(Jugement rendered at Vancouver, B.C.,
on the 13th day of February, 1984.)
JUDGMENT OF THE FEDERAL COURT OF APPEAL
Date:
February 13, 1984
Docket:
A-1420-83
Umpire's Decision:
CUB 8561
CORAM:
THE HONOURABLE HEALD
THE HONOURABLE MAHONEY
THE HONOURABLE MARCEAU
BETWEEN:
ATTORNEY GENERAL OF CANADA,
applicant,
- and -
ARTHUR N. PENNER,
respondent.
REASONS FOR JUDGMENT
(Jugement rendered at Vancouver, B.C.,
on the 13th day of February, 1984.)
THE HONOURABLE MR. MAHONEY:
This is application pursuant to s. 28 of the Federal Court Act to set aside a decision of an Umpire made under s. 95 of the Unemployment Insurance Act. It appears that the learned Umpire verbally indicated what his decision was to be at the end of the hearing. A s. 28 application was filed within 10 days of that announcement, Court file A-868-82. The written decision was given some time later and this application was made. The two applications came on for hearing together. Since s. 70(1) of the Unemployment Insurance Regulations prescribes that "a decision of an Umpire shall be in writing ...", the application in file A-868-82 should be quashed on the ground that it had not been made in respect of a "decision" within the contemplation of s. 28.
In his claim for benefit, the Respondent alleged he had been dismissed by his employer effective February 16, 1980. His former employer alleged he had quit on that date. The Commission determined that he had left his employment without just cause contrary to s. 41(1) of the Act. A six-week disqualification from benefit, the maximum allowed by s. 43(1), was imposed by notice dated May 6, 1980. The Respondent appealed by letter dated May 30 and, on June 11, the Board of Referees dismissed the appeal. He then appealed to an Umpire.
Central to the Umpire's decision was a letter (case, p. 109) which concluded:
"Hence, I am hereby formally notifying you that your employment with the Greater Vancouver Regional District Parks Department will end February 16, 1980."
The letter had been signed and shown to the Respondent by his superior. It had not, however, been handed to him and he had no copy of it. Both he and the Commission had been refused a copy prior to the Board of Referees hearing the appeal and rendering its decision on June 11, 1980. The Board did have before it Exhibit 14 (Case, pp. 37-43), delivered by covering letter dated June 10, which explained the employer's position concerning the letter. It also had the Respondent's written request, Exhibit 15, (Case, pp. 44 & 45), presented at the hearing, which asked, inter alia,
"That the Board of Referees refer the matter back to the Commission and request (the employer) to submit original copies of the Janv. 14, 1980 letter ..."
The learned Umpire held:
"In my view, the Board of Referees erred in affirming the ruling of the Commission.
The letter of January 14, 1980 was a crucial piece of evidence. Its contents should have been in the record, for the Board to consider its implications and effect in the light of the allegations by protagonists. The Board, in my view, should have referred the matter back to the Commission to obtain the letter and to investigate further and report (see Section 65 of the Regulations). That is what the claimant himself had recommend (see Ex. 15-2).
Here, the Board's decision was based on insufficient evidence, the Commission ought to have obtained the additional evidence. If the employer refused to produce the letter, then the question: leaving without just cause vs termination by the employer, could have been deferred until all the facts were made available.
It must not be forgotten the employer was faced with litigation arising out of this very matter. It was acting on legal advice, endeavouring to preserve its best legal positin. The claimant, too, was undoubtedly acting on legal advice.
In that background, the Commission and the Board should have refrained from making final decisions, until all the material evidence was available and considered.
There was, to my mind, reversible error. The decision of the Board is rescinded."
(Case Appendix pp. 12 & 13)
This application is based exclusively on the proposition that the fact that the Board proceeded to make its decision in the absence of "crucial evidence" is not within any of the prescribed grounds upon which the decision of a Board of Referees may be appealed. Those grounds, prescred by s. 95 of the Act, are that:
"(a) the Board of Referees failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
(b) the Board of Referees erred in law in making its decision or order, whether or not the error appears on the face of the record; or
(c) the Board of Referees based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it".
The crucial character of the letter as evidence is indisputable. It is germane not only to the issue whether the Respondent quit or was fired but, if the Board found he had quit, the ensuing issue whether he had just cause to quit and, then, if it bound he had not had just cause, whether the maximum disqualification was to be sustained. It is no simply that the Board proceeded to its decision without crucial evidence; it did so knowing the evidence to exist and notwithstanding the Respondent's request that if defer its decision until it had it. That request was entirely reasonable and proper, not only in the substantial nature of its purpose but in the time frame in which the appeal had proceeded to that point. In my opinion, to so proceed was to act unfairly and, in the circumstances, a failure to observe a principle of natural justice. I therefore conclude that the learned Umpire did not err in finding reversible error.
That said, the bare recision of the Board of Referee's decision appears to leave the matter in limbo. A similar situation was encountered by the Court in Attorney General of Canada v. Frank van Findenigg (Decision rendered February 25, 1983. File A-737-82, CUB 7545) insofar as it dealt with a recision of the Board of Referees' decision without a concomitant reference back to the Board. The view of the majority of the Court was that a bare recision left the underlying determination by the Commission intact and required the claimant to initiate a new attack on it. That is no more the result intended by the Umpire here than it was found to have been intended in that case.
The question of the authority of a Board of Referees to refer a matter back to the Commission, which was of concern in the van Findenigg case, does not arise here but, that aside, the disposition made by the Court there seems appropriate here. I would, therefore, set aside the Umpire's decision and refer the matter back to him with the direction, made pursuant to s. 52(d) of the Federal Court Act, that he rescind the decision of the Board of Referees and refer the matter back to the same or a differently constituted Board for rehearing in accordance with such directions, if any, as he considers appropriate.
(P.M. Mahoney)
J.F.C.C.