A-445-95
CORAM: MARCEAU J.A.
ROBERTSON J.A.
McDONALD J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
APPLICANT
AND:
RICK KNOWLER
RESPONDENT
Heard at Vancouver, British Columbia, on Thursday, February 8, 1996.
Judgment rendered from the Bench on Thursday, February 8, 1996.
REASONS FOR JUDGMENT OF THE COURT BY: MARCEAU J.A.
A-445-95
CORAM: MARCEAU J.A.
ROBERTSON J.A.
McDONALD J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
APPLICANT
AND:
RICK KNOWLER
RESPONDENT
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Vancouver, British Columbia,
on Thursday, February 8, 1996)
MARCEAU J.A.
This application for judicial review is well founded.
The impugned decision is the second one on the same matter as it was rendered on a referral back to the umpire by this Court. An umpire had allowed an appeal from a decision of a Board of Referees, whereby the Board had declined to intervene in the exercise by the Commission of its discretionary power to refuse the extension of time claimed by the respondent under section 82 of the Unemployment Insurance Act, R.S.C. 1985, c. U-1. Reviewing the decision, the Court found that the umpire had erred in allowing the appeal and granting the extension in the absence of any indication that the Commission had initially exercised its discretion in a "non-judicial" manner, that is, on the basis of irrelevant considerations or without taking relevant considerations into account. The Court, therefore, referred the matter back to the umpire for a reconsideration on the basis that the first question to be answered was whether there was, before the Board or before him, any indication that the Commission had acted unjudicially.
It appears, on reading the decision now under review, that the instructions of the Court were misunderstood. The umpire again has taken it upon himself to simply proceed to a new evaluation of the facts and to grant the extension requested without first addressing the question of whether, in the exercise of the discretionary power conferred on it by Parliament, the Commission could be said to have acted unjudicially.
We think we should, this time, go one step further. We have reviewed the comments of the umpire and of the Board and have analyzed the evidence on file and we have seen nothing that could lead to the conclusion that the Commission failed to take into account any explanation or excuse given by the claimant-respondent for his delay in filing his appeal long after the thirty-day limit. We consider, therefore, that, in these circumstances, the umpire does not have jurisdiction to grant the appeal from the Board's refusal to intervene.
The impugned decision will therefore be set aside and the matter again referred back to the Chief Umpire for a new decision not inconsistent with these reasons.
"Louis Marceau"
J.A.
IN THE FEDERAL COURT OF APPEAL
A-445-95
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
APPLICANT
AND:
RICK KNOWLER
RESPONDENT
REASONS FOR JUDGMENT
OF THE COURT