A-439-81
Attorney General of Canada (Applicant)
v.
Martin Allard (Respondent)
Court of Appeal, Pratte, Ryan JJ. and Lalande
D.J.—Quebec City, May 13, 1982.
Judicial review — Applications to review — Unemployment
Insurance — Application to set aside Umpire's decision that
Board of Referees not competent to hear case because one of
three Board members absent — S. 178(5) of Unemployment
Insurance Regulations provides that in certain cases, appeals
referred to boards of referees may be heard by chairman and
one-half of members of board — S. 91(1) of Unemployment
Insurance Act, 1971 provides that boards of referees shall
consist of chairman, one or more members chosen from
employers or representatives and equal number of members
chosen from insured persons or representatives — S. 91(5) of
Act authorizes Commission to make regulations regarding
number of members constituting quorum — Umpire held s.
178(5) of Regulations ultra vires because it contravened s.
91(1) of Act and s. 94(1) which provides that appeals shall be
to "the board of referees" — Umpire erred as s. 91(5) of Act
authorizes Commission to enact s. 178(5) of Regulations —
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28 —
Unemployment Insurance Act, 1971, S.C. 1970-71-72, c. 48,
ss. 91(1),(5), 94(1) — Unemployment Insurance Regulations,
SOR/55-392, s. 178(5) — Unemployment Insurance Regula
tions, C.R.C. 1978, Vol. XVIII, c. 1576, s. 62(5).
APPLICATION for judicial review.
COUNSEL:
D. Verdon for applicant.
No one appearing on behalf of respondent.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
RESPONDENT ON HIS OWN BEHALF:
Martin Allard, Roberval.
The following is the English version of the
reasons for judgment of the Court delivered orally
by
PRATTE J.: This application pursuant to section
28 of the Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10, is from a decision of an Umpire,
hearing an appeal from a decision by a Board of
Referees in accordance with the provisions of the
Unemployment Insurance Act, 1971, S.C. 1970-
71-72, c. 48.
The decision of the Board of Referees appealed
to the Umpire was rendered, by consent of the
claimant, by only two of the members making up
the Board, the third being absent. The Umpire
held that for this reason the Board was not com
petent to hear the case, and he ruled that subsec
tion 178(5) of the Unemployment Insurance
Regulations, SOR/55-392 as amended by SOR/
71-324, authorizing the Board to act in this
manner, was ultra vires.
Subsection 91(1) of the Act authorizes boards of
referees to be established, made up of a chairman
and one or more members chosen from employers
or representatives of employers and an equal
number of members chosen from insured persons
or representatives of insured persons. Subsection
(5) of that section authorizes the Commission,
with the approval of the Governor in Council, to
make regulations regarding the number of mem
bers constituting a quorum. Subsection 178(5) of
the Unemployment Insurance Regulations states
that, in certain cases, appeals referred to boards of
referees may be heard and decided as was the
appeal in question here, by the chairman and
one-half of the other members of the board. It is
this regulation which the Umpire held ultra vires
on the ground that it contravened subsection 91(1)
of the Act, which fixes the number of members of
boards of referees at no less than three, and sub
section 94(1), which provides that appeals shall be
to "the board of referees".
We are all of the view that this decision is
incorrect. Subsection 178(5) of the Regulations is
a provision that the Commission had the power to
enact under subsection 91(5) of the Act, which
authorizes the Commission to fix the quorum of
boards of referees. We find no contradiction be
tween this regulatory provision and the legislation
determining the composition of boards of referees.
The quorum of a body made up of several mem
bers is the minimum number of members who
must be present for that body to exercise its
powers validly.
For these reasons, the decision a quo will be set
aside and the matter referred back to the Umpire
to be decided by him on the assumption that
subsection 178(5) of the Unemployment Insurance
Regulations, now subsection 62(5) [C.R.C. 1978,
Vol. XVIII, c. 1576], was validly enacted.
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.