A-101-11
2012 FCA 156
Tembec Industries Inc. (Applicant)
v.
Leonard Berthelette, Henry Dubé, Randolph Druzyk, Clifford Houston, David Torres, Canada Employment Insurance Commission, Office of the Umpire, Employment Insurance Act and the Attorney General of Canada (Respondents)
Indexed as: Tembec Industries Inc. v. Berthelette
Federal Court of Appeal, Pelletier, Dawson and Stratas JJ.A.—Winnipeg, March 14; Ottawa, May 29, 2012.
Employment Insurance –– Practice — Judicial review of umpire’s decisions setting aside Board of Referees’ decisions denying five individual respondents (respondent employees) employment insurance benefits, allowing appeals thereof — Applicant locking out bargaining unit employees but lock-out ordered terminated — Thereafter, respondent employees claiming employment insurance benefits under Employment Insurance Act but claims denied pursuant to Act, s. 36(1) — When respondent employees appealing denial of benefits to Board of Referees, Canada Employment Insurance Commission’s initial position being that applicant’s employees not entitled to receiving employment insurance benefits — Commission subsequently changing position, conceding appeal in respondent employees’ favour — Applicant not notified of appeals before Umpire or of Commission’s change of position — Whether, under Act or Employment Insurance Regulations, applicant entitled to receiving notice of appeals to Umpire brought by respondent employees; applicant’s standing in present case also addressed — Per Dawson J.A. (Pelletier J.A. concurring): Regulations distinguishing between entities “interested” in appeal, those having “direct interest” therein — Persons “interested” in appeal entitled to participate before Board of Referees, to be notified in writing of Board of Referees’ decision (Regulations, s. 83(4)) — Issue of whether employer constituting “interested party” within Regulations, ss. 83(4), 85(3)(c) determined — Given employer’s statutory right to appeal Commission decision involving employees to Board of Referees (Act, s. 114), statutory right to appeal “as of right” Board of Referees’ decision to umpire (Act, s. 115), employer therefore “interested party” within Regulations, ss. 83(4) 85(3)(c) — Thus, applicant entitled to notification of all decisions rendered by Board of Referees regarding employees, entitled to receiving docket prepared by Commission filed with Umpire — Failure to comply with Regulations, ss. 83(4), 85(3)(c) violating procedural rights owed to applicant — Finally, because procedural rights afforded to applicant by Regulations violated, applicant directly affected by Umpire’s decisions herein so as to have standing under Federal Courts Act, s. 18.1(1) — Application allowed — Per Stratas J.A. (dissenting): Only persons having real, legitimate interest in matter may appeal under Act, s. 115(1) — On facts of present case, applicant having no legitimate or real interest before Umpire — Therefore, applicant not entitled to notice of Board of Referees’ decision, not having right to appeal therefrom — Also not having sufficient direct standing to challenge Umpire’s decision in Federal Court.
This was an application for judicial review of an umpire’s decisions setting aside the Board of Referees’ decisions denying the five individual respondents (respondent employees) employment insurance benefits and allowing their appeals. The applicant operated a newsprint mill in Manitoba and employed the respondent employees at the newsprint mill. When the collective agreement between the applicant and the bargaining agent representing some of its employees, including the respondent employees, expired, the applicant locked out the bargaining unit employees who were employed at the mill. The Manitoba Labour Board ordered the applicant to terminate immediately the lock-out. Following the lock-out, the respondent employees claimed employment insurance benefits under the Employment Insurance Act but their claims to employment insurance benefits for a specific period were denied pursuant to subsection 36(1) thereof. The respondent employees appealed the denial of benefits to the Board of Referees and the applicant received notice of the hearings. The Canada Employment Insurance Commission was initially of the position that the applicant’s employees were not entitled to receive employment insurance benefits by operation of subsection 36(1) of the Act. A majority of the Board of Referees dismissed one of the respondent employee’s claim for benefits and upheld the Commission’s decision regarding the four other respondent employees. The respondent employees appealed the decisions of the Board of Referees denying them benefits to an umpire and the applicant was not given notice of these appeals. Before the appeal hearing, the respondent employees were advised by the Commission that it would be recommending that the appeals be allowed and conceded in their favour. The applicant was not advised of the Commission’s change of position. The Umpire set aside the Board of Referee’s decision regarding one of the respondent employees and rendered identical decisions regarding the four remaining respondent employees. The Office of the Umpire notified the applicant in writing of these decisions and the applicant applied for judicial review of those decisions. The respondent employees argued that the applicant did not have standing, as required by subsection 18.1(1) of the Federal Courts Act, to bring this application.
The main issue was whether, under the Act or the Employment Insurance Regulations, the applicant was entitled to receive notice of the appeals to the Umpire brought by the respondent employees despite the fact that it did not appear before the Board of Refugees. The issue of whether the applicant had standing as required by subsection 18.1(1) of the Federal Courts Act to bring this application was also addressed.
Held (Stratas J.A. dissenting), the application should be allowed.
Per Dawson J.A. (Pelletier J.A. concurring): Based on subsections 114(1) and 115(1) of the Act, either the respondent employees or the applicant could appeal adverse decisions of the Commission and the Board of Referees and both parties brought appeals to the Umpire from decisions of the Board of Referees. A review of the Regulations showed that a distinction is drawn between entities that are “interested” in an appeal and those that have a “direct interest” in an appeal. Persons “interested” in an appeal are entitled to participate before the Board of Referees and to be notified in writing of the decision of the Board of Referees (subsection 83(4) of the Regulations). In this application, it had to be determined whether an employer is an “interested” party within the contemplation of subsection 83(4) and paragraph 85(3)(c) of the Regulations. The Act places no limitation on the right of a claimant’s employer to appeal to the Board of Referees or the Umpire. Given the employer’s statutory right to appeal a decision of the Commission involving one of its employees to the Board of Referees (section 114 of the Act) and its statutory right to appeal “as of right” a decision of the Board of Referees to the umpire (section 115 of the Act), an employer is therefore an interested party within the contemplation of subsection 83(4) and paragraph 85(3)(c) of the Regulations. It follows that the applicant was entitled to notification of all decisions rendered by the Board of Referees with respect to its employees and was entitled to receive the docket prepared by the Commission and filed with the Umpire. The failure to comply with subsection 83(4) and paragraph 85(3)(c) of the Regulations violated procedural rights owed to the applicant.
Finally, because procedural rights afforded to the applicant by the Regulations were violated, it was directly affected by the decisions of the Umpire at issue so as to have standing under subsection 18.1(1) of the Federal Courts Act.
Per Stratas J.A. (dissenting): Subsection 115(1) of the Act sets out that an “appeal as of right to an umpire” from a board of referees’ decision may be brought, inter alia, by “the employer of the claimant”. However, this does not mean that every employer can avail itself of an appeal concerning any matter in the Act. Persons may appeal under subsection 115(1) only if they have a real, legitimate interest in the matter.
In this case, although the applicant said that it had a right to notice of the Board of Referees’ decision and a right to appeal therefrom, it did not seek judicial review of the Board’s decision and was bound by it, absent special considerations which it did not raise here. Any attempt by the applicant before the Umpire to challenge the Board’s decision would be a collateral attack against it and an abuse of process. On the facts of this case, therefore, the applicant had no legitimate or real interest before the Umpire; it was a busybody. Properly interpreted, the legislation does not require that notice of anything be given to busybodies, nor does it give participatory rights thereto. Therefore, the applicant was not entitled to notice of the Board of Referees’ decision and had no right to appeal from it. It also did not have sufficient direct standing to challenge the Umpire’s decision in the Federal Court under section 18.1 of the Federal Courts Act.
STATUTES AND REGULATIONS CITED
Employment Insurance Act, S.C. 1996, c. 23, ss. 36(1), 39(1), 114, 115.
Employment Insurance Regulations, SOR 96-332, ss. 80, 83(1),(4), 85, 86(1),(2), 87(1).
Federal Courts Act, R.S.C., 1985, c. F-7, ss. 1 (as am. by S.C. 2002, c. 8, s. 14), 18.1(1) (as enacted by S.C. 1990, c. 8, s. 5; 2002, c. 8, s. 27).
Federal Courts Rules, SOR/98-106, rr. 1 (as am. by SOR/2004-283, s. 2), 407, Tariff B, Column III.
CASES CITED
considered:
United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 3-1375 and Tembec Industries Inc.(In the Matter of an Application by), Case No. 339/09/LRA, Order No. 1474; Hy and Zel’s Inc. v. Ontario (Attorney General); Paul Magder Furs Ltd. v. Ontario (Attorney General), [1993] 3 S.C.R. 675, (1993), 107 D.L.R. (4th) 634, 18 C.R.R. (2d) 99; Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R. 607, (1986), 33 D.L.R. (4th) 321, [1987] 1 W.W.R. 603; Steel v. Canada (Attorney General), 2011 FCA 153, [2013] 1 F.C.R. 143, 94 C.C.E.L. (3d) 86, 418 N.R. 327.
referred to:
League for Human Rights of B'nai Brith Canada v. Canada, 2010 FCA 307, 93 Imm. L.R. (3d) 1, 409 N.R. 298; Rothmans of Pall Mall Canada Ltd. v. Minister of National Revenue, [1976] 2 F.C. 500, (1976), 67 D.L.R. (3d) 505, [1976] C.T.C. 339 (C.A.); Canadian Council of Churches v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 236, (1992), 88 D.L.R. (4th) 193, 2 Amin. L.R. (2d) 229; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, (1999), 174 D.L.R. (4th) 193, 14 Admin. L.R. (3d) 173; Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, (1989), 57 D.L.R. (4th) 231, [1989] 3 W.W.R. 97; Solosky v. The Queen, [1980] 1 S.C.R. 821, (1979), 105 D.L.R. (3d) 745, 50 C.C.C. (2d) 495; Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, [2012] 1 S.C.R. 23, 342 D.L.R. (4th) 257, 99 C.P.R. (4th) 65; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, (1998), 36 O.R. (3d) 418, 154 D.L.R. (4th) 193; Abrahams v. Attorney General of Canada, [1983] 1 S.C.R. 2, (1983), 142 D.L.R. (3d) 1, 46 N.R. 185; Chrysler Canada Ltd. v. Canada (Competition Tribunal), [1992] 2 S.C.R. 394, (1992), 92 D.L.R. (4th) 609, 12 Admin. L.R. (2d) 1; Canadian Pacific Air Lines Ltd. v. Canadian Air Line Pilots Assn., [1993] 3 S.C.R. 724, (1993), 108 D.L.R. (4th) 1, 17 Admin. L.R. (2d) 141; Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460, 201 D.L.R. (4th) 193, 34 Admin. L.R. (3d) 163; R. v. Consolidated Maybrun Mines Ltd., [1998] 1 S.C.R. 706, (1998), 38 O.R. (3d) 576, 158 D.L.R. (4th) 193; Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, 232 D.L.R. (4th) 385, 17 C.R. (4th) 276; Minott v. O'Shanter Development Co. (1999), 42 O.R. (3d) 321, 168 D.L.R. (4th) 270, 40 C.C.E.L. (2d) 1 (C.A.); Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202, (1994), 115 Nfld. & P.E.I.R. 334, 111 D.L.R. (4th) 1; MiningWatch Canada v. Canada (Fisheries and Oceans), 2010 SCC 2, [2010] 1 S.C.R. 6, 315 D.L.R. (4th) 434, 99 Admin. L.R. (4th) 1; Stemijon Investments Ltd. v. Canada (Attorney General), 2011 FCA 299, 341 D.L.R. (4th) 710, [2012] 1 C.T.C. 207, 2011 DTC 5169.
APPLICATION for judicial review of five umpire’s decisions ((2010), CUB 75657; (2010), CUB 75976; (2010), CUB 75977; (2010), CUB 75978; (2010), CUB 75979) setting aside the Board of Referees’ decisions denying the five individual respondents employment insurance benefits and allowing their appeals. Application allowed, Stratas J.A. dissenting.
APPEARANCES
David A. Simpson for applicant.
Margaret McCabe and Mary Softley for respondent Attorney General of Canada.
Paula Turtle for respondents Leonard Berthelette et al.
SOLICITORS OF RECORD
Fillmore Riley LLP, Winnipeg, for applicant.
Deputy Attorney General of Canada for respondent Attorney General of Canada.
United Steelworkers, Toronto, for respondents Leonard Berthelette et al.
The following are the reasons for judgment rendered in English by
[1] Dawson J.A.: The principal issue raised on this application for judicial review is whether an employer who does not appear before the Board of Referees on an appeal brought by an employee from a decision of the Canada Employment Insurance Commission (Commission) is entitled to notice of any appeal taken from the decision of the Board of Referees. The issue arises in the following context.
The Facts
[2] Tembec Industries Inc. (Tembec) operated a newsprint mill in Powerview-Pine Falls, Manitoba. Tembec employed the five individual respondents (respondent employees) at the newsprint mill.
[3] An existing collective agreement between Tembec and the bargaining agent which represented some of its employees (including the respondent employees) expired on August 31, 2009. On September 1, 2009, Tembec locked-out the bargaining unit employees who were employed at the mill. By order dated January 13, 2010, the Manitoba Labour Board ordered Tembec to immediately terminate the lock-out.
[4] Following the lock-out, the respondent employees claimed employment insurance benefits under the Employment Insurance Act, S.C. 1996, c. 23 (Act). Their claims to employment insurance benefits for the period from September 1, 2009 to January 13, 2010 were denied pursuant to subsection 36(1) of the Act which states:
| Labour disputes |
36. (1) Subject to the regulations, if a claimant loses an employment, or is unable to resume an employment, because of a work stoppage attributable to a labour dispute at the factory, workshop or other premises at which the claimant was employed, the claimant is not entitled to receive benefits until the earlier of (a) the end of the work stoppage, and (b) the day on which the claimant becomes regularly engaged elsewhere in insurable employment. [Emphasis added.] |
[5] The respondent employees appealed the denial of benefits to the Board of Referees. Tembec received notice of the hearings before the Board of Referees, but did not attend the hearings. Previously, the Board of Referees had dismissed appeals brought by similarly situated Tembec employees. The Commission had previously taken the position before the Board of Referees, and continued to take the position, that Tembec’s employees were not entitled to receive employment insurance benefits by operation of subsection 36(1) of the Act.
[6] On July 19, 2010, a majority of the Board of Referees dismissed Mr. Berthelette’s claim for benefits. One member of the Board dissented, relying upon Order No. 1474 [United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 3-1375 and Tembec Industries Inc. (In the Matter of an Application by), Case No. 339/09/LRA] issued by the Manitoba Labour Board. In Order No. 1474 the Manitoba Labour Board had noted Tembec’s position that it intended [at paragraph 17] “to exit the newsprint mill at Pine Falls […] and that it [did] not intend to operate the Pine Falls site as a going concern.” Relying upon this, the dissenting member reasoned (emphasis added):
A reasonable person can only conclude that in the case of Tembec Industries, the employer has effectively abandoned its role as employer insofar as it is contemplated in the Act and the application of subsection 36(1), and the so-called lockout of Tembec workers on September 1, 2009 was actually a layoff or the beginning of operations windup, with the remote possibility of a sale to a potential buyer.
I find that the lockout of September 1, 2009 was not based on a genuine labour dispute, but was actually an indefinite layoff or even the beginning of the operation’s windup.
I find that the Commission should not have applied subsection 36(1) to the claimant.
[7] Boards of Referees, in majority decisions, upheld the decisions of the Commission in respect of the four other respondent employees.
[8] On August 11, 2010, the Board of Referees rendered three decisions involving Tembec employees in which the Board of Referees found the employees were entitled to employment insurance benefits (the adverse decisions).
[9] On August 31, 2010, the respondent employees appealed the decisions of the Board of Referees denying them benefits to an umpire. Tembec was not given notice of these appeals.
[10] On October 8, 2010, Tembec appealed the adverse decisions to an umpire.
[11] On October 13, 2010, before a hearing date was set for the appeals brought by the respondent employees, the Commission advised them (emphasis added):
The Commission has reviewed the Board of Referees’ decision which you appealed to the Umpire. While the final decision rests with the Umpire, the Commission will recommend that your appeal be allowed.
Appeals which are decided by the Umpire on the basis of the written information alone are usually finalized sooner than cases on which an oral hearing has been requested. Therefore, your agreement to withdraw your request for an oral hearing should hasten the final decision in your case. A form and return envelope are enclosed for your convenience.
In order to speed up the appeal process, we are also prepared to advise the Umpire in writing that the Commission wishes to concede the appeal in your favour. Upon receiving the completed enclosed form, we will forward it with a memorandum advising the Umpire of the Commission’s concession.
[12] Copies of this letter were sent to the Registrar of the Office of the Umpire and to the Community Unemployed Help Centre (an entity which was assisting the respondent employees). Tembec was not advised of the Commission’s change of position, notwithstanding that it had three appeals pending before an umpire.
[13] On November 15, 2010, the Chief Umpire Designate (Umpire) rendered the following decision in Mr. Berthelette’s appeal (CUB 75657 [U.I.(Re)]):
Having reviewed the material that was before the Board of Referees and considered the Commission’s decision to concede this appeal in favour of the claimant, I hereby set aside the Board of Referees’ decision and allow the claimant’s appeal.
[14] The Office of the Umpire provided a copy of this decision to Tembec under cover of a letter dated November 18, 2010.
[15] The Umpire rendered identical decisions in the appeals of the four remaining respondent employees on December 17, 2010 (CUB 75976 [M.U. (Re)]; CUB 75977 [N.H. (Re)]; CUB 75978 [M.D. (Re)]; and CUB 75979 [H.X. (Re)]). Copies were provided to Tembec by letters dated December 29, 2010.
[16] These are the five orders of the Umpire under review in this application for judicial review. By order dated April 19, 2011, this Court gave leave for all five orders to be challenged in this one application.
The Issues
[17] Tembec frames the issue to be whether the decisions of the Umpire should be set aside on the basis that its rights to procedural fairness and natural justice were violated as a result of the failure of the Commission or the Office of the Umpire to provide it with notice of the appeals brought to the Umpire by the respondent employees.
[18] The respondent employees also raise an issue. They argue that Tembec does not have standing to bring this application because it is not directly affected by the orders under review, as required by subsection 18.1(1) [as enacted by S.C. 1990, c. 8, s. 5; 2002, c. 8, s. 27] of the Federal Courts Act [R.S.C., 1985, c. F-7, s. 1 (as am. idem, s. 14)].
[19] In my view, the central question raised on this application is whether under the Act or the Employment Insurance Regulations, SOR/96-332 (Regulations) Tembec was entitled to receive notice of the appeals to the Umpire brought by the respondent employees. I will consider this issue before dealing with the contention that Tembec lacks standing.
Consideration of the Issues
[20] The Act describes in subsections 114(1) and 115(1) respectively who may appeal a decision of the Commission to the Board of Referees and who may appeal a decision of the Board of Referees to an umpire:
| Appeal to board of referees |
114. (1) A claimant or other person who is the subject of a decision of the Commission, or the employer of the claimant, may appeal to the board of referees in the prescribed manner at any time within (a) 30 days after the day on which a decision is communicated to them; or (b) such further time as the Commission may in any particular case for special reasons allow. … |
| Appeal to umpire |
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. [Emphasis added.] |
[21] In this case, either the respondent employees or Tembec could appeal adverse decisions of the Commission and the Board of Referees, and indeed both the respondent employees and Tembec brought appeals to the Umpire from decisions of the Board of Referees.
[22] The Regulations then prescribe how appeals to the Board of Referees and to an umpire are to be perfected. Section 80 of the Regulations allows both claimants and employers to apply for a hearing before a Board of Referees irrespective of which party commenced the appeal. A Board of Referees “shall give each of the parties interested in an appeal a reasonable opportunity to make representations concerning any matter before the board” (subsection 83(1) of the Regulations). The appellant “and any other party interested in an appeal” are to be notified in writing of the Board of Referees’ decision (subsection 83(4) of the Regulations).
[23] Sections 85 and subsections 86(1), 86(2) and 87(1) of the Regulations deal with appeals to the umpire and state:
85. (1) An appeal brought by the Commission pursuant to section 115 of the Act shall
(a) be made in writing;
(b) contain a statement of the grounds of appeal; and
(c) be filed at the office of the umpire.
(2) An appeal pursuant to section 115 of the Act at the instance of a claimant, an employer, an association of which the claimant or employer is a member or any other person who is the subject of the decision of a board of referees shall
(a) be made in writing;
(b) contain a statement of the grounds of appeal; and
(c) be filed at the office of the Commission at which that decision was communicated pursuant to subsection 83(3).
(3) Where an appeal referred to in subsection (1) or (2) is filed, the Commission shall, within 60 days after the day on which it is filed,
(a) prepare a docket containing
(i) a copy of the appeal,
(ii) all documents that have been considered by the board of referees during the appeal,
(iii) the transcript, if any, of the evidence given before the board of referees during the appeal, and
(iv) the written decision of the board of referees;
(b) file the docket at the office of the umpire; and
(c) mail copy of the docket to each interested party.
(4) The Commission may file a statement of observations and representations in connection with an appeal at the office of the umpire and mail a copy thereof to each interested party, within the time provided by subsection (3) or such further time as the umpire may allow under section 116 of the Act.
(5) The appellant or any person or association that has a direct interest in an appeal or the decision thereon may, within 15 days after the day on which the docket referred to in subsection (3) is filed or within such further time as the umpire may allow under section 116 of the Act, file a statement of observations and representations at the office of the Commission where the appeal was filed, and the Commission shall forward the statement forthwith to the umpire.
(6) The question as to whether any person or association has a direct interest in an appeal referred to in subsection (1) or (2) or the decision thereon shall be decided by the umpire.
(7) Subject to section 86, the umpire may, at any time after the period of time referred to in subsection (5), render a decision on the basis of the documents filed.
…
86. (1) The appellant, the Commission or any person or association having a direct interest in a decision of a board of referees or an appeal from such a decision may apply in writing to an umpire for a hearing and the umpire shall, after receiving the application, grant a hearing.
(2) Notwithstanding subsection (1), the umpire may at any time direct that there shall be a hearing.
…
87. (1) A decision of an umpire shall be given in writing and a copy of the decision shall be sent to
(a) the appellant;
(b) the Commission;
(c) any person or association having a direct interest in the decision; and
(d) such other persons or associations as the umpire may direct. [Emphasis added.]
[24] Relevant points to be taken from these provisions are that:
i. After a claimant or the claimant’s employer have filed an appeal from a decision of the Board of Referees, the Commission is to prepare a docket containing specified material and this docket is to be mailed “to each interested party” (paragraph 85(3)(c)).
ii. The Commission is to mail a copy of any statement of observations it files “to each interested party” (subsection 85(4)).
iii. Once that is done “[t]he appellant or any person or association that has a direct interest in an appeal or the decision thereon” may file a statement of observations and representations (subsection 85(5)).
iv. Any dispute as to whether any person or association has “a direct interest in an appeal … shall be decided by the umpire” (subsection 85(6)).
v. An appellant, the Commission or any person or association having a direct interest in a decision of a Board of Referees or an appeal from such a decision may apply to an umpire for a hearing (subsection 86(1)).
vi. Once rendered, a decision of an umpire shall be sent to persons including the appellant, the Commission and “any person or association having a direct interest in the decision” and “such other persons or associations as the umpire may direct” (subsection 87(1)).
[25] This review of the Regulations shows that a distinction is drawn between entities that are “interested” in an appeal and those that have a “direct interest” in an appeal. Persons “interested” in an appeal are entitled to participate before the Board of Referees and to be notified in writing of the decision of the Board of Referees (subsection 83(4)). They are also entitled to receive a docket and any statement of observations and representations filed by the Commission (paragraph 85(3)(c) and subsection 85(4)). An appellant and persons or associations having a “direct interest in an appeal” are entitled to participatory rights before the umpire (subsection 85(5)).
[26] In the present application, the question then becomes whether an employer is an “interested” party within the contemplation of subsection 83(4) and paragraph 85(3)(c) of the Regulations.
[27] The Act places no limitation on the right of a claimant’s employer to appeal to the Board of Referees or the umpire. A claimant’s employer is given an “appeal as of right to an umpire”. The appeal as of right is not predicated in any way upon the employer having participated before the Board of Referees.
[28] Given an employer’s statutory right to appeal a decision of the Commission involving one of its employees to the Board of Referees (section 114 of the Act) and its statutory right to appeal “as of right” a decision of the Board of Referees to the umpire (section 115 of the Act), I conclude that an employer is an interested party within the contemplation of subsection 83(4) and paragraph 85(3)(c) of the Regulations.
[29] It follows from this conclusion that Tembec was entitled to notification of all decisions rendered by the Board of Referees with respect to its employees and was entitled to receive the docket prepared by the Commission and filed with the Umpire. The failure to comply with subsection 83(4) and paragraph 85(3)(c) of the Regulations violated procedural rights owed to Tembec.
[30] Because the decisions of the Umpire at issue in this application were rendered in violation of Tembec’s procedural rights, these decisions should be set aside so as to afford Tembec the opportunity to exercise its rights under the Act and the Regulations.
[31] In so deciding, it is not necessary for me to consider, and I do not consider, whether Tembec has any direct interest in the appeals to the Umpire. If Tembec’s standing is put in issue, that will be a matter to be determined by the Umpire. It is sufficient for the purpose of this application to find that Tembec has the rights set out above, which will enable it to address any issue that may arise about whether it has a direct interest in the appeals.
[32] It further follows that because procedural rights afforded to Tembec by the Regulations were violated, it was directly affected by the decisions of the Umpire at issue so as to have standing under subsection 18.1(1) of the Federal Courts Act. At the least, the Umpire’s decision precluded Tembec from being able to argue that it had a direct interest in the issue before the Umpire.
Conclusion
[33] For these reasons, I would allow the application for judicial review and would set aside the decisions of the Chief Umpire Designate, with costs payable to Tembec by the Attorney General of Canada. While Tembec sought costs on a solicitor client basis there is nothing in the record to warrant departure from Rule 407. I would therefore order that, if not agreed, the costs be assessed in accordance with column III of the table to Tariff B of the Federal Courts Rules [SOR/98-106, r. 1 (as am. by SOR/2004-283, s. 2)].
Pelletier J.A.: I agree.
* * *
The following are the reasons for judgment rendered in English by
[34] Stratas J.A. (dissenting): I agree with my colleague’s statement of the facts and issues. My colleague has proceeded on the basis that the standard of review is correctness and I agree with that. I also agree that the plain wording of the relevant legislative text is our proper starting point. However, the structure and purpose of this legislation lead me to a different interpretation of it. Further, in a small way, but significant for the outcome of this appeal, I read the legislative text somewhat differently from my colleague.
[35] For these reasons, I reach a different result. I would dismiss Tembec’s application for judicial review, with costs.
A. Can any employer always appeal from every decision of a Board of Referees?
[36] Under subsection 115(1) of the Act, an “appeal as of right to an umpire” from a decision of a Board of Referees “may be brought” by “the employer of the claimant” and others. Does that mean that an employer can appeal to the umpire from every decision of the Board of Referees involving an employee? Does the word “may” in subsection 115(1) have any significance?
[37] In my view, the structure of the Act sheds light on these questions. Many different issues can arise under the Act. Many are potentially appealable under subsection 115(1) of the Act. On some of those issues the employer has an interest, others not.
[38] For example, employers have an interest in fines levied against them by the Commission (e.g. subsection 39(1) of the Act), but they have no interest in whether an employee has shown “just cause” for applying late for benefits.
[39] Parliament could have written specific appeal provisions into the Act that prescribe who may appeal on a particular issue (i.e., who has a real interest in the issue), how interested parties can intervene, and so on. But given the large number of issues that arise under the Act, that would create a forest of provisions setting out a number of appellate codes that would apply in different cases.
[40] Another approach, the one I say Parliament adopted in sections 111 to 123 of the Act, is to enact one set of compendious provisions specifying general rules for appeals that potentially, but do not necessarily, apply in a particular case. While, as a general matter, employers “may” appeal a matter under subsection 115(1), whether or not they can appeal a particular matter depends on whether they have standing to appeal.
[41] The concept of standing is well-established in our system of justice. Only those with a real and legitimate interest in a matter can maintain proceedings or get notice of proceedings.
[42] This concept of standing exists right across the board, in judicial, administrative and regulatory proceedings: League for Human Rights of B'Nai Brith Canada v. Canada, 2010 FCA 307, 93 Imm. L.R. (3d) 1; and Rothmans of Pall Mall Canada Ltd. v. Minister of National Revenue, [1976] 2 F.C. 500 (C.A.) (in order to have direct standing, a litigant must demonstrate an effect on its legal rights, the imposition of legal obligations upon it, or some prejudicial effect on it ); Hy and Zel’s Inc. v. Ontario (Attorney General); Paul Magder Furs Ltd. v. Ontario (Attorney General), [1993] 3 S.C.R. 675; Canadian Council of Churches v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 236; and Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R. 607 (the requirement of “standing” exists to screen out, in the words of the Supreme Court “busybodies”); Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at paragraph 25 (real and legitimate interests boost the entitlement to notice and participation); Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342 (real and legitimate interests, among other things, must be in play in order for a case to be advanced, absent public interest considerations); Solosky v. The Queen, [1980] 1 S.C.R. 821 (declarations can only be granted for real concerns, not hypothetical concerns).
[43] Given the fundamental role played by standing in our system of justice, we must assume subsection 115(1) of the Act, the compendious appeal provision, was enacted alongside the requirement of standing. Subsection 115(1) of the Act does not oust the requirement of standing.
[44] Accordingly, subsection 115(1) of the Act does not mean that every employer can avail itself of an appeal concerning any matter in the Act. Subsection 115(1) does not pave over the fundamental concept that only people with a real, legitimate interest in the matter can get notice of decisions or have standing to maintain proceedings. Persons may appeal under subsection 115(1) only if they have a real, legitimate interest in the matter.
B. Implications of this interpretation
[45] Under this interpretation, I see four different times when the employer’s lack of standing might end the matter, subject to later judicial review by the employer.
[46] First, an employer who does not have a real, legitimate interest in a matter is not a “party interested in an appeal” and, therefore, need not be given notice of the decision of the board of referees under subsection 83(4) of the Regulations.
[47] Nevertheless, an employer might find out about a decision of the board of referees and try to file an appeal to the umpire under subsection 85(3) of the Regulations. In that case, there are three more times when the employer’s lack of standing might end the matter, subject to a later judicial review:
• Under subsection 85(3) of the Regulations, the Commission is obligated to prepare the record of appeal, known as a “docket,” circulate it to interested parties, and file it with the umpire—but only where there is an “appeal.” If it is evident to the Commission from the grounds listed in the employer’s notice of appeal that the employer has no real, legitimate interest in the appeal, the Commission may conclude that there is no valid “appeal.” In those circumstances, it is not obligated to do anything further and the employer’s attempted appeal ends there.
• If the Commission overlooks the employer’s lack of real, legitimate interest, circulates the “docket” to interested parties and files it with the umpire, the umpire might have an immediate concern about the employer’s standing to appeal under subsection 115(1) of the Act. In that circumstance, the umpire may hold an immediate and early hearing on the issue and might decide against the employer’s standing to appeal: subsection 86(2) of the Regulations.
• If the umpire does not address the employer’s standing under subsection 115(1) of the Act at the outset, any responding party to the appeal may challenge the employer’s standing as part of its submissions regarding the merits of the appeal, and the umpire may rule on the issue.
[48] To the extent that an employer has a real, legitimate interest in a matter but was not given notice of the board of referees’ decision, the umpire might still grant participatory rights under subsection 83(4), subsection 85(5), or paragraph 85(3)(c) of the Regulations. If those rights were not afforded and they should have been, the employer would be able to bring an application for judicial review of the umpire’s decision.
C. The contrary interpretation
[49] A contrary interpretation of the legislation is that subsection 115(1) allows any employer, indeed any potential appellant listed in the subsection, to appeal to the umpire in any situation. Once the appeal is launched, however, section 85 of the Regulations explicitly allows the umpire to prevent an employer with no real and legitimate interest in the matter from making representations. I reject this contrary interpretation.
[50] Under subsection 85(5) of the Regulations, “[t]he appellant [e.g., the employer] or any person or association that has a direct interest in an appeal or the decision thereon” can make representations. Does the phrase “that has a direct interest in an appeal or the decision thereon” modify “any person or association” or both “the appellant” and “any person or association”? In other words, does the requirement of a “direct interest” apply to “the appellant”?
[51] In my view, no. Subsection 85(6) of the Regulations shows this. It provides that the umpire decides the question as to whether “any person or association” has “a direct interest in an appeal referred to in subsection (1) or (2).” Subsection 85(6) does not empower the umpire to decide whether “the appellant” has a direct interest in the appeal.
[52] Further confirmation of this is seen elsewhere in the Regulations. The umpire is to give his decision to “any person or association having a direct interest in the decision”: paragraph 87(1)(c) of the Regulations. The umpire must also give “the appellant” the decision: paragraph 87(1)(a) of the Regulations. The word “appellant” is not modified by the phrase “having a direct interest in the decision.”
[53] Therefore, section 85 of the Regulations does not explicitly allow the umpire to prevent an employer with no real and legitimate interest in the matter from making representations.
D. My interpretation vs. the contrary interpretation: does it matter?
[54] Assuming for the moment that both the interpretation I have adopted and what I have called “the contrary interpretation” are plausible, one might ask what turns upon them. After all, under each interpretation, employers without any real, legitimate interest are screened out.
[55] In my view, much does turn upon them. The difference between the two is when an appellant without any real, legitimate interest—what the Supreme Court in Hy and Zel’s, Canadian Council of Churches and Finlay calls a “busybody”—might be screened out, and how many opportunities exist for screening the busybody out.
[56] My interpretation has the virtue of screening out a busybody as soon as possible and as much as possible. It could happen as a result of the busybody never getting notice of the decision of the board of referees. Or it could happen at the outset when the Commission prepares the “docket.” Or it could happen soon after the umpire receives the appeal and perceives a problem with the appellant’s standing. Or it could happen later as a result of a responding party’s submissions to the umpire on the merits. Under the contrary interpretation, there is only one time that a busybody might be screened out, if at all.
[57] My interpretation is consistent with the overall objectives of the Act. In engaging in legislative interpretation, we must have regard to them: Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, [2012] 1 S.C.R. 23, at paragraph 64; Re Rizzo & Rizzo Shoes Ltd., [1998] 1 S.C.R. 27, at paragraph 21.
[58] This legislation is designed to make benefits available quickly to those unemployed persons who qualify under it and should be liberally interpreted to achieve that end: Abrahams v. Attorney General of Canada, [1983] 1 S.C.R. 2, at page 10. It is “aimed at diverting issues relating to employment insurance from the court system into the more informal, specialized, efficient adjudicative mechanisms set up by Parliament”: Steel v. Canada (Attorney General), 2011 FCA 153, [2013] 1 F.C.R. 143, at paragraph 75, Stratas J.A. (concurring). In setting up the procedures to be followed within this administrative regime, Parliament must be taken to have desired efficiency and effectiveness. The legislative wording should be interpreted with these objectives front of mind: Chrysler Canada Ltd. v. Canada (Competition Tribunal), [1992] 2 S.C.R. 394; Canadian Pacific Air Lines Ltd. v. Canadian Air Line Pilots Assn., [1993] 3 S.C.R. 724.
[59] Accordingly, this legislation should be interpreted in such a way that, to the extent possible and as quickly as possible, busybodies are excluded. Otherwise, the objectives of ease of access to benefits by deserving persons and efficiency will be undercut. Indeed, one can foresee the potential for mischief and harm in allowing those who have no real legitimate interest in the matter to launch an appeal, prolong matters, and keep deserving claimants from their benefits.
E. The case before us
[60] In the case before us, we have an employer, Tembec, saying that it had a right to notice of the board of referees’ decision and a right to appeal from it.
[61] But in its written submissions in this Court, Tembec did not identify any real, legitimate interest in pursuing its appeal to the umpire.
[62] Under repeated questioning at the oral hearing, Tembec suggested, in a vague way without support in the record, that there were “reputational” concerns necessitating its participation in the matter before the umpire. These reputational concerns were said to be associated with the umpire applying the Manitoba Labour Board’s decision against the employer on the issue of the lockout of the employees.
[63] But Tembec did not seek judicial review of the Board’s decision and is bound by it, absent special considerations which it did not raise here: Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460. Any attempt by Tembec before the umpire to challenge the Board’s decision would be a collateral attack against it and an abuse of process: R. v. Consolidated Maybrun Mines Ltd., [1998] 1 S.C.R. 706; Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77.
[64] Tembec could not point to any later proceedings or matters involving it that might be affected by the umpire’s decision. In any event, if Tembec cannot be a party before the umpire, the Umpire’s decision cannot affect it in later proceedings or matters: see, e.g., Minott v. O’Shanter Development Co. (1999), 42 O.R. (3d) 321 (C.A.).
[65] Therefore, on the facts of this case Tembec had no legitimate or real interest before the umpire. It was a busybody. It had nothing to do before the umpire except, perhaps, take issue with what the Manitoba Labour Board had done—something that was not open to it.
[66] Properly interpreted, the legislation does not require that notice of anything be given to busybodies, nor does it give participatory rights to busybodies. Therefore, I conclude that Tembec was not entitled to notice of the board of referees’ decision and had no right to appeal from it.
[67] Further, for the reasons set out above, Tembec did not have sufficient direct standing to challenge the decision of the umpire in this Court under section 18.1 of the Federal Courts Act, R.S.C., 1985, c. F-7.
[68] Finally, given the fact that Tembec had nothing to say to the umpire other than to attack or cast doubt on the decision of the Manitoba Labour Board—something that was not open to it—any failure to give it notice of the decision of the board of referees or to grant it participatory rights before the umpire was of no consequence. Therefore, to the extent that Tembec is entitled to certiorari on this application for judicial review, we should exercise our discretion against granting it: Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202; MiningWatch Canada v. Canada (Fisheries and Oceans), 2010 SCC 2, [2010] 2 S.C.R. 6; Stemijon Investments Ltd. v. Canada (Attorney General), 2011 FCA 299, 341 D.L.R. (4th) 710.
[69] Therefore, for the foregoing reasons, I would dismiss Tembec’s application for judicial review, with costs.