(f) Powers of Umpire
In principle, all decisions of the Commission are subject to appeal to a Board of Referees, and all decisions of the Board of Referees are subject to review by an Umpire.
The way to challenge a decision of the Commission before the Board of Referees is by way of an appeal resulting in a trial de novo. However, the jurisdiction of an Umpire is not that of an appellate court. Although the word "appeal" is used in the legislation to describe the procedure before an Umpire, an Umpire's jurisdiction is not an appeal in the usual sense of the word nor is it a trial de novo.
An appeal to an Umpire is a proceeding in the nature of judicial review. The role of the Umpire is to review the decision of the Board of Referees. The Act does give the Umpire, among other possibilities, the option of giving the decision that the Board should have given, but his or her powers to intervene as defined in the legislation are strictly the powers of a reviewing body.
Canada (A.G.) v. Cole, [1983] 1 F.C. 425 (F.C.A.) A-20-82 Judgment of the federal court of appeal
Roberts v. C.E.I.C. [1985], F.C.J. No. 413 (F.C.A.) A-595-84 Judgment of the federal court of appeal
Taylor v. Minister of Employment and Immigration [1991], F.C.J. No. 508 (F.C.A.) A-681-90 Judgment of the federal court of appeal
Canada (A.G.) v. McCarthy, August 5, 1994, F.C.J. No. 1158 (F.C.A.) A-600-93 Judgment of the federal court of appeal
Dunham v. Canada (A.G.), September 27, 1996, F.C.J. No. 1271 (F.C.A.) A-708-95 Judgment of the federal court of appeal
It is not the role of an Umpire to make findings of credibility. An appeal to an Umpire is not a de novo proceeding where claimants are entitled to testify on their own behalf.
An Umpire may only consider those questions and issues which were raised before the Board of Referees. An Umpire is not and cannot be seized of an argument unless it has been raised before the Board.
Hamilton v. Canada (A.G) [1988], F.C.J. No. 269 (F.C.A.) A-175-87 Judgment of the federal court of appeal
Canada (A.G.) v. Girard, September 18, 1997, F.C.J. No. 1226 (F.C.A.) A-6-97
Judgment of the federal court of appealCanada (A.G.) v. Badwal, [1998], F.C.J. No. 1697 (F.C.A.) A-95-98, A-96-98 Judgment Of The Federal Court Of Appeal
Canada (A.G.) v. Garg, [2004], F.C.J. No. 2063 (F.C.A.) A-221-04 Judgment Of The Federal Court Of Appeal
Canada (A.G.) v. Mason, 2009 FCA 68 (F.C.A.) A-351-08 Judgment Of The Federal Court Of Appeal
However, the failure of an Umpire either to decide the necessary questions of fact and give the decision that, in his or her judgment, should have been given or to refer the matter back to the Board of Referees with appropriate directions, amounts to a refusal of jurisdiction.
It is now settled that the Board of Referees and the Umpire do have jurisdiction to exercise a discretionary power given to the Commission by the legislation and which the Commission exercised in a judicially incorrect manner.
Nevertheless, giving the decision that should have been given is merely a parallel option to referring the matter back to the body (the Commission) that was initially empowered to decide it for a new decision. The choice to be made between the two options requires serious thought. The decision should be made by the body that is best able to make it.
The broad jurisdiction of an Umpire to "decide any question of law or fact that is necessary for the disposition of any appeal" is properly exercised when the Board fails to make findings of fact relevant to its decision.
Umpires and Boards of Referees do not have the discretion to suspend the operation of a penalty imposed by the Commission pending the determination of an appeal against the penalty itself.
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2010-06-01