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A-129-81
Attorney General of Canada (Applicant)
v.
Lee Langille (Respondent)
Court of Appeal, Thurlow C.J., Heald J. and Lalande D.J.—Ha lifax, November 4, 1981.
Judicial review — Unemployment insurance — Application to review and set aside Chief Umpire's decision to confirm the decision of the Board of Referees — Chief Umpire treated applicant's appeal as being governed by the new s. 95 of the Unemployment Insurance Act, 1971 — Applicant's appeal was commenced before the coming into force of the new s. 95 Whether the scope of applicant's appeal is that provided by s. 95 as it was before the proclamation of the new s. 95 — Unemployment Insurance Act, 1971, S.C. 1970-71-72, c. 48, s. 95 — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28 — Interpretation Act, R.S.C. 1970, c. I-23, s. 35(c),(e).
APPLICATION for judicial review. COUNSEL:
Michael Butler and J. D. Bissell for appli
cant.
R. A. Kanigsberg, Q.C. for respondent.
SOLICITORS:
Deputy Attorney General of Canada for applicant.
Kanigsberg Cordon Stern & Freeman, Hali- fax, for respondent.
The following are the reasons for judgment rendered in English by
TI3URLOW C.J.: Two points were argued on this application, the first, whether the learned Chief Umpire erred as to the scope of the appeal before him, the other whether the material before him was sufficient to support his confirmation of the decision of the Board of Referees.
I would have no difficulty in reaching the con clusion that there was ample material in the record upon which the Board of Referees and the Chief Umpire could reach their conclusions. However, it appears that the learned Chief Umpire treated the appeal before him as being governed by the new section 95 of the Unemployment Insurance Act, 1971, S.C. 1970-71-72, c. 48, which prescribes the
grounds on which an appeal may be taken in restrictive terms similar to those provided for review applications under subsection 28(1) of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, and that he did not consider it open to him to reach his own conclusions on the evidence. As the applicant's appeal to the Umpire was commenced on February 5, 1980, that is to say, before the coming into force of the new section 95 on May 1, 1980, I am of the opinion that the scope of the applicant's appeal to the Umpire was not restricted to an appeal on the grounds set out in the new section 95 but was a plenary appeal as provided in the earlier section under which it was asserted. The right of appeal is in my view a substantive right and is not affected by the repeal of the provision authorizing it and the substitution of a new and narrower right of appeal. See paragraphs 35(c) and (e) of the Interpretation Act, R.S.C. 1970, c. I-23.
Accordingly, I would set aside the decision and refer the matter back to an Umpire to be dealt with on the basis that the scope of the applicant's appeal is that provided by section 95 of the Unem ployment Insurance Act, 1971 as it was before the proclamation of the new section 95 enacted by section 56 of the Statutes of Canada 1976-77, c. 54.
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The following are the reasons for judgment rendered in English by
HEALD J.: I agree with the Chief Justice that the decision of the Chief Umpire should be set aside and the matter referred back to an Umpire to be dealt with on the basis that the scope of the applicant's appeal is that provided by section 95 of the Unemployment Insurance Act, 1971, as it was before the proclamation of the new section 95 on May 1, 1980. In view of this conclusion, I do not consider it necessary to express a view on the sufficiency or otherwise of the material in the record upon which the Board of Referees and the Chief Umpire reached their conclusions.
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LALANDE D.J.: I agree.
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