Martine Husson (Applicant)
v.
Roland Laplante (Respondent)
and
Guy Boucher, Léo Desjardins and Deputy Attor
ney General of Canada (Mis -en-cause)
Court of Appeal, Pratte and Le Dain JJ. and Hyde
D.J.—Quebec, February 7 and 17, 1977.
Jurisdiction — Unemployment insurance — Whether appli
cant entitled to ask for s. 28 review when other avenues of
appeal available — Unemployment Insurance Act, 1971, S.C.
1970-71-72, c. 48, s. 95 — Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10, ss. 28 and 29 — Federal Court Rule 1100.
Respondent and mis -en-cause apply under Rule 1100 to
have the applicant's action, initiated pursuant to section 28 of
the Federal Court Act, quashed on the grounds that the
applicant has not exhausted the avenues of appeal provided for
by the Unemployment Insurance Act, 1971 and Parliament
could not have intended to grant two alternative forms of
appeal.
Held, the application to quash is rejected. In the light of
section 29 of the Federal Court Act, the word "decision" in
section 28 cannot refer only to final decisions and the Court has
no discretion to refuse to exercise the jurisdiction conferred on
it by section 28.
APPLICATION to quash proceedings.
COUNSEL:
Nicole Thivierge for applicant.
Jean-Marc Aubry for respondent and
mis -en-cause.
SOLICITORS:
Nicole Thivierge, Cabano, P.Q., for applicant.
Deputy Attorney General of Canada for
respondent and mis -en-cause.
The following is the English version of the
reasons for judgment rendered by
PRATTE J.: Respondent and the mis -en-cause
cited Rule 1100 and requested that the proceed
ings begun by applicant under section 28 be sum
marily quashed.
Applicant was unemployed and claimed to be
entitled under the Unemployment Insurance Act,
1971 ', to benefits which the Commission refused to
pay her. She appealed the Commission's refusal to
a Board of Referees. The Board unanimously dis
missed the appeal. Applicant could then have
applied to the Chairman of the Board of Referees,
pursuant to section 95 of the Unemployment In
surance Act, 1971 for leave to appeal to an
Umpire. Not knowing that such an appeal existed,
applicant relied on section 28 of the Federal Court
Act 2 and filed an application in this Court to have
the decision of the Board of Referees set aside. It
is this application made under section 28 which
respondent and the mis -en-cause seek to have
quashed today. They claim that this application is
premature, since it was made before applicant had
exhausted the means of appeal which were open to
her under the Unemployment Insurance Act, 1971.
It is established that the decision of the Board of
Referees which applicant is appealing is one which
this Court has the power to review, according to
the text of section 28. If respondent and the mis -
en-cause maintain nevertheless that section 28
does not allow us to review it, this is because they
consider it pointless and unusual for the same
decision to be objected to by means of an appeal
and on the basis of section 28 at the same time.
They claim that Parliament did not intend a result
of this kind.
It is perhaps unusual for a person wishing to
have the decision of a Board of Referees reversed
to be unaware of the appeal process provided in
the Act, and to bring an action under section 28
immediately in the Federal Court of Appeal. How
ever, that seems to me to be what Parliament
intended. The jurisdiction of the Court of Appeal
under section 28 extends to all decisions of federal
tribunals, except decisions of an administrative
nature not required by law to be made on a
judicial or quasi-judicial basis. In view of section
29 it is impossible in my mind to say that the word
"decision" in section 28 refers solely to definitive
decisions which are not subject to appeal. Under
section 28, therefore, the jurisdiction of the Court
extends to decisions which are subject to appeal
and to those which are not. In my opinion, the
S.C. 1970-71-72, c. 48.
2 R.S.C. 1970 (2nd Supp.), c. 10.
Court is required to exercise this jurisdiction
whenever it is asked to do so, since the Act gives it
no discretion in this respect.
For these reasons I would dismiss the applica
tion filed by respondent and the mis -en-cause.
LE DAIN J.: I concur.
HYDE D.J.: I concur.
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