Date: 20060613
Dockets: A-514-05
A-408-05
Citation: 2006 FCA
222
CORAM: DÉCARY J.A.
LÉTOURNEAU J.A.
NOËL
J.A.
BETWEEN:
NICOLE
WILLIAMS
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
Hearing held at Québec,
Quebec, on June 13, 2006.
Judgment
delivered from the bench at Québec, Quebec,
on June 13, 2006.
REASONS FOR JUDGMENT OF THE COURT BY: LÉTOURNEAU
J.A.
Date: 20060613
Dockets: A-514-05
A-408-05
Citation: 2006 FCA 222
CORAM: DÉCARY
J.A.
LÉTOURNEAU
J.A.
NOËL J.A.
BETWEEN:
NICOLE WILLIAMS
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered from the bench at Québec, Quebec, on June 13, 2006)
LÉTOURNEAU J.A.
[1]
The applicant
is challenging the initial decision (CUB 63735) of the Umpire Goulard, dated June 13, 2005, as well as the decision
dated August 11, 2005 (CUB 63735A). These decisions concern
an application to reconsider the initial decision. This application for reconsideration
was brought under section 120 of the Employment Insurance Act, S.C.
1996, c. 23.
[2]
It is not
necessary to reproduce this section. It is only necessary to sum up the gist of
it, that is to say, an umpire may rescind or amend his or her decision if new
facts are presented, if the decision was rendered before a material fact was
known or if the decision was rendered on the basis of a mistake concerning a
material fact.
[3]
The
initial decision concerns the apportionment of $15,000 received by the applicant
as severance pay for the employment she held. The Umpire rescinded the decision
of the Board of Referees to conclude first of all that these were earnings
within the meaning of subsection 35(2) of the Employment Insurance
Regulations, SOR/96-332 (Regulations). He then ruled that the allocation of
this amount should have been done in accordance with subsections 36(9) and
(10) of the Regulations and not pursuant to subsection 36(11), as the
Board of Referees had decided.
[4]
In our
opinion, the Umpire was correct in concluding that this was severance pay for
termination of employment. On the basis of Canada (Attorney General) v.
Savarie (1996), 205 N.R. 302 (F.C.A.), leave to appeal refused, [1996]
S.C.C.A No. 570 and Lemay v. Attorney General of Canada, 2005 FCA 433, the
method of allocation was governed at that time by subsections 36(9) and
(10) of the Regulations.
[5]
The Umpire
ruled that subsection 36(11) did not apply, because there was no evidence to
the effect that the $15,000 in severance pay was at the same time allocated for
specific weeks, as is required under the Regulations, and was the result of warranted
disciplinary action. We agree with him, as the agreement concluded between the
parties did not stipulate such measures in connection with this amount, and it
was not allocated to specific weeks.
[6]
As far as
the application for redetermination is concerned, we are not convinced that the
Umpire erred in rejecting the applicant’s submission to the effect that the
criteria under section 120 concerning an application for redetermination
were met.
[7]
In
addition, the applicant wanted to file a letter from her former employer, who
had been solicited by her after the Umpire’s decision had been rendered. This
letter repeated in part the phraseology of subsection 36(11) of the Regulations.
[8]
In our
opinion, the Umpire was correct in ruling that this evidence added nothing new
to what was already on record. In addition, it was in no way determinative with
regard to the application of subsection 36(11) of the Regulations to the facts
of the case.
[9]
Counsel
for the applicant requested that this Court allow him costs in these
applications for judicial review, as well as his extrajudicial fees, even if
the applicant’s applications should be dismissed. We are of the opinion that
nothing warrants departing from the rule which provides that costs are allowed
according to the outcome of the case.
[10]
For these
reasons, the applications for judicial review in dockets A-514-05 and A-408-05 will
be dismissed but with only one set of costs. However, the respondent will be
entitled to his disbursements in each of the two cases.
“Gilles
Létourneau”
Certified
true translation
Michael
Palles
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKETS: A-514-05
and A-408-05
STYLE OF CAUSE: NICOLE
WILLIAMS v. ATTORNEY
GENERAL OF CANADA
PLACE OF HEARING: Québec, Quebec
DATE OF HEARING: June 13, 2006
REASONS FOR JUDGMENT DÉCARY
J.A.
OF THE COURT: LÉTOURNEAU J.A.
NOËL J.A.
DELIVERED FROM THE BENCH: LÉTOURNEAU J.A.
APPEARANCES:
André Lemay
|
FOR THE APPLICANT
|
Carole
Bureau
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
Tremblay, Bois,
Mignault et Lemay
Sainte-Foy, Quebec
|
FOR THE APPLICANT
|
John H. Sims,
Q.C.
Deputy Attorney General of Canada
|
FOR THE
RESPONDENT
|