CUB N/A
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date:
19960201
Docket:
T-370-95
Umpire's Decision:
CUB N/A
"TRANSLATION"
BETWEEN :
RÉGINALD CARRIER,
applicant,
-and-
CANADA EMPLOYMENT AND
IMMIGRATION COMMISSION,
respondent.
REASONS FOR ORDER
NOËL J.:
The applicant Réginald Carrier is asking this Court to issue a writ of mandamus under section 18 of the Federal Court Act against the Canada Employment and Immigration Commission ("the Commission") to compel it to refer the decision it made for the second time not to extend the time for appeal under section 79 of the Unemployment Insurance Act 1, despite the recommendation of the Board of Referees in its decision of September 30, 1994 that it do so, to a Board of Referees established under the Act.
THE FACTS
On October 22, 1993, the applicant made an application for benefits to the Commission, stating that he had ceased to work for Transports Québec on May 11 of that year. The applicant was a permanent public servant who had been employed by the Quebec Ministère des transports since 1978. In order to reduce its aggregate salary payments and to encourage permanent employees to leave, the Ministère des transports had established the "Programme temporaire d'indemnisation des départs volontaires" [temporary compensation program for voluntary departure] which provided for severance payments for permanent employees who were prepared to quit their jobs voluntarily. In its decision dated November 24, 1993 ("the first decision"), the Commission informed the applicant that he was precluded from receiving ordinary benefits starting on October 24, 1993, and for the duration of the benefit period, since he had quit his job voluntarily without cause.
The applicant stated that he had left home to go to Florida on November 28, before receiving the Commission's decision, and that he became aware of it when he returned, on March 7, 1994. The applicant asserted that he then attended at the office of the Commission in St-Hyacinthe and that a member of the Commission's personnel explained to him that he was entitled to appeal, and also informed him that this would be a waste of time since he had quit his job voluntarily 2. However, at the end of June, the applicant learned of a memorandum from his union announcing that a claimant had won a case similar to his. By letter dated July 7, 1994, the applicant informed the Commission of his desire to appeal the first decision. The applicant explained his delay in doing so as follows: 3
[TRANSLATION]
The reason I am late is that I have just received a memorandum from my union explaining that they argued the case before the Board of Referees.
The Board of Referees found in our favour... .
On July 20, 1994, the Commission informed the applicant of its decision not to extend the time for appeal as provided by section 79 of the Act ("the second decision"), given that it had not been established that there were special reason to justify his delay 4
On August 2, 1994, the applicant appealed the second decision, again under section 79 of the Act. The appeal was heard by the Board of Referees on September 30, 1994. The Board identified the issue as follows: [TRANSLATION] "Is there a special reason that would entitle the claimant to an extension of his time for appeal?" In its decision, the Board raised the following "new" facts:
- the applicant was out of the country when the decision was sent to his home;
- a member of the personnel of the Commission's office allegedly told the applicant that an appeal would be a waste of time.
The Board unanimously concluded: 5
[TRANSLATION]
In the circumstances, the members of the board of referees believe that the appellant has established the existence of what may be called special reasons and that the Commission does not seem to have considered them. Accordingly, they return the matter to the Commission for reconsideration.
This decision is based primarily on the following case law:
Émile Chartier (A-42-90) and CUB 19019, filed by the appellant's representative.
P.S.: The members of the board of referees would appreciate being informed of the decisions in this matter.
The Commission refused to act on this recommendation. The Commission's position on this point was explained in a memorandum sent by Suzanne Ricci to the Canada Employment Centre in St-Hyacinthe. The relevant passage is as follows: 6
[TRANSLATION]
We are of the opinion that when the board decided to return the matter to the Commission, without, however, dismissing the claimant's appeal, the board quite clearly understood that, by virtue of the decisions of the Federal Court of Appeal in Chartier (A-42-90) and Plourde (A-80-90), it had no jurisdiction with respect to extending the time for appeal.
Although the Commission had no legal obligation in relation to the recommendation by the board of referees, we nonetheless took it into account. We believe that there are no grounds for reviewing the decision to deny an extension of the time for appeal. The members believed that there were new facts before them at the hearing, i.e. that the claimant had been out of the country from November 28, 1993 to March 7, 1994, and that this would explain why he had not exercised his right of appeal within the time allowed. However, the Commission was already aware of this fact when it made its decision (S&P 3073 of June 30, 1994 and our memorandum of July 13, 1994).
On October 26, 1994, the applicant received a letter from the insurance officer in charge of his case, which read as follows: 7
[TRANSLATION]
The Commission has received a copy of the decision of the board of referees dated September 30, 1994 in the case of Réginald Carrier. However, the Commission had not accepted the recommendation of the board of referees. The Unemployment Insurance Act provides for no other right of appeal.
On November 10, 1994, the applicant appealed the decision of the Commission dated October 26, 1994 and again asked to be heard by the Board of Referees. When the applicant was informed of the Commission's refusal to refer the applicant's appeal to the Board of Referees, his counsel served notice on the Commission on January 9, 1995 requiring that it refer the case to the Board of Referees. On January 23, 1995 the Commission informed counsel for the applicant of its decision not to review the decisions made and informed him that it was incorrect to say that the Board had allowed the applicant's appeal, since it had simply returned the matter to the Commission for reconsideration. The decision not to allow the new case to go through the appeal process was again confirmed by the Commission in a letter sent to the applicant on January 26, 1995. On February 21, 1995, the applicant filed an originating notice of motion with the Court seeking a writ of mandamus ordering the Commission to refer the appeal from the decision made by the Commission on October 26, 1994, filed by the applicant on November 10, 1994, to the Board of Referees.
POSITIONS OF THE PARTIES
The applicant states, first, that section 79 of the Act gives a claimant a right to appeal a decision of the Commission, which right is not in any way limited by any provision of the Act. In addition, section 64 of the Unemployment Insurance Regulations provides that the applicant may apply for a hearing before a board of referees under section 79 of the Act, and that once that application is made, the chairperson of a board of referees must grant a hearing. 8 The applicant therefore submits: 9
[TRANSLATION]
Accordingly, by deciding itself that the Board of Referees had no jurisdiction to hear the appeal filed by the applicant from its decision of October 26, 1994 and no jurisdiction to rule on the applicant's request that the Board of Referees convene a hearing, the Canada Employment and Immigration Commission quite simply substituted itself for the Board of Referees and exercised the powers conferred by the Act on the Board of Referees in its place and stead.
Second, the applicant alleges that by preventing him from referring his appeal to the Board of Referees, the Commission prevented the Board from determining the scope of its jurisdiction and powers. Since it is settled law that an administrative tribunal such as the Board of Referees has the power to determine its own jurisdiction, the applicant submits that the Commission cannot refuse to refer an appeal from one of its decisions to the Board of Referees. The Board of Referees must determine its jurisdiction and powers, and if the Commission wishes to dispute the Board's decision on that point it may exercise its right to appeal to the umpire, in accordance with the process established by the Act.
Lastly, the applicant asserts that, like any individual, the Commission is bound by the appeal procedure set out in the Act and cannot impede that process without infringing the applicant's right "to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations" as guaranteed to him by paragraph 2(e) of the Canadian Bill of Rights 10 and without infringing the principle of the rule of law.
The respondent asserts that when the Board of Referees examines a decision made by the Commission in the exercise of its discretion (in this case, the discretion to extend the time for appeal set out in section 79 of the Act) it cannot rescind that decision unless it determines that the Commission exercised its discretion in a non-judicial way, on the basis of irrelevant considerations or without taking relevant considerations into account. The respondent submits that in recommending that the Commission reconsider its decision, the Board recognized that there were no grounds for setting the decision aside, and accordingly refused to allow the applicant's appeal. According to the respondent, the only remedy available to the applicant was to appeal the decision of the Board of Referees to an Umpire.
ANALYSIS AND DISCUSSION
Section 79 of the Act gives a claimant a right to appeal decisions of the Commission:
79. (1) The claimant or an employer of the claimant may at any time within thirty days after the day on which a decision of the Commission is communicated to him, or within such further time as the Commission may in any particular case for special reasons allow, appeal to the board of referees in the manner prescribed.
(2) A decision of a board of referees shall be recorded in writing and shall include a statement of the findings of the board on questions of fact material to the decision.
Section 64 of the Regulations provides:
64. (1) A claimant may apply for a hearing before a board of referees
(a) where the claimant appeals to the board under section 79 of the Act at the time of filing the appeal; and
...
(4) The chairperson of a board of referees may at any time direct that there shall be a hearing and, where an application for a hearing before the board has been filed under this section, shall grant a hearing.
...
The applicant's argument assumes that once he had appealed the second decision, the Commission had to comply with the appeal process provided by the Act and refer the applicant's appeal to the Board of Referees. In order for this argument to succeed, it must still be established that the Commission's refusal to change its first decision despite the recommendation of the Board of Referees that it do so was a "decision" within the meaning of section 79 of the Act.
What were the powers of review of the Board of Referees with respect to the Commission's decision refusing to extend the time for appeal set out in section 79 of the Act? In Attorney General of Canada v. Jean-Denis Plourde the Federal Court of Appeal, in reasons written by Mr. Justice Marceau, decided as follows: 11
As the Court again noted quite recently in Émile Chartier et al. and Canada Employment and Immigration Commission et al. (Court No. A-42-90, dated September 13, 1990, unreported), it is to the Commission that Parliament by s. 79 of the Unemployment Insurance Act, R.S.C. 1985, c. U-1, gave the discretionary power to extend for special reasons the thirty-day deadline given a claimant for appealing from a decision affecting his right to benefits. A refusal by the Commission to exercise this discretionary power in a given case may be the subject of an appeal to a board of referees, but the board can only become involved if it appears that the discretion was exercised in a "non-judicial', way, to use the traditional phrase, that is, on the basis of irrelevant considerations or without taking relevant considerations into account.
...
... All the respondent claimant was able to say to obtain an extension of time over a year after the decisions, all he was actually relying on, was the new state of the law as the result of a shift in judicial thinking ... . This could not constitute a special reason capable of excusing a delay under s. 79 of the Act.
In the instant case, the only reason advanced by the applicant in support of his request to the Commission for an extension of the time for appeal was that his union had recently been successful in arguing a case similar to his before the Board of Referees. Having 12 regard to the decision in Plourde, this reason would not have enabled the board to find that the Commission exercised its discretion "in a 'non-judicial, way, that is, on the basis of irrelevant considerations or without taking relevant considerations into account. 13 Moreover, that is what the Board of Referees concluded, since rather than setting aside the Commission's decision, it simply referred the matter back to the Commission so that it could reconsider it having regard to [TRANSLATION] "the existence of what may be called special reasons and [the fact] that the Commission does not seem to have considered them".
Apparently, the Board of Referees did not feel that it was in a position to set aside the Commission's decision, and for that reason it limited itself to making a mere recommendation. 14 Since the Commission may follow a recommendation, but is not obliged to do so 15, it goes without saying that no appeal may be brought from its decision not to act on a recommendation. By making a mere recommendation, the Board refused to allow the appeal by the applicant who, I would recall, was asking that the Commission's decision be set aside. In these circumstances, the only remedy open to the applicant was to appeal the decision of the Board of Referees to the Umpire and to argue, if applicable, that the Board had behaved in a "non-judicial" way in refusing to allow his appeal.
For these reasons, the applicant's application for judicial review is dismissed.
Marc Noël
J.
1 R.S.C. 1985, c. U-1 (hereinafter referred to as "the Act").
2 The applicant did not state the date on which he attended at the Commission's office.
3 Applicant's record, at p. 38.
79. (1) The claimant or an employer of the claimant may at any time within thirty days after the day on which a decision of the Commission is communicated to him, or within such further time as the Commission may in any particular case for special reasons allow, appeal to the board of referees in the manner prescribed.
(2) A decision of a board of referees shall be recorded in writing and shall include a statement of the findings of the board on questions of fact material to the decision.
5 Applicant's record, at p. 42.
6 Respondent's record, at p. 4.
7 Applicant's record, at p. 44.
8 C.R.C. 1978, c. 1576 (hereinafter referred to as "the Regulations").
9 Applicant's record, at p. 73, para. 31.
10 S.C. 1960, c. 44, reproduced in R.S.C. 1985, App. III.
11 (October 1, 1990), A-80-90 (F.C.A.), at pp. 1-2 (hereinafter referred to as Plourde).
12 In his request for an extension of time, the applicant explained his delay as follows: [TRANSLATION) "The reason I am late is that I have just received a memorandum from my union explaining that they argued the case (successfully) before the Board of Referees". Applicant's record, at page 34.
13 Émile Chartier et al. v. Canada Employment and Immigration Commission, (September 13, 1990), A-42-90 (F.C.A.), at p. 2. [The passage quoted is taken from Plourde - Tr.]
14 The postscript that follows the decision, in which the members indicate that they "would appreciate", being informed of the outcome of the case, leaves no doubt as to the fact that what they had in mind to do was merely to make a recommendation.
2011-01-10