T-4045-74
William Henry Mahaffey (Applicant)
v.
William Nykyforuk, Chairman of the Board of
Referees, and the Unemployment Insurance Com
mission (Respondents)
Trial Division, Heald J.—Saskatoon, November
27; Ottawa, December 3, 1974.
Jurisdiction — Unemployment insurance — Chairman's re
fusal to grant leave to appeal—Certiorari sought against
refusal—Jurisdiction in Federal Court of Appeal—None in
Trial Division—Unemployment Insurance Act, S.C. 1970-
71-72, c. 48 ss. 91, 94, 95, 96—Federal Court Act, ss. 18,
28, 102—Federal Court Rule 603.
The applicant, insured under the Unemployment Insur
ance Act, was disqualified by an insurance officer from
receipt of benefits under the Act for a period of time. His
appeal to the Board of Referees was dismissed. Leave to
appeal to the Umpire, from the Board's unanimous decision,
was refused by the Board Chairman, the defendant Nykyfo-
ruk, under sections 95(c)(ii) and 96(1) of the Act. The
applicant sought an order for a writ of certiorari and for an
order declaring that the Chairman's decision was void. At
the hearing, argument was restricted to the question whether
the Trial Division had jurisdiction to hear the application.
Held, dismissing the application, the Chairman's order
refusing leave to appeal, made pursuant to section 96(1) of
the Unemployment Insurance Act, was a decision under
statutory authority and as such was a "decision or order"
within the meaning of section 28(1) of the Federal Court
Act. The Chairman was within the definition of a "federal
board, commission or other tribunal" as defined in section 2
of the Federal Court Act. The essential weapon enlisted by
the applicant was certiorari—the review and, if proper, the
setting aside, of the decision. The grounds of the application
came within the jurisdiction granted to the Federal Court of
Appeal under section 28(1), thus operating under section
28(3) to oust the Trial Division's jurisdiction.
Kraynick v. Unemployment Insurance Commission
(T-273-74, April 22, 1974) and Creative Shoes Ltd. v.
Deputy Minister of National Revenue [1972] F.C. 115,
affirmed [1972] F.C. 993, followed. National Indian
Brotherhood v. Juneau [No. 2] [1971] F.C. 73, distin
guished. In re Danmor Shoe Co. Ltd. [1974] 1 F.C. 22,
applied.
JUDICIAL review.
COUNSEL:
Donald J. Punch for applicant.
B. Collins for respondent.
SOLICITORS :
Purich & Linn, Saskatoon, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
delivered in English by
HEALD J.: This is an application pursuant to
section 18 of the Federal Court Act and Rule
603 "for an order that a writ of certiorari do
issue out of this Honourable Court and for an
order declaring that the decision of the respond
ent, William Nykyforuk, made pursuant to
section 96 of the Unemployment Insurance Act,
be declared to be void and of no effect" and for
a further order: "compelling the said respond
ents to proceed in the manner set out under
section 96 of the Unemployment Insurance
Act."
The grounds upon which the application was
brought, as stated in the notice of motion, read
as follows:
a. That there is an error on the face of the Record;
b. That the said Respondents did not proceed in the manner
as prescribed by Section 96 of The Unemployment Insur
ance Act;
c. That there was a denial of natural justice;
d. That the said Respondent, WILLIAM NYKYFORUK, did not
determine whether there was a principle of importance
involved in the Case or whether there were other circum
stances for reason by which Leave for Appeal ought to be
granted;
e. That in determining whether Leave for Appeal should be
granted, consideration should be given to questions of law;
At the hearing before me, counsel argued only
the question of the jurisdiction of the Trial
Division to hear the motion, having agreed that
if I concluded there was jurisdiction in the Trial
Division, the argument on the merits of the
application would be heard at a later date.
The applicant, an insured person under the
provisions of the Unemployment Insurance Act,
was disqualified from receipt of benefits under
said Act for the period July 24, 1972 to Febru-
ary 28, 1973 by the decision of an insurance
officer of the respondent Commission. Pursuant
to section 94 of the Unemployment Insurance
Act, the applicant appealed said decision to a
board of referees appointed under said Act.
Section 91 of the Act provides for the appoint
ments of boards of referees in the various areas
of Canada. Each board consists of 3 persons: a
representative of employers, a representative of
insured persons and a chairman appointed by
the Governor in Council. The respondent,
Nykyforuk, was the duly appointed Chairman
of the Board of Referees which heard the appli
cant's appeal at Saskatoon, Saskatchewan. Said
Board unanimously dismissed the applicant's
said appeal.
Section 95 of the Act sets out the further
rights of applicants to a further appeal from the
decision of a board of referees to an umpire and
reads as follows:
95. An appeal lies to an umpire in the manner prescribed
from any decision of a board of referees as follows:
(a) at the instance of the Commission, in any case;
(b) subject to section 97, at the instance of an association
of workers of which the claimant is a member or an
association of employers of which an employer of the
claimant is a member, in any case; or
(c) at the instance of the claimant or an employer of the
claimant
(i) without leave, in any case in which the decision of
the board of referees is not unanimous, and
(ii) with the leave of the chairman of the board of
referees, in any other case.
Since, in this case, the decision of the Board
of Referees was unanimous, section 95(c)(ii)
applied, thus requiring the leave to appeal of the
Chairman of said Board of Referees, i.e., the
respondent Nykyforuk. Said respondent
refused, in this case, to grant said leave to
appeal and it is this refusal on the part of the
Chairman which forms the subject-matter of
this application. Section 96(1) of the Act sets
out the basis on which leave to appeal is to be
granted and reads as follows:
96. (1) An application for leave to appeal from a decision
of a board of referees may be made by the applicant in such
form, and within such time not less than thirty days after the
day the decision is communicated to him, as is prescribed,
and an application for leave to appeal shall be granted by the
chairman of the board of referees if it appears to him that
there is a principle of importance involved in the case or
there are other special circumstances by reason of which
leave to appeal ought to be granted.
At the beginning of the hearing before me, I
drew the attention of counsel to a recent deci
sion of my brother, Collier J., in the case of
Kraynick v. Unemployment Insurance
Commission' where the relief sought against a
Board of Referees' decision under the Unem
ployment Insurance Act was, for all practical
purposes, identical to the relief herein sought. In
that decision, Mr. Justice Collier found that the
applicant was seeking, by way of certiorari, to
review and set aside the Board's decision and
that, since the Appeal Division of the Federal
Court has been given jurisdiction to do that
under section 28(1) of the Federal Court Act,
any proceeding in respect of that decision is
withheld from the Trial Division by virtue of
section 28(3). In so deciding, Collier J. was
following the decision of Walsh J. in Creative
Shoes Ltd. v. Deputy Minister of National
Revenue 2 as affirmed by the Federal Court of
Appeal'.
While in the instant case, the decision
impugned was the decision of the Chairman of
the Board of Referees rather than the decision
of the Board itself, I am satisfied that the Chair
man of the Board of Referees also comes within
the definition of "federal board, commission or
other tribunal" as those terms are defined in
section 2 of the Federal Court Act. Likewise, as
in the Kraynick case (supra) I am satisfied that,
looking at the substance of these proceedings,
the "essential weapon enlisted by the applicant
is certiorari—the review and setting aside, if
proper, of a decision". 4 In my view, the grounds
stated in the application clearly come within the
jurisdiction granted to the Federal Court of
Appeal under section 28(1) of the Act, thus
operating to oust the jurisdiction of the Trial
Division under section 28(3) of the Act.
' Court file no.—T-273-74, decision dated April 22, 1974.
2 [1972] F.C. 115.
' [1972] F.C. 993 at 998.
4 I Kraynick (supra)—judgment of Collier J. at p. 7
thereof.
The only matter which remains for consider
ation is whether subject refusal by the respond
ent Nykyforuk is a "decision or order" as that
term is used in said section 28(1). In support of
his contention that said refusal was not such a
"decision or order", applicant's counsel relies
on the comments of Chief Justice Jackett in
National Indian Brotherhood v. Juneau [No.
21 5 . With respect, I do not agree that those
comments assist this applicant. On page 79 of
that judgment, the learned Chief Justice said:
I do not pretend to have formulated any view as to what
the words "decision or order" mean in the context of s.
28(1), but it does seem to me that what is meant is the
ultimate decision or order taken or made by the tribunal
under its statute and not the myriad of incidental orders or
decisions that must be made in the process of getting to the
ultimate disposition of a matter.
The learned Chief Justice also considered this
same problem in the case of In Re Danmor Shoe
Co. 6 where he said:
A decision that may be set aside under section 28(1) must,
therefore, be a decision made in the exercise or purported
exercise of "jurisdiction or powers" conferred by an Act of
Parliament. A decision of something that the statute
expressly gives such a tribunal "jurisdiction or powers" to
decide is clearly such a "decision". A decision in the pur
ported exercise of the "jurisdiction or powers" expressly
conferred by the statute is equally clearly within the ambit
of section 28(1). Such a decision has the legal effect of
settling the matter or it purports to have such legal effect.
Once a tribunal has exercised its "jurisdiction or powers" in
a particular case by a "decision" the matter is decided even
against the tribunal itself.
In the case at bar, the tribunal under review is
not the entire Board of Referees, but rather, the
Chairman of the Board of Referees appointed
pursuant to section 91(2). The order herein
complained of was made pursuant to section
96(1) and is "a decision of something that the
statute expressly gives such a tribunal 'jurisdic-
tion or powers to decide'."
As such, it is clearly a "decision or order"
within the context of section 28(1) since it has
the legal effect of settling the matter, not only
as between the parties but is decided even
s [1971] F.C. 73 at 78 and 79.
6 [1974] 1 F.C. 22 at 28.
against the tribunal itself'. Thus, in my view,
this decision of the Chairman under section 96
is the "ultimate decision or order taken or made
by the tribunal under its statute and not the
myriad of incidental orders or decisions that
must be made in the process of getting to the
ultimate disposition of a matter" referred to by
the Chief Justice in the Juneau case (supra).
For the foregoing reasons, I have concluded
that the decision of the respondent Nykyforuk
under section 96 of the Act is a "decision or
order" within the meaning of section 28(1) of
the Federal Court Act. It follows that, in my
view, the Federal Court of Appeal has jurisdic
tion to entertain subject application and that,
therefore, the Trial Division does not have
jurisdiction.
The application is accordingly dismissed. No
order will be made as to costs.
The only power given in the statute to amend or rescind
a decision is contained in section 102. However, that section
only gives that power to the "Commission, a board of
referees or the umpire" and does not extend to the chairman
of a board of referees.
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.