:
May 7, 1985
Docket:
A-706-84
Umpire's Decision:
CUB 8980
CORAM:
THE HONOURABLE JUSTICE URIE
THE HONOURABLE JUSTICE MAHONEY
THE HONOURABLE JUSTICE RYAN
BETWEEN:
JAMES J. CAMPBELL,
applicant,
- and -
THE ATTORNEY GENERAL OF CANADA representing the
CANADA EMPLOYMENT and IMMIGRATION COMMISSION
and the ELGIN COUNTY BOARD OF EDUCATION.,
respondents.
JUDGMENT
The section 28 application is dismissed.
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto
on Tuesday, May 7th, 1985)
THE HONOURABLE MR. MAHONEY:
The Applicant seeks, under section 28 of the Federal Court Act, to have the decision of an Umpire under the Unemployment Insurance Act, 1971, set aside. That decision allowed an appeal from a Board of Referees and restored a disentitlement to benefit imposed by reason of the Applicant's failure to move his availability for employment as required by section 25 of the Act.
On May 29, 1981, the Applicant elected, under a plan established pursuant to the collective agreement governing his employment, to receive only half of his annual during the upcoming school year, September 1, 1981, to August 31, 1982, inclusive, and to take an unpaid leave of absence during the following school year, September 1, 1982, to August 31, 1983. Under the plan, the remaining half of his salary for the 1981-82 school year, with interest thereon, was payable during the 1982-83 school year. The plan provided for his reemployment at the end of the leave of absence. On September 16, 1983, the Applicant made claim for unemployment insurance benefit and the disentitlement in issue ensued.
The Applicant has been represented by counsel throughout: before the Board of Referees, the Umpire and this Court. Subsequent to the filing of this section 28 application, the Applicant applied to the Umpire under section 102 of the Act, which provides:
"The Commission, a Board of Referees or the Umpire may in respect of any decision given in any particular claim for benefit rescind or amend the decision on the presentation of new facts or on being satisfied that the decision was given without knowledge of, or was based on a mistake as to, some material fact."
According to the Appellant, the Umpire refused to reconsider his decision on the ground that this section 28 application had been brought. That refusal is not subject of this or any other section 28 application and we expressly refrain from commenting on it.
The relevance of the foregoing lies in the fact that the Appellant, throughout his Memorandum of Fact and Law, has relied on material submitted to the Umpire in his section 102 application which is not before this Court, a fact of which his counsel must be taken to have been aware since the Case was sent to him January 21, 1985, pursuant to Rule 1402(4), by a covering letter which stated, in part,
"I have been directed to inform you that each party is responsible for ensuring that all material upon which he proposes to rely is in the "case" as contemplated by Rule 1402."
No application to vary the Case was made.
This application accordingly is to be decided on the material in the Case, which simply does not sustain many of the Applicant's allegations.
In our opinion, the Umpire was correct in finding that the Board of Referees had erred in law in its application of the Umpire's decision in CUB-5493. That decision is to the effect that the mere fact of a claimant being on an unpaid leave of absence is not conclusive of the issue of availability, it is not authority for the proposition that such a claimant is necessarily available. Having applied it in the latter sense, the Board of Referees did not find it necessary to consider whether the Applicant had in fact established his availability. We are also of the opinion that, on the material before him, the Umpire did not err in concluding that the Applicant had failed to prove his availability.
This section 28 application will be dismissed.
(P.M. Mahoney)
J.F.C.C.
2011-01-10