EMPLOYMENT INSURANCE |
Francella v. Canada (Attorney General)
A-455-02, A-199-02, A-450-02, A-451-02, A-452-02, A-453-02, A-454-02
2003 FCA 441, Rothstein J.A.
21/11/03
9 pp.
Judicial review of decisions of Umpire, dated January 18, 2002, under Employment Insurance Act--Applicants' appeals to Umpire heard jointly and Umpire released one set of reasons applying to all seven claimants--Employment Insurance Commission (Commission) assessed penalties against applicants--Appeals from Commission to Board of Referees (Board) dismissed--Appellants then appealed from Board to Umpire--Umpire allowed appeals and remitted matter to differently constituted Board--Matters considered by second Board on December 6, 2000--Before second Board, Commission introduced into evidence reporting cards not before first Board--Board accepted cards submitted by Commission on basis "this is a `Case de novo'"--Applicants appealed December 6, 2000 decisions of second Board to Umpire--Umpire held hearings before second Board de novo, reporting cards properly submitted--Dismissed appeal-- Whether Board entitled to proceed to hear matter de novo therefore allowing new evidence--Whether reconsideration hearing de novo will depend on terms on which matter remitted by Umpire and on requirements of procedural fairness--Providing no overriding unfairness, open to Umpire to specify manner in which matter remitted for reconsideration to proceed--If procedure fair, number of options open to Umpire when remitting matter for redetermination--Except in most unusual circumstances, procedurally unfair to remit matter for reconsideration for sole purpose of giving one party opportunity to introduce new evidence that could have been introduced at prior hearing-- Because of way in which Umpire remitted matter and because of fairness concerns, second Board should not have received new evidence from Commission--Words in Umpire's decision "to the extent that the issue is remitted to Board differently constituted for appropriate finding as to whether the Commission has submitted support evidence upon which to base its ruling" are in past tense--These words not envisaging introduction of new evidence before second Board--In addition, unfair to allow new evidence in this case--Applications for judicial review allowed--Employment Insurance Act, S.C. 1996, c. 23.