A-222-76
Attorney General of Canada (Applicant)
v.
Richard Poudrier (Respondent)
Court of Appeal, Pratte and Le Dain JJ. and Hyde
D.J.—Montreal, September 30 and October 15,
1976.
Judicial review—Motion to quash decision of umpire under
Part V of Unemployment Insurance Act reversing finding of
Board of Referees—Whether respondent "available" within
meaning of s. 25 of the Act—Unemployment Insurance Act,
S.C. 1970-71-72, c. 48, s. 25.
Applicant claims that the umpire can not reverse the Board
of Referee's decision unless it is based on an error in law or on
a manifest misinterpretation of facts and that the Board had
committed neither of these errors.
Held, the application is dismissed. The umpire heard new
evidence and, adding this to the evidence submitted to the
Board, concluded that the decision of the Board was in error.
He was, therefore, bound to quash it and was not required to
consider whether the error was manifest.
Dorval v. Bouvier [1968] S.C.R. 288; Levy v. Manley
[1975] 2 S.C.R. 70; Roulis v. Minister of Manpower and
Immigration [1974] S.C.R. 875 and Union Gas v. Syden-
ham Gas [1957] S.C.R. 185, applied.
APPLICATION for judicial review.
COUNSEL:
J. M. Aubry for applicant.
J. Beauchemin for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Cousineau & Beauchemin, Montreal, for
respondent.
The following is the English version of the
reasons for judgment rendered by
PRATTE J.: The applicant asks the Court to
quash, under section 28 of the Federal Court Act,
a decision delivered by an umpire under Part V of
the Unemployment Insurance Act, 1971. By this
decision the umpire allowed the appeal of the
respondent and stated that the latter had, contrary
to the finding of the Board of Referees, shown
himself to be "available" within the meaning of
section 25 of the Act, and was therefore entitled to
the benefits which he had been refused.
In support of his application, counsel for the
applicant submitted only one argument, namely
that the umpire should not have reversed the deci
sion of the Board of Referees, as this was not
manifestly in error. Counsel for the applicant
maintained that the umpire was not authorized to
reverse a decision of a board of referees on a
question of availability, unless this decision was
based on an error in law or on a manifest misinter
pretation of the facts. Counsel said that the Board
had committed neither of these errors in the case
at bar; it simply happened that the circumstances
of the case were such that two reasonable people,
with knowledge of the law, could interpret the
consequences differently. Counsel for the applicant
maintained that if that were the case the umpire
could not, without acting ultra vires, substitute his
own interpretation of the facts or his own opinion
for that of the Board of Referees.
In support of his argument, counsel for the
applicant cited several decisions in which the
Supreme Court of Canada set out the limits of the
power of an appellate judge who is asked to substi
tute his interpretation of the facts for that of the
trial judge', to criticize the exercise of a discretion
granted by law to the trial court 2 , or even to
substitute his opinion for the one which the juris
diction a quo was responsible for formulating 3 .
I consider that this dispute can be settled simply
by saying that the rule of law relied on by the
applicant does not apply in a case such as the one
at bar. As he was authorized to do, the umpire
heard new evidence (of which we know only what
was reported in his decision); it appears that he
considered this evidence as well as the information
communicated to him from the evidence submitted
to the Board of Referees. He then concluded, for
reasons which are not very clear, that the decision
1 For example, Dorval v. Bouvier [1968] S.C.R. 288; Levy v.
Manley [1975] 2 S.C.R. 70.
2 Eg., Boulis v. M.M. & I. [1974] S.C.R. 875.
3 Eg., Union Gas Co. of Canada Ltd. v. Sydenham Gas and
Petroleum Co. Ltd. [1957] S.C.R. 185; see also on this point
Rowntree v. Chambers Co. Ltd. [1968] S.C.R. 134, the scope
of which was clarified by Benson & Hedges (Canada) Ltd. v.
St. Regis Tobacco Corp. [1969] S.C.R. 193.
of the Board was in error. In these circumstances,
he was obliged to quash it, and was not required to
consider whether the error committed by the
Board was a manifest one.
The decision of the umpire should not be
quashed, therefore, for the reason put forward by
the applicant. It may have been possible to chal
lenge it for other reasons; in my view it is not for
this Court to rule on this point, since the applicant
has not summitted in support of his application
any arguments apart from those I have already
dealt with.
For these reasons I would dismiss the
application.
* * *
LE DAIN J.: I concur.
* * *
HYDE D.J.: I concur.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.