(Delivered from the Bench at Toronto,
on Friday, March 27, 1992)
JUDGMENT OF THE FEDERAL COURT OF APPEAL
Date:
March 27, 1992
Docket:
A-761-90
Umpire's Decision:
CUB 16030A
CORAM:
THE HONOURABLE MR. JUSTICE STONE
THE HONOURABLE MR. JUSTICE MacGUIGAN
THE HONOURABLE MR. JUSTICE LINDEN
IN THE MATTER OF: the Unemployment Insurance Act, 1971
AND IN THE MATTER OF: a claim for benefit
by Craig Williams et al
AND IN THE MATTER OF: an appeal to the umpire by the claimants
from a decision of the board of referees given at
St. Catharines, Ontario on September 2, 1987
AND IN THE MATTER OF: an application by the Attorney General of Canada
pursuant to the provisions of section 28 of the Federal Court Act and Court no. A-105-89
whereby the Federal Court of appeal, on June 29, 1990, unanimously set aside
the umpire's decision of December 12, 1988 and referred it back to the umpire
AND IN THE MATTER OF: the decision on reference back
from the Federal Court of appeal of the umpire dated August 8, 1990
BETWEEN:
CRAIG WILLIAMS, ROSS ARMSTRONG, MICHAEL AUSTIN,
WERNER DRANGER, ALAIN GINDROZ, JOHN MCINTOSH,
CHARLES MORRISON ET CHARLES WHEELER,
applicants,
- and -
THE ATTORNEY GENERAL OF CANADA,
respondent.
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto,
on Friday, March 27, 1992)
MacGUIGAN J.A.:
This s. 28 review is a follow-up to our decisions in Attorney General of Canada v. Kelly et al., A-100-89, A-101-89, A-102-89, A-103-89, A-104-89, A-105-89, A-106-89, A-268-89, A-286-89, decided June 29, 1990, which returned the matters in question to the umpire for reconsideration on the basis that the leave pay provisions of the collective agreement are irrelevant for the purpose of applying s. 37(3) and 42(4) of the Unemployment Insurance Regulations ("the Regulations") 1 s. 37(3) and 42(4) of the Unemployment Insurance Regulations ( to the facts of the various cases.
When these matters were returned to the umpire, after reciting the gist of the Appeal decision common to all the cases, the entirety of his reasons for decision is as follows (Case at 403):
In light of this decision, the claimant's appeal from the Board of Referees' decision of September 2, 1987, is dismissed. [Emphasis added]
It is clear to us from these sparse words that the learned Umpire did not, as he should have done, reconsider the matter on the basis of our decision, but rather took the view that our decision alone resolved all the issues. In so doing, in our view he fell into error.
In particular, the Umpire did not direct his mind to the number of days of leave entitlement that should be taken into account for unemployment insurance purposes. As Desjardins J.A. stated for the Court in Kelly, supra at 16-17:
On the other hand, the alternative submission of the respondents amounts to a request for a careful application of the collective agreement so as to make sure that those leave days that are lost because of a deadline prescribed in the collective agreement not be retained for purposes of calculating the leave entitlement.
I have no difficulty with this proposition which flows from a proper application of the collective agreement to the facts if they so exist. In view of our decision in Canadian Marine Officers Union, supra, which confirmed In Re Henri Fortin, supra no special directive to the umpire of the Commission is however required.
Since the contract provides that leave days must be taken by employees before December 1 in each year unless they are on vessels operating all year, it is only days of leave subsequent to that day that may be taken into account: Fortin, CUB 12443 (Walsh J.) upheld by this Court in Canadian Marine Officers Union v. Board of Referees (1988), 99 N.R. 134 and in Canada v. Fortin (1988) 99 N.R. 138.
It may well be, as the respondent argued, that the particular employees involved in these cases were on year-round vessels to whom no cut-off dates applied. If so, the respondent may well be ultimately successful, but only when the Umpire directs his mind to the question. It may also be, again as contended by the respondent, that the conduct of the parties indicates that they both have agreed on variations from the collective agreement, so that it was not applied as written, but that again is a matter for the Umpire's determination. On both these issues it appears to us that the Umpire may need to have recourse to further fact-finding by the Board of Referees.
The s. 28 application will therefore be allowed, the decision of the Umpire of August 8, 1990, set aside, and the matter returned to him for reconsideration on the basis that he should direct the Board of Referees to re-hear the case on the issues of the operational patterns of the vessels on which the claimants served and of variations from the collective agreement agreed to by the parties, if any.
Mark R. MacGuigan
JUDGE