Federal Court Decision #A-233-94 - ATTORNEY GENERAL OF CANADA v. JAMES, D., WILE

JUDGMENT OF THE FEDERAL COURT OF APPEAL

Date:
November 30, 1994

Docket:
A-233-94

Umpire's Decision:
CUB 24262

CORAM:

STONE J.A.
LINDEN J.A.
ROBERTSON J.A.

BETWEEN:

ATTORNEY GENERAL OF CANADA,

applicant,

- and -

JAMES D. WILE,

respondent.

Heard at Halifax, Nova Scotia, Wednesday, November 30, 1994.

REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Halifax, N.S.
Wednesday, November 30, 1994)

STONE, J.A.:

Two points are raised on this application. The first concerns a question of procedure. The other relates to the merits of an appeal before the Umpire.

We are unable to agree that the Umpire erred in this decision to admit a settlement agreement made between the respondent and his former employer in the proceeding before him as "new facts". In MEI v. Bartone, Court File A-369-88, January 18, 1989, the term "new Facts" as it appears in section 86 of the Unemployment Insurance Act R.S.C. 1985, c. U-1, ¹ was interpreted in such a way as to allow the material here in question to be treated as such.

The basis on which the Umpire determined the merits of the appeal may be seen in the following passage from his decision:

The settlement between the claimant and his former employer is significant in one respect that is relevant for the purposes of this appeal. By its terms it specifically provides that "Neither party admits or alleges any fault for the unhappy differences that have arisen between them". In my view, that must be taken to nullify the comments of the claimant's supervisor, upon which the Commission, and later the Board of Referees, relied as the basis for finding that the claimant lost his employment by reason of his own misconduct. Absent that evidence, which in my view must now be discounted, there is no evidence of misconduct on the part of the claimant in relation to his dismissal from employment.

We would agree with the learned Umpire if the evidence of facts contained in the settlement agreement could be so viewed. In our opinion, however, the clause that the Umpire relied upon must be seen in the context of the entire agreement. Plainly, the agreement was designed to dispose of a complaint of alleged sexual discrimination by the respondent against his former employer. Nothing on the face of the agreement can reasonably be viewed as referable to the precise circumstances which led the respondent's former employer to dismiss him on March 15, 1991. With respect, we are unable to agree that the clause in question had the effect which the Umpire attributed to it, viz, of nullifying the comments of the respondent's supervisor before the Board of Referees.

Accordingly, the section 28 application will be allowed, the decision of the Umpire of April 11, 1994 will be set aside and the matter will be remitted to the Umpire for consideration and redetermination on the basis that the appeal from the decision of the Board of Referees be dismissed.

"A.J. STONE"

J.A.

¹ This section reads

86. The Commission , a board of referees or the umpire may in respect of any decision given in any particular claim for benefit rescind or amend the decision on the presentation of new facts or on being satisfied that the decision was given without knowledge of, or was based on a mistake as to, some material fact.