Gemby v. Canada ( Human Resources Development )
T-1238-98
MacKay J.
2/9/99
8 pp.
Application for judicial review of Board of Referees' decision approving de novo hearing of applicant's appeal in relation to claim for benefits under Act-Applicant seeking order quashing decision and compelling Board to instruct Employment Insurance Commission to pay applicant benefits pursuant to earlier decision of Board-Commission received applicant's application for insurance benefits in October 1997-In November 1997, Commission issued notice of disqualification to applicant on basis applicant had not terminated his employment with employer with just cause-Board allowed appeal therefrom in December 1997, concluding applicant had been laid off from summer job and that employer had prepared his record of employment erroneously-In January 1998, employer contacted Commission and complained company had not received notification of hearing of appeal-Commission concluded breach of natural justice as company had not received notification and had not had opportunity to make representations-Commission concluded de novo hearing appropriate measure to resolve matter and so recommended to newly constituted Board of Referees-In February 1998, newly constituted Board decided to rehear appeal de novo-Issue whether Board exceeded jurisdiction by approving rehearing and refusing to pay benefits in accordance with original hearing-Application allowed in part, setting aside decision of Board of Referees of February 1998-Act, s. 120 did not provide Board with authority to approve de novo hearing in circumstances-Act, s. 120 providing Board may rescind or amend decision if new facts presented or decision made without knowledge of, or based on mistake as to, material facts-New facts or mistake must relate to facts material to claim before Board, not to procedural failures-Moreover, Board did not rely on Act, s. 120 but on Regulations, s. 83(1)-However, s. 83(1) not providing authority for Board to determine that prior decision should be set aside and appeal to be heard de novo because of procedural error or breach of natural justice-No regulations made or here relied upon to warrant process followed by Board herein-Commission's manual of procedures clearly not having status of regulations, useful though procedures may be-Board of Referees, having decided applicant's appeal in December 1997, functus officio-Could not reconsider matter except within limits of Act, s. 120 if new facts found or decision based on mistake of material fact-Proper process where interested party has not had notice of hearing: appeal as of right to umpire from decision of Board of Referees, by Commission, claimant or employer (Act, s. 115)-No such appeal here initiated-Unusual for Court to intervene through proceedings in judicial review where statute providing appeal process for dealing with issues raised-However, circumstances herein warrant intervention by order to set aside decision of Board in February 1998, to proceed with hearing de novo-Commission stated that since application initiated, it has devised new process to deal with such cases by reference to designated umpire-Circumstances for order of mandamus for payment of benefits to applicant not here established-Employment Insurance Act, S.C. 1996, c. 26, ss. 111, 115, 120-Employment Insurance Regulations, SOR/96-332, s. 83(1).