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A-817-76
George Krebs and Jacklyn Krebs (Appellants)
v.
Minister of National Revenue (Respondent)
and
George Krebs and Jacklyn Krebs (Applicants)
v.
The Umpire constituted under section 84 of the Unemployment Insurance Act, 1971
Court of Appeal, Pratte, Heald and Urie JJ.— Vancouver, May 19, 1977.
Judicial review — Unemployment insurance — Application to set aside decision of Umpire — Applicants delayed in retaining counsel until shortly before hearing— Umpire hasti ly dismissed application for adjournment without fully hear ing counsel's argument — Whether given a fair opportunity to be heard because of refusal to adjourn — Federal Court Act, s. 28 — Unemployment Insurance Act, 1971, S.C. 1970-71-72, c. 48, s. 84.
Burnbrae Farms Ltd. v. Canadian Egg Marketing Agency [1976] 2 F.C. 217, applied.
APPLICATION for judicial review. COUNSEL:
David W. Mossop and Allan H. MacLean for
appellants.
C. D. Mackinnon for respondent.
SOLICITORS:
Vancouver Community Legal Assistance Society, Vancouver, for appellants.
Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment of the Court delivered orally in English by
PRATTE J.: This is an application to review and set aside a decision of an Umpire dismissing an appeal instituted pursuant to section 84 of the Unemployment Insurance Act, 1971, S.C. 1970- 71-72, c. 48.
The applicants' sole contention is that the deci sion under attack was vitiated by the Umpire's
failure to adjourn the hearing of the appeal as he had been requested to do by their counsel.
It must first be observed that some of the cir cumstances surrounding the Umpire's refusal to adjourn are, to say the least, regrettable.
The Umpire was under the impression that the application for the adjournment, which had first been made by telegram had been rejected by the Chief Umpire. As one of his reasons for refusing to adjourn, the Umpire mentioned his reluctance to reverse a decision of the Chief Umpire. The Umpire was in error. The Chief Umpire had not rejected the applicants' request for an adjourn ment; he had merely directed that it be presented to the Umpire at the time fixed for the hearing of the appeal.
The record also discloses that the Umpire reject ed the applicants' request with an undue precipita tion and without giving counsel a full opportunity to present his argument.
These irregularities are serious. However, what is here under attack is not the Umpire's refusal to adjourn but his decision dismissing the applicants' appeal and that decision is not necessarily vitiated by the fact that the adjournment might have been irregularly refused. In order to succeed, the appli cants must establish that, as a result of the refusal to adjourn, their appeal to the Umpire was dis missed without their having been given a fair opportunity to be heard. (See: Burnbrae Farms Ltd. v. Canadian Egg Marketing Agency [1976] 2 F.C. 217.)
If the facts of the case are viewed in that light, it is clear, in our opinion, that the application must be rejected.
The applicants commenced their appeal to the Umpire in April 1976 and, at that time, they were notified by the Registrar of the Umpire that it might be in their interest to seek legal advice. On September 14, 1976, they received notice that the appeal would be heard in Vancouver some 23 days later, on October 7. On October 1, counsel for the applicants, who had just been retained, sent a telegram to the Registrar of the Umpire request ing an adjournment of the hearing on the ground that he needed time to familiarize himself with the
case, particularly in view of the fact that part of the documentation, which was in French, had to be translated into English.
It is apparent, in our view, that the applicants were given a fair opportunity to be heard. If, at the time fixed for the hearing of the appeal, counsel was not in a position to adequately represent them, that was solely due to the fact that the applicants themselves had waited until the end of September before seeking legal advice.
For those reasons, the application will be dismissed.
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