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                                                                                                                                            Date: 20031002

                                                                                                                                        Docket: A-140-03

                                                                                                                              Citation: 2003 FCA 368

CORAM:        ROTHSTEIN J.A.

SEXTON J.A.

SHARLOW J.A.

                  IN THE MATTER OF the Employment Insurance Act S.C. 1996, c. E-5.6

         AND IN THE MATTER OF the Federal Court Act, R.S.C. 1985, C. F-7, s. 18.1, 28

BETWEEN:

                                                                NICOLE MEECHAN

                                                                                                                                                       Applicant

                                                                                 and

                                            THE ATTORNEY GENERAL OF CANADA

                                                                                                                                                   Respondent

                                           Heard at Edmonton, Alberta, on October 2, 2003.

                                Judgment delivered at Edmonton, Alberta, on October 2, 2003.

REASONS FOR JUDGMENT BY:                                                                                      SEXTON J.A

.

CONCURRED IN BY:                                                                                                   ROTHSTEIN J.A.

                                                                                                                                            SHARLOW J.A.


Date: 20031002

Docket: A-140-03

Citation No.: 2003 FCA 368

CORAM:        ROTHSTEIN J.A.

SEXTON J.A.

SHARLOW J.A.

                        

                  IN THE MATTER OF the Employment Insurance Act S.C. 1996, c. E-5.6

         AND IN THE MATTER OF the Federal Court Act, R.S.C. 1985, C. F-7, s. 18.1, 28

BETWEEN:

                                                                NICOLE MEECHAN

                                                                                                                                                       Applicant

                                                                                 and

                                            THE ATTORNEY GENERAL OF CANADA

                                                                                                                                                   Respondent

                                                        REASONS FOR JUDGMENT

SEXTON J.A.

FACTS

[1]                 This is an appeal from a decision of the Umpire who reversed the decision of the Board of Referees which in turn had accepted the Applicant's position that the sum of $6,182.19 received by her by way of a settlement from her employer did not represent "earnings" pursuant to the Employment Insurance Regulations.


[2]                 The Applicant was employed by the University of Alberta as a casual worker from 1990 to 1999. On June 11, 1999, the Applicant received a letter purporting to terminate her employment with cause. After a letter from her lawyer was received by the University, the University admitted that the termination could not be justified and that as a result the Applicant was being reinstated in her position. The letter from the University also indicated that she would be compensated for any lost work in the interval and she was so compensated.

[3]                 The Applicant was informed by the University that she could return to work but rather than returning she filed a grievance through her Union claiming inter alia:

(1)         that she be reinstated to her position;

(2)         that she receive all monies lost as a result of the University's termination along with past amounts owing for overtime.

[4]                 The parties appeared before a Board of Arbitrators to deal with the grievance and after some discussion the University and the Applicant settled the matter. The settlement was communicated to the Board of Arbitrators who said as follows:

"After reviewing the documentation and hearing submissions from the parties, our Board of Arbitration holds as follows:

1.              The Grievor is entitled to be reinstated to her employment

2.              In compensation for the Grievor's relinquishing her right to reinstatement, the University shall pay the Grievor damages in the amount of $6,182.19"                          


[5]                 The Commission took the position that these "damages" arising from the settlement in arbitration compensated the Applicant for loss of income for the time she lost following dismissal. The Commission argued that the award comprised income out of employment unless the Applicant could show otherwise and that the Applicant had failed to do so.

[6]                 The Board of Referees held that the onus was on the claimant to show that the settlement or any portion of it was for something other than compensation for lost income but went on to accept the evidence presented by the Applicant that a portion of the award was for the payment of legal fees with the remainder representing the relinquishing of the right for reinstatement and therefore none of the monies were to be considered earnings.

[7]                 The Commission appealed to the Umpire who reversed the decision of the Board of Referees.

[8]                 The Umpire held that the Applicant having earlier rejected reinstatement by the University, the only redress remaining available to the Applicant was the financial aspect of her grievance. The Umpire said:

"The claimant has not proven that special circumstances existed to establish that the damages settlement she obtained was for a purpose other than loss of income. She has not established that it was for relinquishing her right to reinstatement."

[9]                 The Umpire further said that the Board of Referees had reached its decision without taking into account the onus on the claimant to prove the existence of special circumstances and that therefore the Board had erred in law.


STANDARD OF REVIEW

[10]              Section 115 of the Employment Insurance Act provides as follows:


115. (1) An appeal as of right to an umpire from a decision of a board of referees may be brought by

(a) the Commission;

(b) a claimant or other person who is the subject of a decision of the Commission;

(c) the employer of the claimant; or

(d) an association of which the claimant or employer is a member.

Grounds of appeal

(2) The only grounds of appeal are that      

(a) the board of referees failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;

(b) the board of referees erred in law in making its decision or order, whether or not the error appears on the face of the record; or

(c) the board of referees based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.

115. (1) Toute décision d'un conseil arbitral peut, de plein droit, être portée en appel devant un juge-arbitre par la Commission, le prestataire, son employeur, l'association dont le prestataire ou l'employeur est membre et les autres personnes qui font l'objet de la décision.

Moyens d'appel

(2) Les seuls moyens d'appel sont les suivants :

a) le conseil arbitral n'a pas observé un principe de justice naturelle ou a autrement excédé ou refusé d'exercer sa compétence;

b) le conseil arbitral a rendu une décision ou une ordonnance entachée d'une erreur de droit, que l'erreur ressorte ou non à la lecture du dossier;

c) le conseil arbitral a fondé sa décision ou son ordonnance sur une conclusion de fait erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des éléments portés à sa connaissance.



[11]            The Supreme Court of Canada in the Dr. Q. case said that the role of a Court of Appeal was to determine whether the reviewing Judge has chosen and applied the correct standard of review and in the event that Judge has not, to assess the administrative body's decision in light of the correct standard of review. The Court was speaking of a Judge as opposed to administrative tribunal. What we have in the present case is one administrative tribunal reviewing a decision of another administrative tribunal. The analysis of the Supreme Court would appear to be applicable here and therefore the job of this Court is to examine the standard of review applied by the Umpire to the decision of the Board of Referees and to conclude whether or not the Umpire applied the correct standard of review to the decision of the Board of Referees.

Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] S.C.J. 18 at paras. 33-34.

[12]            The Umpire does not specifically address what standard of review he is applying to the decision of the Board of Referees. However, in looking through the decision it would appear that he has applied a standard of review of correctness. We say this because of the following:

"The claimant has not proven that special circumstances existed to establish that the damages settlement that she obtained is for a purpose other than loss of income. She has not established that it was for relinquishing her right to reinstatement."

Further, the Umpire said:

"It is apparent that the Board of Referees was influenced by the award made by the Board of Arbitration. It reached its decision without taking into account the onus on the claimant to prove the existence of "special circumstances" to lift the damages awarded the claimant out of the category of earnings. The Board, therefore, erred in law. Accordingly, I allow the appeal."


[13]            The Umpire made no reference to section 115 of the Employment Insurance Act, nor did he conclude that the Board's decision was based on any erroneous finding of fact made in a perverse or capricious manner. He did, however, find that the Board of Referees had erred in law.

[14]            We do not agree that the Board of Referees erred in law. The Umpire said that the error of law was in failing to take account of the onus on the claimant to prove that the damages were not earnings.    In our view the Umpire erred. The Board specifically referred to the fact that there was an onus on the claimant and concluded that this onus had been met in the circumstances of this case.

[15]            There was no finding by the Umpire that the findings of fact by the Board of Referees were made in a perverse or capricious manner or without regard to the material before it.

[16]            Further, this Court in Budhai v. Canada [2002] F.C.J. 1089 held that the standard of review to be applied by an Umpire to a decision involving fact and law of the Board of Referees was that of reasonableness. We conclude that the Umpire failed to apply the correct standard of review in assessing the decision of the Board of Referees and it is therefore our duty to assess the decision of the Board of Referees based on the standard of review of reasonableness as regards to question of fact and mixed law and fact, and correctness with respect to question of law.

[17]            On the issue of fact the Board said as follows:


"The Board accepts the Commission's contention that, if it is claimed that a settlement is not for compensation for loss of wages, the jurisprudence requires that evidence be brought forward to show it was for some other reason, i.e., the onus is on the claimant to show that the settlement or any portion of it was for something other than compensation for lost income. The Board accepts the evidence presented by the claimant that a portion of the award was for the payment of legal fees with the remainder for the relinquishing of the right for reinstatement, i.e., to allow her sufficient time to seek alternate work. The Board is of the opinion that the onus has been satisfactorily met."

[18]            We recognize that the Board of Referees was not bound in any way by the decision of the Arbitrators and we also acknowledge that the fact that the parties have attached a particular label to a given damage settlement is not conclusive. However, it appears oral evidence was given before the Board and we are unable to conclude that it was unreasonable for the Board to accept the evidence by the Applicant to the effect that the damages represented compensation for the relinquishment of the right to reinstatement. Indeed, there seems to have been little evidence, if any, that the award could represent anything else. In particular, there does not seem to be evidence before the Board of Referees to the effect that the damages represented loss of earnings.

[19]            This Court in Canada v. Plasse [2000] F.C.J. 1671 at paragraph 18, decided that a payment received for renunciation of a right to reinstatement does not constitute earnings under the Employment Insurance Regulations. The Board referred to this most recent relevant law and applied it correctly. We would observe that the Umpire did not refer to this law.


[20]            It is therefore our view that the Umpire erred in allowing the appeal from the Board of Referees.

[21]            We would therefore allow the Applicant's application, set aside the decision of the Umpire, and issue a declaration that the damages awarded to the Applicant by the Arbitration Board did not constitute earnings and therefore were not subject to allocation pursuant to the Employment Insurance Act.

[22]            We would therefore allow the application, set aside the decision of the Umpire, and remit the matter to the Chief Umpire for redetermination in accordance with these reasons.

[23]            The Applicant will have her costs of this application fixed at $1,500.00.

      "J. Edgar Sexton"           

J.A.


                                                    FEDERAL COURT OF APPEAL

                              NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                             A-140-03

STYLE OF CAUSE:                           NICOLE MEECHAN v. THE ATTORNEY GENERAL

OF CANADA

                                                                                   

PLACE OF HEARING:                     Edmonton, Alberta

DATE OF HEARING:                       October 2, 2003

REASONS FOR JUDGMENT BY: Sexton J.A.

CONCURRED IN BY: Rothstein, Sharlow, JJ.A.

DATED:                                                October 2, 2003            

APPEARANCES:

Ms. Yessy Byl                                                                               For the Applicant

Ms. Carla Lamash                                                                          For the Respondent

SOLICITORS OF RECORD:

Blair, Chahley, Seveny                                                                  For the Applicant

Edmonton, Alberta

Morris Rosenberg                                                                           For the Respondent

Deputy Attorney General of Canada


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Date Modified: 2014-08-26