BETWEEN:
AUDITOR GENERAL OF CANADA
Applicant
and
MICHELLE WALSH
Respondent
Heard at St.John's, Newfoundland and Labrador, on June 22, 2004.
Judgment delivered at St.John's, Newfoundland and Labrador, on June 22, 2004.
REASONS FOR JUDGMENT OF THE COURT BY: NADON J.A.
BETWEEN:
AUDITOR GENERAL OF CANADA
Applicant
and
MICHELLE WALSH
Respondent
REASONS FOR JUDGMENT OF THE COURT
[1] We are all agreed that this judicial review application should be allowed.
[2] Both the Board of Referees and the Umpire, in reaching their respective conclusions, omitted to consider important portions of the evidence, namely, evidence emanating from the respondent to the effect that she had sought and obtained leave to concentrate on her studies and on the writing of exams scheduled at three-week intervals.
[3] We are satisfied that this omission constitutes an error of law which justifies intervention on our part.
[4] We are also of the view that the Umpire, like the Board, failed to ask himself whether, in any event, the respondent, having regard to all of the circumstances, had reasonable alternatives other than taking a leave of absence from her employment. The Board's failure to do so also constitutes a reviewable error.
[5] Consequently, this judicial review application will be allowed, the Umpire's decision dated December 20, 2002 will be set aside and the matter will be referred back to the Chief Umpire or an Umpire designated by him for a rehearing and a redetermination. There shall be no order regarding costs.
"M. Nadon"
J.A.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-145-03
STYLE OF CAUSE: ATTORNEY GENERAL OF CANADA
v. MICHELLE WALSH
PLACE OF HEARING: St. John's, Newfoundland and Labrador
DATE OF HEARING: June 22, 2004
REASONS FOR JUDGMENT
OF THE COURT: (DESJARDINS, NADON, PELLETIER JJ.A.)
DELIVERED FROM THE
BENCH BY: NADON J.A.
APPEARANCES:
Mr. Scott E. McCrossin For the applicant
Ms. Michelle Walsh For the respondent on her own behalf
SOLICITORS OF RECORD:
Mr. Morris Rosenberg For the applicant
Deputy Attorney General of Canada
Ms. Michelle Walsh For the respondent on her own behalf
Holyrood, NL