APPENDIX: CASE LAW SUMMARIES
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A: THE BOARD: its status and jurisdiction
MCNAIR, J. IN CUB 20783 (CRAWFORD)
Boards of referees sitting on appeals from decisions of the Commission are required to act as independent, impartial tribunals in determining the rights of the matter before them. The proceeding is appellate in nature and must never be permitted to degenerate into something akin to an inquisitorial process. Boards of referees are generally masters of their own procedure. However, they are bound to observe the principles of natural justice and follow the rules of procedure of fair play with a view to ensuring that the appellant knows the case he has to meet and is afforded full and adequate opportunity to answer the same. Any bias or reasonable apprehension thereof on the part of the chairperson and board members will suffice to taint the whole proceeding and render the decision illegal.
MAHONEY, J. IN A-175-87(HAMILTON)
It is trite law that what a Board of Referees, an Umpire and this Court must deal with is the decision that the Commission made, not that which it might and perhaps, in an exercise of common sense, should have made. Boards of Referees, being forums of common sense, sometimes expose its initial absence by dealing with a decision that was not made.
L. MARCEAU, J. IN A-708-95 (DUNHAM)
There is no reason to think that the Unemployment Insurance Act is unique and that the powers it confers on the agency given the task of administering it must be analyzed in isolation, without regard for the general principles of our legal system. The discretion given to the Commission is no different from the discretionary powers given to any other lower tribunal or body of the same sort. We are quite familiar with the situations in which a tribunal hearing an appeal or review of a discretionary decision of an authority subject to such review may intervene. A discretionary decision made on the basis of irrelevant considerations, or without regard for all of the relevant considerations, must be disapproved and set aside by the appeal or review tribunal. The Court has repeatedly stated that discretionary decisions of the Commission do not fall outside that rule.
PRATTE, J. IN A-42-90(CHARTIER)
The decisions of the Commission refusing to extend time for appeal were made under section of the Unemployment Insurance Act, which gives the Commission the discretionary power to extend time for appeal "for special reasons". Even if we assume that these decisions could be appealed, as was held in the Nixon-Nixon v. CEIC, A-649-86, December -4, case, nonetheless they were appeals from decisions made in the exercise of a discretionary power, which appeals the board of referees could not allow unless it believed that the Commission had not exercised its discretion judicially, had considered irrelevant matters or had failed to consider relevant matters. The board of referees could not, as it did in this case, simply substitute its discretion for that of the Commission.
MARIN, J. IN CUB 44584A (CARDUCCI)
Contrary to the opinion expressed by the Board regarding the Commission's discretion, I believe that discretion is not at issue and that section above does not vest the Commission with any discretionary authority.
I now refer to three excerpts taken from volume 1of the 3rd edition of Droit administratif (1991) by Patrice Garant. He defines discretionary authority on page 306:
According to De Laubadere, discretionary authority exists when, in the presence of given questions of fact, the administrative authority is free to make any decisions, can choose from these decisions, in other words, when his conduct has not been prescribed to him beforehand by law. [TRANSLATION]
He adds the following on page 308:
Therefore, the courts shall not consider discretionary authority which involves the enforcement of predetermined standards in the act or regulations, nor that which involves determination whether the factual circumstances required for the standard to be enforced do exist. [TRANSLATION]
On page 314, he discusses the assignment of discretionary authority as follows:
In legislation, binding authority exists when the word "must" or "shall" is used, while discretionary authority generally exists when the word "may" is used. Other expressions include "if deemed suitable","if he deems advisable","if he believes such is in the public interest", "if necessary", "may at his discretion" or "can when he deems advisable".
When nothing in the act indicates a contrary intention, the term "can" vests discretionary authority, i.e., an option and not a duty. However, the term "can" may be omitted, and the context shall indicate that Parliament has nonetheless conferred true discretionary authority. [TRANSLATION]
I subscribe to the reasoning in these excerpts.
JOYAL, J. IN CUB 12280 (ALARIE)
Upon reading the subsection, I find it obvious that a Board of Referees has proper jurisdiction if with the consent of the parties involved, the Chairman and one other member are present.
A court's jurisdiction always rests upon the strictest provisions. In order to maintain the integrity of the justice administration system and respect for laws and procedures, form is as important as content. Furthermore, the jurisprudence has always adopted that principle.
In the decision in Grillas vs. the Minister of M & I, (1972) S.C.R. 577, Judge Pigeon wrote on page 594:
As Judge Cartwright (puisne judge at the time) had believed in the case of Mehr vs. The Law Society of Upper Canada (955) S.C.R. 344, I am inclined to believe that, in the case of commissions with quasi-judiciary powers, no member who has not heard all the evidence may participate validly in the decision. [TRANSLATION]
THURLOW, J. IN A-737-82 (VON FINDENIGG)
Nowhere is there any provision defining what powers are exercisable by the Board in disposing of an appeal. Parliament, in providing for appeals to such a Board, must be taken to have intended to confer an effective right of appeal and implicitly to have authorized the Board to give any decision that in the circumstances of the case before it is necessary to ensure that the result is in accordance with the law. Where that result follows from the facts before the Board, the Board, in my opinion, can and must give judgment accordingly. But where, as here, the correct application of the law to the situation is such that the matter cannot be finally resolved until the Commission has properly exercised a power reserved by the statute only for its determination it seems to me to be necessarily implied that the Board can and should refer the matter back to the Commission for the exercise by it of that power.
PRATTE, J. IN A-84-85 (GRANGER), CONFIRMED BY THE SUPREME COURT
It is beyond question that the Commission and its representatives have no power to amend the Act, and that therefore the interpretation which they may make of the Act does not by itself have the force of law. It is equally certain that any commitment which the Commission or its representatives may make, whether in good or bad faith, to act in a way other than that prescribed by the Act would be absolutely void and contrary to public order.
Once the applicant's argument is seen in its true light it is clear that it must be dismissed. A judge is bound by the law. He cannot refuse to apply it, even on grounds of equity.
LEDAIN, J. IN A-108-76 (PIROTTE)
It is a fundamental principle that ignorance of law does not excuse failure to comply with a statutory provision. Mihm vs The Minister of Manpower and Immigration, (1970) S.C.R., 348, at p. 353. The principle is sometimes criticized as implying an unreasonable imputation of knowledge but it has long been recognized as essential to the maintenance and operation of the legal order. Because of its very fundamental character I am unable to conclude, without more specific indication, that Parliament intended that "good cause" in s.20(4) should include ignorance of law.
The admission of ignorance of the law as good cause for delay would, as the umpire has said, introduce considerable uncertainty into the administration of the Act without the possibility of any clear and reliable criteria to determine when it should apply in particular cases.