Federal Court Decision #A-1226-87 - THE ATTORNEY GENERAL OF CANADA v. DENIS, COTE

JUDGMENT OF THE FEDERAL COURT OF APPEAL

Date:
April 3, 1989

Docket:
A-1226-87

Umpire's Decision:
CUB 14456

"TRANSLATION"

CORAM:

MARCEAU J.A.
MacGUIGAN J.A.
DESJARDINS J.A.

IN THE MATTER OF an Application under Section 28 of the Federal Court Act;

BETWEEN:

THE ATTORNEY GENERAL OF CANADA,

applicant,

- and -

DENIS CÔTÉ,

respondent.

Heard at Montreal on Monday, April 3, 1989

REASONS FOR JUDGEMENT
(Delivered from the bench at Montreal
on Monday, April 3, 1989)

MARCEAU, J.A.:

This application under section 28 of the Federal Court Act is directed against a decision of an umpire acting pursuant to the Unemployment Insurance Act, 1971. Considering that the Board of referees had not demonstrated in its reasons that it had correctly perceived the problem raised by the claimant's appeal against three notices of the Commission dated August 13, 1985, the umpire set aside the decision and referred the matter back to be redecided by another Board of referees. In so doing, however, the umpire himself set the question to be dealt with by the Board of referees. Therein, submits the applicant, lies the umpire's error. The question as formulated in the order referring the matter back is allegedly incorrect and the Attorney General requests that the Court amend it so that the Board of referees be neither misled nor restricted in fulfilling its role of reviewing the notices of the Commission.

No purpose would be served here by repeating all of the facts of the case. It is sufficient, in my opinion, to point out that the argument of the Commission to which the claimant objected was essentially that the claimant, a commercial pilot by profession, had been remunerated by his sometime employer, Air B.G.M. Inc., for a period of weeks during which he claimed to be unemployed and had received unemployment insurance benefits. The initial consequence of this was naturally that those amounts received for services rendered were deductible from benefits paid. A second consequence was that the respondent, having been employed during his qualifying period for more than the 16 weeks declared, went from being a minor attachment claimant to being a major attachment claimant, which resulted in a reduction, for the entire period, of the rate of benefit to which he was entitled (cf. section 24 and section 16(1)(d) and (e)).

The umpire stated the (question which the Board of referees was to put to itself to be "whether there has been an interruption of earnings within the meaning of section 17 of the Act and sections 37, 57 and 58 of the Regulations". The true question is obviously a different one. The error is however understandable. As the umpire indicated in his reasons, the respondent's case came before him at the same time as the cases of two of the respondent's workmates and it was easy to confuse them, since in each case the decision appealed from was to set aside and the matter referred back. Be that as it may, it is clear that the application is well-founded and that the decision under review should be amended as regards the formulation of the problem to be resolved by the new Board of referees.

I would consequently allow the application, set aside the decision appealed from in part and require that the umpire, after he has partially set aside the decision of the Board of referees allowing the claimant's appeal against the three notices of the Commission, refer the matter to a newly constituted Board of referees and that he specify, giving reasons, that the question to be resolved is twofold: first and foremost, it must be decided whether, as the Commission suggests, the respondent, during the two benefit periods established in his favour on June 12, 1983 and on September 9, 1984, received, in addition to those sums which he already admits to having received, payments from his employer in exchange for services rendered, which payments would represent earnings deductible from benefits; next and subsidiarily, it must be decided whether, given these additional earnings, the rate of benefit to which the respondent was entitled for his benefit period comrnencing September 9, 1984 should not be reduced to the figure mentioned in the Commission's notice of August 13, 1985.

(Louis Marceau)

J.A.