T-1343-77
Georges Lemieux et al. (Petitioner)
v.
Unemployment Insurance Commission (Respond-
ent)
and
Attorney General of Canada (Mis -en-cause)
Trial Division, Walsh J.—Ottawa, April 12 and 28
and May 3, 1977.
Practice — Prerogative writs — Petition for writ of man-
damus ordering Unemployment Insurance Commission to
place petitioner's record before Board of Referees and for
injunction restraining Board from hearing five records already
submitted to it pending the decision herein Petitioner
seeking to have his case heard as representative case
Grounds for interfering with administrative decisions —
Whether denial of natural justice involved.
The petitioner seeks to have his case heard by a Board of
Referees as a representative case despite the fact that his own
claim was accepted by the Unemployment Insurance Commis
sion. The Commission had made an error in assessing the
petitioner's claim and those of 48 co-workers. This error was
admitted by the Commission and it then undertook to review its
assessment of all claims involved, including that of the petition
er. Twenty-two have been disposed of, and five of the reassess
ments are being appealed; twenty-two remain to be considered.
Held, the petition is dismissed. Matters such as the dates
when claims will be heard and whether they should be heard
individually or jointly are administrative decisions not to be
interfered with by the Court unless the body making them is
not complying with the laws and regulations by which it is
governed and such non-compliance constitutes a denial of natu
ral justice. Claimants cannot unilaterally insist on proceeding
by way of a representative case if the Commission or Board of
Referees does not consider this desirable, particularly where no
issue remains to be decided in that particular case. There is
nothing in the record to indicate any denial of natural justice to
the petitioners to date.
PETITION for writ of mandamus.
COUNSEL:
P. Gaudet and M. LeBlanc for petitioner.
The respondent and the mis -en-cause did not
appear and were not represented.
SOLICITORS:
Clinique juridique et populaire de Hull Inc.,
Hull, for petitioner.
Deputy Attorney General of Canada for
respondent and mis -en-cause.
The following are the reasons for judgment
rendered in English by
WALSH J.: Petitioner's petition seeks the emis
sion of a writ of mandamus to order the Unem
ployment Insurance Commission to place before
the Board of Referees the record of Georges
Lemieux et al. without further delay and an
interim injunction enjoining the Board of Referees
to postpone the hearing of the five records already
submitted to it with the representative record of
Georges Lemieux et al. until a decision is made on
the writ of mandamus. This petition was first
submitted to the Court on April 12, 1977, no one
being present to represent the respondent or mis -
en-cause, presumably as the result of a letter
written on April 12, 1977, by petitioner's attorney,
Pauline Gaudet of the Clinique juridique et popu-
laire de Hull Inc., setting out the terms of an
agreement made between her and Me Jean-Marc
Aubry, counsel for respondent and countersigned
by him, which letter of agreement set out that the
Commission would prepare for each of the 49
records referred to in an attached list, including 6
records already inscribed before the Board of
Referees for hearing on April 14, 1977, a sum
mary of their status including the latest decisions
taken and the basis for these decisions, the whole
within ten days from the date of the said letter. It
was agreed that these 6 records would be post
poned and that when the report was received with
respect to the status of the 49 records any record
appealed would be heard by the Board of Referees
within 30 days of its inscription. On the basis of
this agreement petitioner's attorney undertook to
suspend the application before this Court on the
understanding that the full records sought would
be received before April 22, 1977, and the petition
was adjourned from April 14 to April 28, 1977.
It came on again for hearing on April 28, and
once again neither the Commission nor the Attor
ney General were represented. Counsel for peti
tioner filed a photostat of a letter dated April 27,
1977, to respondent's counsel stating that the com
munication received from him on April 15 did not
comply with the agreement reached on April 12
and that it was therefore her intention to proceed
before the Federal Court. If this letter was deliv
ered by hand it may be that counsel for respondent
had notice of the hearing, but if it was sent by mail
it is unlikely that he would have received it in time.
In any event it is regrettable that he was not
present to make submissions to the Court or to
seek a further adjournment, and it is difficult to
understand why he would not have been in a
matter which must be of some importance to the
Commission if he was aware of petitioner's insist
ence of proceeding on April 28. On the basis of the
submission by petitioner's attorney of the need for
urgency the hearing was permitted to proceed ex
parte.
In principle it may be said that matters such as
the dates fixed for hearing of a proceeding or
proceedings and whether they should be heard
individually or joined together for hearing as a
representative case are clearly administrative deci
sions and should not be interfered with by the
Court in proceedings such as the present unless it
is clearly evident that the body, board or tribunal
against which relief is sought is not complying
with the law and regulations governing its conduct
and the petitioner will suffer a denial of justice
unless the mandamus or injunction, as the case
may be, is issued compelling the party against
whom it is directed to comply with the said law
and regulations. In any board or tribunal, includ
ing the courts themselves, there may be many good
and valid reasons for delay in fixing a date for
hearing, or for postponing the hearing of certain
cases until other similar cases have been dealt
with, or for hearing a group of cases, even involv
ing similar issues, separately rather than joining
them for hearing or hearing one as a representative
case with the understanding that the decision in it
shall govern all the others. In unemployment insur
ance matters the practice of hearing one case as a
representative case and applying its findings to a
large number of other cases involving identical
issues is very often adopted and is a useful and
desirable means of proceeding. This is particularly
so, for example, in cases involving the determina
tion of whether a large number of workers who are
members of the same union lost their employment
at the same date as the result of an industrial
dispute or not. In the present case the issue
allegedly involves the proper attribution of holiday
pay or terminal pay following a mass lay-off of
workers at their place of employment. The
amounts would be different in each case, but if it
were only the arithmetical calculations which were
involved the issue of the proper attribution might
well be settled by the decision in a representative
case. It appears to me, however, that this practice
can only be adopted if all parties agree to it, or if
the claimants and Commission cannot agree the
Board of Referees at the hearing of a given case
might well decide that it was desirable to consider
it as a representative case and apply the findings in
it to other cases individually inscribed before it for
hearing. Certainly the claimants cannot unilateral
ly insist on proceeding by way of a representative
case if the Commission or Board of Referees does
not consider this desirable. This Court certainly
cannot make this decision in the present proceed
ings on the material before it.
Petitioner's attorney contends that the Commis
sion has been delaying the settlement of these
claims for some five months and that this is a
denial of justice to the claimants. She further
contends that decisions have been made by the
Commission in a number of them which in her
view are of a contradictory nature and that the
reasons for these decisions have not been explained
and that there remain 22 which have not yet been
settled. Adding these 22 to the 22 which have been
settled, but not necessarily in a manner satisfacto
ry to claimants nor in a manner understood by
petitioner's attorney, and the 5 which have been
set down for hearing makes up the total of 49. She
still wishes to proceed with the case of Georges
Lemieux as a representative case, and it was to
this appeal dated November 16, 1976, that some
22 other cases were allegedly joined for hearing
jointly with it. She contends that the fact that this
case has not yet been inscribed for hearing is a
denial of natural justice which is why she seeks a
mandamus, and the fact that the cases of 5 of
these claims have now been inscribed for hearing
before the Board of Referees is a derogation from
the original appeal asking that they be inscribed
for hearing at the same time as the Lemieux case,
and she seeks to prevent this by injunction so that
the Lemieux case can be heard first.
If this were the whole story there would be
considerable support for the granting of the
present petition. However, at the close of her
submissions she submitted considerable corre
spondence with and documents received from the
Commission which go a long way to explaining
why delays have occurred and certainly do not
indicate any lack of cooperation by the Commis
sion or unwillingness to deal with the claims on the
merits. I might comment that the sections of the
Regulations involved are very complex and have
given rise to considerable jurisprudence in cases
heard before the Umpires, some of it conflicting or
difficult to reconcile with other cases. The issue to
be decided is not a simple one therefore. A letter
from the Commission to the petitioner's attorney
dated February 28, 1977, explains where the Com
mission had originally made an error and states
that as a result each case will be reviewed and that
after the revision the Commission will send a list
indicating the names of those whose claims are not
altered as a result of the review so that they can
appeal, if so desired, and that all cases will be
referred to the same employee in connection with
this review. In reply to this petitioner's counsel
indicated that this would merely cause additional
delay and if errors had been made this should be
corrected by the Board of Referees. I find it
unreasonable to suggest that the Commission
cannot find that an error has been made in an
initial ruling and correct this error of its own
volition in favour of a claimant who has appealed
and therefore avoid the necessity of an appeal to
the Board of Referees.
A further letter from the Commission to the
petitioner's attorney dated March 18, 1977, states
that the revision has been completed as a result of
which the claims of most of the claimants have
been upheld and they have all been advised in
writing to come to the office to collect the amounts
due. Others whose claims were not changed by this
review have been advised of their right of appeal.
The letter further states that only Georges
Lemieux refused to accept a favourable decision
rendered in his case but that since his claim has
been accepted by the Commission there is no
further need for an appeal in his case. Following
this the 5 cases were set down for hearing. Prior to
this petitioner's counsel reiterated her demand for
hearing of the Lemieux case as a typical case
despite the fact that his appeal was accepted by
the Commission. Further correspondence took
place and petitioner's attorney was furnished with
documentation on April 15, 1977, by respondent's
attorney, fulfilling to some extent the commitment
made in the agreement of April 12. This includes
details of the reasons for the decisions made in the
case of all the claimants who had joined their
appeal with that of Georges Lemieux. This letter
raises the issue that the designation of the other
parties to the proceedings merely as "et al." makes
it difficult to ascertain what claimants are involved
but that nevertheless he is giving full information
with respect to all the claimants who had joined
with Mr. Lemieux in the appeal dated November
16, 1976. With respect to the other 27 names
appearing on the annex to the letter of April 12 he
states that the Commission always dealt with them
directly, that final decisions have been made with
respect to them based on the same principles as
those on which the decisions of the clients of
petitioner's attorney were made, communicated to
the claimants by writing, and that there has never
been any appeal nor question of an appeal in these
cases. He further adds that if she requires infor
mation about these persons with respect to whom
no appeal has been made she should advise in
writing that she has received the individual man
date from each of them and therefore is authorized
to receive information which would otherwise be
confidential.
While the principles governing the attribution of
the payments in question may be the same in each
case it is evident from the information furnished
giving the basis of the decisions made, that there
were differences other than mere arithmetical dif
ferences involved. In some cases an antedate was
allowed and in another case the benefits were
terminated at a given date because of the receipt
of a pension from the Quebec Pension Plan.
Whether they should be dealt with in a representa
tive appeal therefore appears highly doubtful and
if a representative appeal is to be heard it would
seem most undesirable to base it on the case of
Georges Lemieux whose claim has already been
accepted in full by the Commission. The situation
might be different if his appeal had been allowed
in part only as a result of the revision made by the
Commission, but there is nothing in the record to
so indicate. The individual claimants are not of
course obliged to agree with or accept the revisions
made by the Commission and can appeal against
these revisions if they so desire if they are within
their delays to do so or these delays are waived.
Certainly the Board of Referees should not be
expected however to hear appeals in cases where
no issue remains to be decided, nor should it be
possible for claimants, by having them confirm the
Commission's revision in a representative case in
which no issue any longer exists, to then insist that
this finding be applied to all the other cases, in
some of which the Commission apparently made
somewhat different decisions for reasons which it
believes to be appropriate, which decisions can be
appealed. It would appear that the five cases set
down for hearing are among those in which an
appealable issue still remains and it is appropriate
to proceed with them at the earliest possible date
and also with any others in which an undecided
issue still remains. It would certainly appear to be
desirable to have as many of them as possible
heard before the same Board of Referees at the
same time, and the Board can decide whether to
hear one of them as a representative case and
apply its findings to the others if it so desires. To
the extent that there are differences in the facts
however it may be necessary for them to be heard
separately. Certainly petitioner's counsel is en
titled to full information with respect to any file
fixed for hearing before the Board of Referees,
and all cases still outstanding should be fixed for
hearing at the earliest possible date. The exchange
of correspondence and documents in the records,
however, discloses nothing to indicate that the
Commission has acted in any way improperly in
dealing with this matter, unless one is to blame it
for certain original erroneous interpretations of the
Regulations, which however, it subsequently cor
rected by voluntarily revising the files in question.
Under the circumstances it would be most improp
er for this Court to interfere in what are purely
administrative matters with respect to the order
and manner in which the appeals to the Board of
Referees are to be heard as there is nothing in the
record to indicate any denial of natural justice to
the petitioners to this date.
The petition will therefore be dismissed but
without costs since neither respondent nor mis -en-
cause were represented at the first or adjourned
hearing and some useful purpose has been accom
plished by it in any event by virtue of the agree-
ment resulting in petitioner's attorney having been
given certain pertinent and necessary information
by the communication of April 15, 1977.
ORDER
Petition dismissed without costs.
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