FEDERAL COURT OF CANADA
TRIAL DIVISION
Date:
October 15, 1985
Docket:
T-1689-85
Umpire's Decision:
CUB N/A
"TRANSLATION"
CORAM:
THE HONOURABLE DENAULT
BETWEEN:
GILLES BACON, maintenance mechanic,
applicant,
- and -
MARC CHAGNON, in his capacity as
Chairman of the Board of Referees,
respondent,
- and -
CANADA EMPLOYMENT AND IMMIGRATION COMMISSION,
mis-en-cause.
REASONS FOR ORDER
(Judgment rendered at Ottawa,
on October 15, 1985)
THE HONOURABLE MR. DENAULT:
This applicant, citing s. 18 of the Federal Court Act, is asking the Court to issue a writ of mandamus against the respondent in his capacity as chairman of a Board of Referees established pursuant to the provisions of the Unemployment Insurance Act, 1971.
On June 23, 1985, the applicant appeared before a Board of Referees for the hearing of his appeal from a decision by an employee of the Canada Employment and Immigration Commission.
Even before arguing his appeal on the merits, the applicant through his counsel submitted a preliminary motion to the chairman of the Board of Referees. The aim of this motion was to require the chairman of the Board to "invite" one Jacques Bisson, a representative of Ralston Purina Inc., to testify before the Board. According to counsel for the applicant, Mr. Bisson's presence was absolutely essential, indeed crucial, for him to properly conduct the appeal before the Board of Referees. To win an appeal before this Board, the claimant has the burden of proof and the to say the least unusual contractual relations between the employer Guertin and Ralston Purina explained the claimant's interest in calling this witness for the purposes of his case.
After consulting with the other members of the Board of Referees, the chairman dismissed the preliminary motion on the ground that Mr. Bisson's presence was not necessary or essential to resolution of the question at issue, and that in any case the record as "prepared and constituted by the Commission" was complete. However, at the request of the applicant, who indicated his intention to appeal to this Court for a mandamus, the Chairman adjourned the hearing of the appeal until this application was heard and decided. The application for mandamus seeks to require the respondent, in his capacity as Chairman of the Board of Referees, "to call Mr. Jacques Bisson in the manner prescribed by s. 64(5) of the Unemployment Insurance Regulations".
The question of the jurisdiction of the Federal Court sitting at first instance pursuant to s. 18, as opposed to s. 28, of the Federal Court Act was not in any way raised. However, it appears that the decision rendered by the Chairman of the Board of Referees is in fact one rendered by a "Federal Board, commission or other tribunal" as defined in s. 2 of the Act (Mahaffey v. Nykyforuk, (1974) F.C. 801. In acting as Chairman of the Board of Referees in the course of his duties, not only was the Board of Referees as such exercising judicial or at least quasi-judicial power, but its Chairman was doing so as well in deciding a question within his jurisdiction. As he was deciding a question incidental to the Board of Referees' final decision, it has not the type of decision which could be reviewed by the Federal Court of Appeal (s. 28) according to the established rules (In re Peltier, (L977) 1 F.C. 118 and National Indian Brotherhood v. Juneau, (1971) F.C. 66).
In short, the applicant has selected the correct forum and the question is whether in the circumstances the Court should issue a writ of mandamus.
In the submission of counsel for the applicant the Chairman of the Board of Referees, in accordance with the rules of natural justice, must allow him to present a full and complete defence. In other words, the refusal by the Chairman to allow his motion amounts to a denial of natural justice. Section 64(5) of the Unemployment Insurance Regulations, learned counsel further submitted, authorizes the Chairman to call, or rather to invite, Mr. Bisson to appear.
In support of his argument, counsel for the applicant relied on s. 91(5) of the Act and ss. 64(5), 64(6) and 66(1) of the Unemployment Insurance Regulations, which may be reproduced for reference:
"Sect. 91(5) Subject to this section, the Commission may, with the approval of the Governor in Council, make regulations for the constitution of Boards of Referees, including the appointment of the members thereof, the number of members constituting a quorum, and the practice and procedure for proceedings before a Board of Referees."
"Sec. 64(5) A person required to attend a hearing before a Board of Referees shall be notified, in writing by the Chairman of the Board or by an officer of the Commission."
"Sec. 64(6) The procedure at a hearing before a Board of Referees shall be determined by the Chairman."
"Sec. 66(1) A Board of Referees shall give each of the parties interested in an appeal a reasonable opportunity to make representations concerning any matter before the Board."
Counsel for the respondent and the mis-en-cause, for her part, argued that the Chairman of the Board of Referees, who is vested with the power to determine the procedure to be followed at the hearing (64(6)), exercised the discretionary power conferred on him by the Regulations not to invite Mr. Bisson, and cannot now be required by a prerogative writ to vary his decision.
In theory, the Court will only issue a writ of mandamus when the Government refuses to perform a specific duty imposed on it by law or regulation, or in other words, when there is a legal duty to act. Under s. 64(5) of the Unemployment Insurance Regulations, the Chairman of a Board of Referees shares with an employee of the Commission the duty to notify a person required to attend a hearing before a Board of Referees that he must be present. Neither the Act nor the Regulations says clearly to whom such an invitation must be given, but needless to say the claimant and/or his employer, if the later has filed the appeal, must be given such a notice since it is they who have the power to appeal the decision of the Commission to the Board of Referees (s. 94(1) of the Act). It can be seen simply from reading s. 64(6) that the legislator has imposed on the chairman a duty to inform interested parties that a hearing will be noted before a Board of Referees, but has not required him to call or to invite other persons to appear, still less to compel them. Similarly, he has no duty to issue a writ of subpoena to invite anyone to testify at the hearing.
The Chairman himself determines the procedure at a hearing of the Board (64(6)), and the Board of Referees to which he belongs, taken as a legal entity, must then give each of the parties interested "reasonable opportunity to make representations concerning any matter before the Board" (s. 66). The claimant, if he is the appellant, accordingly has a right to be heard and to be treated fairly in accordance with the rules of natural justice.
In the case at bar, the Court must not succumb to the temptation to consider the application for mandamus as if it were sitting as an Umpire in an appeal from a decision of the Board of Referees: in that case the latter has a duty to review the decision, taking into account in particular s. 95(a) of the Act. Here it must be determined whether the Chairman had a legal duty to call the witness whom the claimant wished to summon. In this regard CUBs 10602, 10726 and 8962, cited by counsel for the applicant, though interesting, have no relevance to the case at bar, for the judges who rendered those decisions did so as Umpires and therefore had to act pursuant to s. 95 of the Act.
In summary, first, it was not established that the Chairman of the Board had a legal duty to call a third person: he had a duty to notify interested parties and to determine procedure at the hearing. Second, while the Board of Referees as such has a duty to give the appellant a reasonable opportunity to make his representations in this regard, the application for mandamus is premature, as the Board of Referees has not yet heard the appellant's representations on the merits.
Furthermore, mandamus is a discretionary remedy - that is, the Court is not required to grant it if some other remedy exists or if issuing the writ clearly would not end the matter. That is precisely the case here. Assuming that the Chairman had a legal duty to invite the applicant's witness to appear, he could not simply invite him without requiring him to appear: if the witness in question refused to appear - he-had already given such a refusal to counsel for the applicant, who had himself Invited him to appear at the hearing of the Board of Referees - the mandamus would be ineffective at least in part. Additionally, after the hearing before the Board of Referees, the applicant could in due course appeal the decision to an Umpire if it is unfavourable to him, and ultimately to the Federal Court of Appeal, citing the denial of natural justice of which he had been the victim. In such circumstances, the Court is not prepared to exercise its discretionary power in the applicant's favour.
The application is dismissed with costs.
"Pierre Denault"
J.F.C.C.