CUB N/A
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date:
June 8, 1988
Docket:
T-472-88
Umpire's Decision:
CUB N/A
"TRANSLATION"
BETWEEN :
ROLAND FORTIN,
2655 Leclaire, app 12,
Montréal, Québec
H1V 3A8,
applicant,
-and-
CANADA EMPLOYMENT AND
IMMIGRATION COMMISSION,
1441 rue St-Urbain,
Montréal, Québec,
respondent.
REASONS FOR ORDER
(Ottawa, June 8th 1988)
DENAULT J:
The applicant is seeking a writ of mandamus requiring the respondent to refer to a board of referees a decision made by it on June 22, 1987, from which he has appealed. Following an application for reconsideration filed by an unemployment insurance claimant, the applicant at bar, the Commission decided not to alter its refusal to treat vacation pay received by the claimant when his employment ceased as earnings deductible from benefits.
As this is a second application to the same effect, the facts require close scrutiny. The applicant is a construction industry worker and in 1983 filed his first application for mandamus, 1 but this was denied by Marceau, J, then sitting in the Trial Division. On appeal this case was heard by consent of the parties concurrently with another case – Gareau 2 – that involved the same points of law. In deciding Gareau a majority of the Federal Court of Appeal decided to set aside the decision of the trial judge, which had also refused to issue a mandamus. Essentially, the Court of Appeal held that "in law [the Commission] failed to carry out its duty to examine the application for reconsideration" under s 57(1) of the Unemployment Insurance Act, 1971 and directed it "to rule on the application for reconsideration made by the appellant, on the assumption that the appellant's failure to exercise his right of appeal under s 94 of the Unemployment Insurance Act, 1971 is not relevant to the decision it has to make". Technically, though the Court of Appeal did not set aside the decision of Marceau J in the case at bar, the agreement between the parties to link the outcome of the two cases has the same effect.
On June 22, 1987, as it was required to rule on the application for reconsideration, the Commission rendered the following decision :
Because of the agreement concluded between your counsel and that of the Commission to link the outcome of your case with the Federal Court's decision in Gareau, we have reconsidered your applications for benefits covered by your action in the Federal Court in light of the decision by the Supreme Court of Canada in Bryden.
Unfortunately, in Daigle the Federal Court of Appeal held that the Bryden decision of the Supreme Court did not apply to Quebec because of the special characteristics of the trust account in Quebec, from which vacation pay of construction workers is taken. 3 The vacation pay covered by your application is therefore still earnings deductible from benefits.
We regret we cannont give you a more favourable response.
A copy of this letter has been forwarded to your legal representative.
The claimant wishes to appeal to the board of referees pursuant to s 57(2) of the Act and is asking that the case be referred to that board. The Commission is objecting because, in its submission, "reconsideration of Mr. Fortin's case ... does not create a right of appeal under s 57(2) of the Act": hence the application at bar for a mandamus.
To properly understand the application of the Court of Appeal's judgment on the refusal by the trial judge to issue a writ of mandamus, it is helpful to reproduce s 57(1) and (2) of the Unemployment Insurance Act, 1971:
57.(1) Notwithstanding section 102 but subject to subsection (6), the Commission may at any time within thirty-six months after benefit has been paid or would have been payable reconsider any claim made in respect thereof and if the Commission decides that a person has received money by way of benefit thereunder for which he was not qualified or to which he was not entitled or has not received money for which he was qualified and to which he was entitled, the Commission shall calculate the amount that was so received or payable, as the case may be, and notify the claimant of its decision.
(2) Any decision made by the Commission pursuant to subsection (1) is subject to appeal under section 94.
The Court of Appeal judgment first ruled that a claimant's failure to appeal from an unfavourable decision of the Commission under s 94 is not a bar to exercise of the discretionary power of reconsideration specified in s 57. It further held that in Gareau the Commission had refused to carry out its duty to reconsider the claimant's application, and ordered it to do so. The Commission - it had taken the same approach in the case of the applicant at bar - has now complied with this order of the Court, which regarded its actions as a refusal to carry out its duty to examine the application for reconsideration.
It now remains to be seen whether this decision of the Commission, rendered in accordance with s 57(1), is a decision which meets the conditions stated in that subsection for an appeal to be possible under s 57(2). At first sight, it would appear that any decision rendered under s 57(1) may be appealed to a board of referees. That is the interpretation given to it by the applicant. However, it can be seen from closer scrutiny of s 57(1) and the way in which both the English and French provisions are worded that an appealable decision does not result from reconsideration of any situation. Only reconsideration by the Commission of situations causing it to pay what it would have had to do eventually or to claim from the claimant what it overpaid him require the Commission to calculate the amount and notify the claimant of it. In Gareau the Court actually, without saying so expressly, gave s 57 the application it was given in another judgment of the Federal Court of Appeal in Calder v Minister of Employment and Immigration, [1980] 1 FC 842:
The authority conferred by section 57 is not confined to the reconsideration of decisions, as such, but is an authority to reconsider "any claim" in respect of which benefit has been paid or should have been paid. (My emphasis)
Accordingly, the reconsideration of a situation which does not alter an earlier decision is not appealable under s 57(2). Put otherwise, only decisions that alter an earlier decision are appealable. Other decisions which, for example, concern the deduction of an amount owed (Paidel T-2979-81) or a refusal to remit (Attorney General of Canada and a Board of Referees et al, T-2531-81, a decision of Mahoney J), may not be appealed to a board of referees. In short, as Marceau J said in his refusal to allow the first application for a writ of mandamus, "the right of appeal referred to in subs 2 of the said section applies only to a genuine review decision, in other words one that alters an original decision ...", and in my opinion the judgment of the Court of Appeal in Gareau does not have the effect of overturning this interpretation of the Act.
For these reasons, I consider that there is no basis for a writ of mandamus and the application is dismissed with costs.
PIERRE DENAULT
J
3 Daigle is no longer binding since the judgment of the same Court in Giroux (A-527-87) on April 15, 1988, but for the purposes of the application at bar for mandamus, the Court does not have to rule on the merits of the case.
2011-01-10