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Martine Husson (Applicant) v.
Roland Laplante (Respondent) and
Guy Boucher, Léo Desjardins and Deputy Attor ney General of Canada (Mis -en-cause)
Court of Appeal, Pratte and Le Dain JJ. and Hyde D.J.—Quebec, February 7 and 17, 1977.
Jurisdiction — Unemployment insurance — Whether appli cant entitled to ask for s. 28 review when other avenues of appeal available — Unemployment Insurance Act, 1971, S.C. 1970-71-72, c. 48, s. 95 — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss. 28 and 29 — Federal Court Rule 1100.
Respondent and mis -en-cause apply under Rule 1100 to have the applicant's action, initiated pursuant to section 28 of the Federal Court Act, quashed on the grounds that the applicant has not exhausted the avenues of appeal provided for by the Unemployment Insurance Act, 1971 and Parliament could not have intended to grant two alternative forms of appeal.
Held, the application to quash is rejected. In the light of section 29 of the Federal Court Act, the word "decision" in section 28 cannot refer only to final decisions and the Court has no discretion to refuse to exercise the jurisdiction conferred on it by section 28.
APPLICATION to quash proceedings. COUNSEL:
Nicole Thivierge for applicant.
Jean-Marc Aubry for respondent and
mis -en-cause.
SOLICITORS:
Nicole Thivierge, Cabano, P.Q., for applicant.
Deputy Attorney General of Canada for respondent and mis -en-cause.
The following is the English version of the reasons for judgment rendered by
PRATTE J.: Respondent and the mis -en-cause cited Rule 1100 and requested that the proceed ings begun by applicant under section 28 be sum marily quashed.
Applicant was unemployed and claimed to be entitled under the Unemployment Insurance Act,
1971 ', to benefits which the Commission refused to pay her. She appealed the Commission's refusal to a Board of Referees. The Board unanimously dis missed the appeal. Applicant could then have applied to the Chairman of the Board of Referees, pursuant to section 95 of the Unemployment In surance Act, 1971 for leave to appeal to an Umpire. Not knowing that such an appeal existed, applicant relied on section 28 of the Federal Court Act 2 and filed an application in this Court to have the decision of the Board of Referees set aside. It is this application made under section 28 which respondent and the mis -en-cause seek to have quashed today. They claim that this application is premature, since it was made before applicant had exhausted the means of appeal which were open to her under the Unemployment Insurance Act, 1971.
It is established that the decision of the Board of Referees which applicant is appealing is one which this Court has the power to review, according to the text of section 28. If respondent and the mis - en-cause maintain nevertheless that section 28 does not allow us to review it, this is because they consider it pointless and unusual for the same decision to be objected to by means of an appeal and on the basis of section 28 at the same time. They claim that Parliament did not intend a result of this kind.
It is perhaps unusual for a person wishing to have the decision of a Board of Referees reversed to be unaware of the appeal process provided in the Act, and to bring an action under section 28 immediately in the Federal Court of Appeal. How ever, that seems to me to be what Parliament intended. The jurisdiction of the Court of Appeal under section 28 extends to all decisions of federal tribunals, except decisions of an administrative nature not required by law to be made on a judicial or quasi-judicial basis. In view of section 29 it is impossible in my mind to say that the word "decision" in section 28 refers solely to definitive decisions which are not subject to appeal. Under section 28, therefore, the jurisdiction of the Court extends to decisions which are subject to appeal and to those which are not. In my opinion, the
S.C. 1970-71-72, c. 48.
2 R.S.C. 1970 (2nd Supp.), c. 10.
Court is required to exercise this jurisdiction whenever it is asked to do so, since the Act gives it no discretion in this respect.
For these reasons I would dismiss the applica tion filed by respondent and the mis -en-cause.
LE DAIN J.: I concur.
HYDE D.J.: I concur.
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