Federal Court Decision #A-713-01 - ATTORNEY GENERAL OF CANADA v. MOSHER, SHELLEY, MARIE

JUDGMENT OF THE FEDERAL COURT OF APPEAL

Date:
2002-10-02

Docket:
A-713-01

Neutral citation:
2002 FCA 355

Umpire's Decision:
CUB 51196A

CORAM:

DÉCARY J. A.
LINDEN J. A.
LÉTOURNEAU J. A.

BETWEEN:

ATTORNEY GENERAL OF CANADA,

applicant,

- and -

SHELLEY MARIE MOSHER,

respondent.

Hearing held at Vancouver, British Columbia, on October 1, 2002.

CORRESPONDING CUB: 51196

CORRESPONDING CUB: 51196C

REASONS FOR JUDGMENT
(Delivered at Vancouver, British Columbia,
on October 2, 2002)

DÉCARY J. A.:

[1] The Umpire failed to determine the only issue before him, specifically, whether or not the allocation of earnings was properly made. Instead, he embarked upon a separate area of inquiry, that being whether or not the Commission had committed a reviewable error in refusing to write off the overpayment that had been created by the allocation.

[2] It is settled law that such an inquiry is beyond the purview of the Umpire and can only be undertaken by way of judicial review of the Commission’s decision in the Federal Court Trial Division (see Canada (Procureur général) v. Filiatrault, (1998), 235 N.R. 274 (F.C.A.); Canada (Attorney General) v. Idemudia (1999), 236 N.R. 352(F.C.A.)).

[3] As a result, the Court cannot but allow the application for judicial review, set aside the decision of the Umpire and refer the matter back to the Chief Umpire or his designate for determination of the sole issue which is within the Umpire’s jurisdiction, i.e. whether or not the allocation of earnings was properly made.

[4] The Court was informed at the hearing that the Commission had written off the debt owed to the Crown in this matter by the respondent. This write-off does not affect the amounts already recouped by the Commission. These amounts, and these only, remain in issue.

[5] No costs should be awarded.

(Sgd.) " Robert Décary "

J. A.

(Sgd.) " Allen M. Linden "

J. A.

(Sgd.) " Gilles Létourneau "

J. A.