CUB 8578
JUDGMENT OF THE FEDERAL COURT OF APPEAL
Date:
March 1, 1984
Docket:
A-1261-83
Umpire's Decision:
CUB 8578
CORAM :
HEALD, J.
MAHONEY, J.
STONE, J.
IN THE MATTER OF an Appeal to the Umpire pursuant to the provisions of the Unemployment Insurance Act, 1971, S.C., 1970-71, 72, Chapter 48, and amendments thereto;
AND IN THE MATTER OF an Application under Section 28 of the Federal Court Act.
BETWEEN :
THE ATTORNEY GENERAL OF CANADA,
applicant,
-and-
PAUL HOWLEY,
respondent.
Heard at Toronto, Ontario on Wednesday, February 29, 1984.
REASONS FOR JUDGMENT
(Reasons for Judgment pronounced at Toronto, Ontario,
on Thursday, March 1, 1984)
MAHONEY J.:
This section 28 application on behalf of the Unemployment Insurance Commission seeks to set aside a decision of an umpire which, in turn, set aside the decision of a board of referees upholding the Commission's refusal to antedate the Respondent's claim for benefit. The Respondent's employment of some 31 years was terminated effective September 15, 1980. He was offered, inter alia, and accepted the following:
"We will continue your base salary for a maximum of 7½ months or until you secure suitable employment whichever happens first. During this time, normal benefit coverages and deductions will be continued.
The Respondent, acting on advice of his former employer, did not apply for unemployment insurance benefit. He was given a separation certificate and told to take it to the Commission a week or two before his "salary" ended. In mid-April, 1981, he examined the separation certificate and noticed, for the first time, that it stated his last pay period had ended September 15, 1980. He contacted the employer. He asked for a corrected separation certificate and
"learned, for the first time that I was not on salary, that the moneys I had received were a retiring allowance and, further that they had made a mistake in the T4 slip issued (for 1980) and would I please bring it back, to be replaced with a T4 for my salary period in 1980, namely to to September 15, 1980, and a T4A for the retiring allowance."
The matter was dealt with by the board and umpire on the basis that the issue was whether his employer's misinformation gave rise to good caue for his delay in applying for benefit. That is also the basis on which it was dealt with before the Court.
The board held that the misinformation did not gave rise to good cause for delay. The umpire held that "there was justifiable cause for delay in the circumstances."
I accept, as did the board and umpire and as represented, that the payments had been intended as instalments of a retiring allowance at all times and that there was not, in fact, a new arrangement made when the income tax consequences of the alternatives were appreciated. It is not, therefore, necessary to consider whether an agreement having retroactive effect can, ex post facto, give rise to good cause for delay in applying for benefit. We are left with either, or both, ignorance of the law or mistake induced by his employer's representations to the Respondent. It follows that the Umpire was bound, in the circumstances, by the decision of this Court in Pirotte (F.C.A. A-108-76, CUB 4108), to find that the board had not erred in law in arriving at its decision.
An umpire is bound, on appeal from a decision of a Board of Referees, to deal with it on the grounds prescribed by section 95 of the Unemployment Insurance Act. He is not entitled simply to substitute his discretion for that of the board. No such ground has been shown to have existed in the present case and I therefore conclude that the learned umpire erred in law in setting aside the board's decision. I would allow this section 28 application and set aside the umpire's decision.
"P.M. Mahoney"
J.
"I concur.
Darrel V. Heald, J."
"I concur.
A.J. Stone, J."
2011-01-10