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.
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.