CUB 46122 / 46156 / 46160 / 46159 / 46157
JUDGMENT OF THE FEDERAL COURT OF APPEAL
Date:
20010209
Docket:
A-725-99 / A-722-99 /
A-723-99 / A-724-99 /
A-737-99
Neutral Citation:
2001 CAF 9
Umpire's Decision:
CUB 46122 / 46156 / 46160 / 46159 / 46157
"TRANSLATION"
CORAM :
DESJARDINS J.A.
DÉCARY J.A.
LÉTOURNEAU J.A.
BETWEEN :
A-725-99 (CUB 46122)
JOCELYNE VIEL,
plaintiff,
- and -
EMPLOYMENT INSURANCE COMMISSION,
defendant.
SIMONE MALENFANT,
plaintiff,
- and -
EMPLOYMENT INSURANCE COMMISSION,
defendant.
GUYLAINE OUELLET,
plaintiff,
- and -
EMPLOYMENT INSURANCE COMMISSION,
defendant.
GUYLAINE OUELLET,
plaintiff,
- and -
EMPLOYMENT INSURANCE COMMISSION,
defendant.
SIMONE MALENFANT,
plaintiff,
- and -
EMPLOYMENT INSURANCE COMMISSION,
defendant.
Hearing held at Québec, Quebec, on Thursday, February 1, 2001.
REASONS FOR JUDGMENT
(Ottawa, Ontario, Friday, February 9, 2001)
BY THE COURT:
[1] A majority of a board of referees found that the plaintiff Viel (case A-725-99) was a "claimant who is self-employed in farming" within the meaning of s. 57(6)(b) of the Unemployment Insurance Regulations and a "claimant who is self-employed in farming" within the meaning of s. 35(10)(b) of the Employment Insurance Regulations. Consequently, 15% of the gross income which the plaintiff received during his period of unemployment from the agricultural operations of the company which had employed him and in which he held 20% of the shares constituted earnings and should be distributed in the manner specified in ss. 58 and 36 of the said Regulations.
[2] The umpire Dubé upheld the board of referees’ decision. He disposed of the four other cases mentioned in the instant style of cause at the same time. Those cases were joined to the case at bar for hearing in this Court and judgment. It was agreed that the instant reasons would apply to each of those four cases.
[3] Essentially, the umpire relied on the judgment of this Court in Canada (Attorney General v. Bernier (1997), 211 N.R. 300 (F.C.A.). In particular, he cited this passage from the reasons of Marceau J.A. at 306:
[4] Over time, as the result of certain "constants" that have emerged from the decision of umpires, the application of these provisions has become more consistent and less uncertain. First, the legal status of the operation or business in which the self-employed person works is irrelevant. Second, the relative amount of time spent on the operation or business is irrelevant. Third, actually receiving income from the operation or business while unemployed is unnecessary, as the mere right to receive such income is sufficient.
[4] At 309 Marceau J.A. added:
Only a revised version of the provisions using less ambiguous language would make an enlightened intervention possible, if that were Parliament’s wish.
[5] For all practical purposes, counsel for the plaintiff is inviting the Court not to follow its decision in Bernier. This is an attractive argument which seeks to rely on the obvious deficiencies in drafting the Regulations. Marceau J.A. was well aware of those deficiencies when he wrote his reasons and took great care to reconcile them in the manner which seemed to him most coherent. Counsel for the plaintiff admitted at the hearing that the changes made by the Act and Employment Insurance Regulations to the relevant provision of the Act and Unemployment Insurance Regulations interpreted by Marceau J.A. were not significant.
[6] In the interests of legal stability, this Court will only reconsider its prior decisions in exceptional circumstances.
[7] As Jackett C.J. noted in Murray v. The Minister of Employment and Immigration, [1979] 1 F.C. 518 (F.C.A.), at 519-20:
In my view, such a recent decision of this Court, which is directly in point, should be followed even if, had the members of this Division constituted the division of the Court by whom it was decided, they might have decided it differently. In saying this, I am not applying the principle of stare decisis, which, in my view, does not apply, as such, in this Court. I am following what, in my view, is the proper course to follow from the point of view of sound judicial administration when a court is faced with one of its recent decisions. It would, of course, be different if the recent decision had been rendered without having the point in mind or, possibly, if the Court were persuaded that there was an obvious oversight in the reasoning on which it was based.
[8] This rule has subsequently been followed, in particular in M.E.I. v. Widmont, [1984] 2 F.C. 274 (F.C.A.), and in Janssen Pharmaceutical Inc v. Apotex Inc. (1997), 208 N.R. 395 (F.C.A.).
[9] There is no exceptional circumstance justifying reconsideration by the Court of the judgment in Bernier. In saying this, the Court should not be taken as expressing any doubt about the validity of Bernier. Absent any legislative or regulatory amendment, if there is still a different judicial outcome that the plaintiff may hope to obtain, it is not available in this Court.
[10] Accordingly, we consider that this application for judicial review should be dismissed, but in the circumstances without costs.
Alice Desjardins
J.A.
Robert Décary
J.A.
Gilles Létourneau
J.A.