FRANÇAIS

	Date:
	June 6, 1988
	Docket:
	A-715-87
	Umpire's Decision:
	CUB 14001

IN THE MATTER OF THE Unemployment Insurance Act, 1971;

AND IN THE MATTER OF a claim for a benefit by
ALLEN SILVER;

AND IN THE MATTER OF an appeal to an Umpire
from a decision of the Board of Referees given at
Willowdale, Ontario, on July 11, 1986.

THE ATTORNEY GENERAL OF CANADA,

applicant,

- and -

ALLEN SILVER,

respondent.

Heard at Toronto on Thursday, June 2, 1988

REASONS FOR JUDGMENT OF THE COURT
(Judgment rendered at Ottawa
on Monday, June 6, 1988)

This section 28 application was set down for viva voce hearing. Upon perusal of the record and the Memoranda of Fact and Law prior to the hearing, it became apparent to the Court that there was a problem which rendered a particular result inevitable. That result, as between the parties, is entirely neutral insofar as proceedings in this court are concerned. When the matter has been properly resolved by the Umpire, the right to seek judicial review will again arise. Accordingly, in the interests of economy, the Court requested the Registry to arrange a telephone conference hearing so that the problem might be discussed with the parties. They were advised that, in the absence of their agreement to the disposition which appeared to us inevitable, the application would, of course, be heard as scheduled.

The present application seeks to set aside a decision of an Umpire which allowed the Respondent’s appeal and set aside the decision of a Board of Referees. The Board had upheld the Commission’s determination that the Respondent had failed to establish his entitlement to Unemployment Insurance benefit in that he had not proved that he was unemployed. After becoming unemployed, the Respondent took a job as a car salesman on commission. He was scheduled by the dealer to work in the showroom six hours a day, five days a week. He was permitted and encouraged to work extra shifts. As found by the Umpire, paragraph 43(1)(b) and subsection 43(2) of the Unemployment Insurance Regulations are particular relevant.

43(1) Subject to subsections (2) and (3), where a claimant is

...

(b) employed in any employment other than that described in paragraph (a) in which he controls his working hours,

he shall be regarded as working a full week.

(2) Where a claimant is employed as described in subsection (1) and the Employment is so minor in extent that a person would not normally follow it as a principal means of livelihood, he shall, in respect of that employment, not be regarded as working a full working week.

The Board of Referees found that the Respondent "has control of his working hours as an automobile salesman and is not unemployed". The Umpire did not, in his reasons, question that finding but noted that the Board had "totally ignored the issue raised by Regulation 43(2)". The Umpire made no finding of fact on that issue but held that the Board’s failure to address it constituted an error in law. He set aside the Board’s decision, making no direction or other finding.

The powers of an Umpire are set out in section 96 of the Unemployment Insurance Act.

96. An Umpire may decide any question of law or fact that is necessary for the disposition of any appeal taken pursuant to section 95 and may dismiss the appeal, give the decision that the Board of Referees should have given, refer the matter back to the Board of Referees for rehearing or re-determination in accordance with such directions as he considers appropriate or confirm, rescind or vary the decision of the Board of Referees in whole or in part.

That is the present case. The effect of the Umpire’s decision, purportedly allowing the Respondent’s appeal, was simply to leave the Commission’s initial adverse determination in place subject to an undecided appeal to a Board of Referees.

The powers of this Court under Section 28 of the Federal Court Act are not as comprehensive as those of an Umpire under section 96 of the Unemployment Insurance Act. We cannot decide necessary questions of fact. The failure of the learned Umpire either to decide the necessary questions of fact and give the decision that, in his judgment, the Board should have given, or to refer the matter back to the Board with appropriate directions, amounted to a refusal of jurisdiction and is the basis upon which his decision must be set aside.

The section 28 application will be allowed. The matter will be referred back to the Umpire for reconsideration on a basis not inconsistent with these reasons.

"P.M. MAHONEY"

J.F.C.C.

"A.J. STONE"

J.F.C.C.

"B. LACOMBE"

J.F.C.C.