CUB 14045
JUDGMENT OF THE FEDERAL COURT OF APPEAL
Date:
June 14, 1988
Docket:
A-770-87 / A-809-87
Umpire's Decision:
CUB 14045
CORAM :
PRATTE J.
URIE J.
MacGUIGAN J.
IN THE MATTER OF AN APPLICATION UNDER SECTION 28 OF THE FEDERAL COURT ACT
AND IN THE MATTER OF A DECISION OF AN UMPIRE UNDER SECTION 96 OF THE UNEMPLOYMENT INSURANCE ACT, 1971
BETWEEN :
RANDI OVERALL,
applicant,
-and-
AN UMPIRE APPOINTED UNDER SECTION 92 OF
THE UNEMPLOYMENT INSURANCE ACT, 1971,
respondent.
BETWEEN :
No. A-770-87 / (CUB 14045)
ATTORNEY GENERAL OF CANADA,
applicant,
-and-
RANDI OVERALL,
respondent.
Heard at Vancouver on Tuesday, June 14, 1988.
REASONS FOR JUDGMENTS OF THE COURT
(Delivered from the Bench at Vancouver
on Tuesday, June 14, 1988)
PRATTE J.
These two section 28 applications are directed against the different parts of the same decision of an umpire under the Unemployment Insurance Act, 1971.
In File No. A-809-87, the applicant Overall contested the holding of the umpire that a sum of $6,500.00 that he received in September, 1985, in settlement of a claim for retroactive wages was earnings to be allocated to weeks prior to March 31, 1985.
Both parties agree that the Bourdeau case 1 correctly stated the law to be applied in this case. They also agree that the only issue to be resolved on this application is whether the umpire correctly decided that the applicant Overall had not, when he received the payment of $6,500.00, been reinstated within the meaning of paragraph 57(3)(h) of the Unemployment Insurance Regulations as it read before March 31, 1985.
The Board of Referees had held that the applicant had been reinstated. However, the umpire decided that this finding was "capricious and perverse and not in accord with a realistic examination of the facts". Since, in our opinion, there was clearly evidence supporting the conclusion of the Board of Referees, the umpire could not under paragraph 95(c) of the Unemployment Insurance Act, 1971 substitute his judgment of the facts for theirs anymore than, in similar circumstances, could this Court under paragraph 28(1)(c) of the Federal Court Act.
This first application will therefore be dismissed.
As to the other application by the Attorney General of Canada (File No. A-770-87), it is directed against the holding of the umpire that a sum of $4,000.00 paid to Mr. Overall on December 17, 1985, was not earnings.
The Board of Referees had decided that the sum in question was earnings "as it was paid in lieu of employment". The umpire held otherwise for the main reason that, in his view, the employer had not complied with the arbitration award which had ordered that Mr. Overall be reinstated in his employ. This reason does not support the learned umpire’s conclusion. Whether or not the employer had complied with the arbitration award, the fact remains that there was evidence on which the Board of Referees could base their finding. The umpire was therefore not entitled to set it aside.
This second application will therefore succeed and the matter will be refereed back to the umpire for decision on the basis that there was evidence on which the Board of Referees could legally hold that the sum of $4,000.00 here in question was earnings.
"Louis Pratte"
J.F.C.C.
1 Attorney General of Canada v. Richard Bourdeau, File No. A-99-86, October 30, 1986
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