Date: 19990622
Docket: A-194-98
| CORAM: LÉTOURNEAU J.A. |
| ROTHSTEIN J.A. |
| McDONALD J.A. |
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Appellant
- and -
DAVID B. MACLEOD
Respondent
HEARD at Toronto, Ontario, Tuesday the 22nd day of May, 1999
JUDGMENT delivered at Toronto, Ontario, Tuesday the 22nd day of May, 1999
REASONS FOR JUDGMENT OF THE COURT BY: LÉTOURNEAU J.A.
Date: 19990622
Docket: A-194-98
| CORAM: LÉTOURNEAU J.A. |
| ROTHSTEIN J.A. |
| McDONALD J.A. |
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Appellant
- and -
DAVID B. MACLEOD
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the bench at Toronto, Ontario
on Tuesday the 22ndday of June, 1999)
LÉTOURNEAU J.A.
[1] We are of the view that this application for judicial review against the decision of Marin R.J. acting as an Umpire under the Employment Insurance Act (Act), which allowed the respondent"s appeal from a decision of a Board of Referees (Board), ought to be granted.
[2] The Umpire erred in setting aside the Board"s decision and, thereby, granting an extension of the 30-day limitation period imposed by subsection 79(1) of the Act to appeal a decision of the Canada Employment Commission (Commission). Subsection 79(1) reads as follows:
| 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. |
79. (1) Le prestataire ou un employeur du prestataire peut, dans les trente jours de la date où il reçoit communication d"une décision de la Commission, ou dans le délai supplémentaire que la Commission peut accorder pour des raisons spéciales dans un cas particulier, interjeter appel de la manière prescrite devant le conseil arbitral. |
| [3] There was no evidence that, in refusing the respondent an extension of time to appeal, the Commission or the Board failed to exercise its discretion judicially. On the contrary. |
| [4] The original decision of the Commission which retroactively suspended the benefits of the respondent and resulted in overpayment was issued in 1989. At that time, the respondent was informed that he had 30 days to appeal and that he would be required to repay the overpayment. No appeal was launched. |
| [5] Six years later, more precisely in April 1995, the respondent inquired as to the status of the overpayment. He indicated his belief that it had been cancelled. He was then informed by the Commission in May that the overpayment was still owing and he was issued a Notice of Overpayment to this effect. Almost a year later, i.e. in April 1996, the respondent indicated that he wanted to appeal the issue of overpayment which went back to 1989. |
| [6] The Commission"s refusal in 1996 to send to the Board the respondent"s appeal because it was statute barred amounts to a refusal to extend the limitation period in subsection 79(1) and to a finding that the respondent failed to provide special reasons to justify the delay. In endorsing the Commission"s decision, the Board was of the same view. We cannot say that, in these circumstances, the Commission and the Board acted arbitrarily or in bad faith or failed to take into account relevant factors in coming to that conclusion. |
| [7] The Umpire agreed that the delay was protracted, but concluded that the Commission"s refusal to accept the respondent"s late filing ought to be set aside because the Commission had failed to follow its own policy and guidelines in never advising the respondent that he had 30 days to appeal, especially when it wrote to the respondent on May 26, 1995. This reasoning of the Umpire does not survive factual and legal scrutiny. |
| [8] First, the decision that the respondent seeks to appeal was issued on August 10, 1989 and the respondent was, at the time, informed of the 30-day limitation period. The Commission was under no obligation in subsequent discussions with the respondent as to the status of overpayment and possible enforcement of its 1989 decision to give a warning to the respondent with respect to the limitation period to appeal. Indeed the Commission would have been misleading the respondent if it had given such a warning for the right to appeal within 30 days had expired many years before. |
[9] Moreover, the Umpire was in error when he considered the May 26, 1995 letter of the Commission to the respondent to be a decision of the Commission. Such letter was merely a response to the respondent"s query as to the outstanding overpayment balance due.
| [10] Second, the failure of the Commission to follow its general policy of notifying unsuccessful claimants of the 30-day limitation period with respect to an appeal does not create a right under the Act. As stated by our colleague Marceau J.A. in the case of Stolniuk1:The failure of the Commission to follow its policy in a particular case and send a warning to a claimant before giving effect to his or her unavailability may possibly give the claimant a cause of action in administrative law for a remedy based on administrative liability. But it cannot create a right under the Unemployment Insurance Act. |
[11] For these reasons, this application for judicial review will be granted, the decision of the Umpire will be set aside and the matter will be remitted to the Chief Umpire or an Umpire that he designates for reconsideration on the basis that the respondent"s appeal to the Umpire from the decision of the Board of Referees dated June 27, 1996 be dismissed.
"Gilles Létourneau"
J.F.C.A.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: A-194-98
| STYLE OF CAUSE: THE ATTORNEY GENERAL OF CANADA |
| Appellant |
| - and - |
| DAVID B. MACLEOD |
Respondent
DATE OF HEARING: TUESDAY, JUNE 12, 1999
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT
| OF THE COURT BY: LÉTOURNEAU J.A. |
Delivered at Toronto, Ontario
on Tuesday the 22ndday of June 1999
| APPEARANCES: Ms. Jan Rodgers |
| For the Appellant |
| SOLICITORS OF RECORD: Morris Rosenberg |
| Deputy Attorney General of Canada |
For the Appellant
| David B. McLeod |
| 666 Bon Echo Drive |
| Oshawa, Ontario |
| L1J 6A4 |
| On His Own Behalf |
FEDERAL COURT OF APPEAL
Date: 19990622
Docket: A-194-98
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Appellant
- and -
DAVID B. MACLEOD
Respondent
REASONS FOR JUDGMENT
OF THE COURT
__________________1 Canada (Attorney General) v. Stolniuk(1994), 174 N.R. 229 at p. 231-32 (F.C.A.).