CUB 21688
JUDGMENT OF THE FEDERAL COURT OF APPEAL
Date:
February 10, 1994
Docket:
A-1449-92
Umpire's Decision:
CUB 21688
CORAM :
STONE J.A.
LINDEN J.A.
ROBERTSON J.A.
BETWEEN :
THE ATTORNEY GENERAL OF CANADA,
applicant,
-and-
MONA KOLISH,
respondent.
Hearing held at Saskatoon, Saskatchewan on Thursday, February 10, 1994.
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Saskatoon, Saskatchewan,
Thursday, February 10, 1994)
STONE, J.A.:
We are all of the view that the learned Umpire erred in finding that the reduced rate of weekly benefit provided for in Subsection 30(6) of the Unemployment Insurance Act, R.S.C., 1985, c. U-1, as amended, should have terminated on August 31, 1991, which was the day before the date on which the respondent legitimately thought she would be able to return to work.
Subsection 30(7) of the Act confers a discretion on the Commission in the following terms:
(7) The rate of benefit referred to in subsection (6) applies for such weeks as the Commission may determine within the benefit period during which the claimant was disqualified.
Nothing in the record shows that the discretion was ever exercised by the Commission. That circumstance, however, did not allow the Umpire to exercise a discretion that the legislation explicitly confers on the Commission itself. (See Attorney General of Canada v. Von Findenigg, [1984] 1 F.C. 65 (C.A.), per Thurlow, C.J. at p. 70; Harbour v. Unemployment Insurance Commission, (1986) 64 N.R. 267 (F.C.A.), per Marceau J.A., at pp. 272-273; Chartier et al. v. The Canada Immigration and Employment Commission (Court File No. A-42-90, Judgment rendered February 8, 1991.)
On the other hand, it does seem clear that the respondent raised the issue of reduced rate of weekly benefit before the Board of Referees on her appeal. That Board, however, did not address the issue which was raised again before the Umpire. The Commission had an obligation in law to exercise the discretion vested in it in respect of the period during which the reduced rate would extend (see Attorney General of Canada v. Archambault, Court File no. A-1124-92, judgment rendered November 4, 1993). In these circumstances, once the Umpire decided that the subsection 30(7) discretion had not been exercised at all, he ought to have referred the matter back to the Board of Referees with directions that the appeal to the Board against the determination of the Commission be allowed in part and that the Board should remit the matter back to the Commission for reconsideration on the basis that it exercise its discretion pursuant to subsection 30(7).
The application will be allowed, the decision of the Umpire of June 17, 1992 will be set aside and the matter will be referred back to the Umpire for reconsideration on the basis that the appeal from the decision from the Board of Referees with respect to the failure of the Commission to exercise its discretion under subsection 30(7) of the Act be allowed and that the said Board be directed to remit the matter back to the Commission for redetermination on the basis that it exercise its discretion under Subsection 30(7) of the Act.
"A.J. Stone"
J.A.