A-129-81
Attorney General of Canada (Applicant)
v.
Lee Langille (Respondent)
Court of Appeal, Thurlow C.J., Heald J. and
Lalande D.J.—Ha lifax, November 4, 1981.
Judicial review — Unemployment insurance — Application
to review and set aside Chief Umpire's decision to confirm the
decision of the Board of Referees — Chief Umpire treated
applicant's appeal as being governed by the new s. 95 of the
Unemployment Insurance Act, 1971 — Applicant's appeal was
commenced before the coming into force of the new s. 95
Whether the scope of applicant's appeal is that provided by s.
95 as it was before the proclamation of the new s. 95 —
Unemployment Insurance Act, 1971, S.C. 1970-71-72, c. 48, s.
95 — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28
— Interpretation Act, R.S.C. 1970, c. I-23, s. 35(c),(e).
APPLICATION for judicial review.
COUNSEL:
Michael Butler and J. D. Bissell for appli
cant.
R. A. Kanigsberg, Q.C. for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Kanigsberg Cordon Stern & Freeman, Hali-
fax, for respondent.
The following are the reasons for judgment
rendered in English by
TI3URLOW C.J.: Two points were argued on this
application, the first, whether the learned Chief
Umpire erred as to the scope of the appeal before
him, the other whether the material before him
was sufficient to support his confirmation of the
decision of the Board of Referees.
I would have no difficulty in reaching the con
clusion that there was ample material in the record
upon which the Board of Referees and the Chief
Umpire could reach their conclusions. However, it
appears that the learned Chief Umpire treated the
appeal before him as being governed by the new
section 95 of the Unemployment Insurance Act,
1971, S.C. 1970-71-72, c. 48, which prescribes the
grounds on which an appeal may be taken in
restrictive terms similar to those provided for
review applications under subsection 28(1) of the
Federal Court Act, R.S.C. 1970 (2nd Supp.), c.
10, and that he did not consider it open to him to
reach his own conclusions on the evidence. As the
applicant's appeal to the Umpire was commenced
on February 5, 1980, that is to say, before the
coming into force of the new section 95 on May 1,
1980, I am of the opinion that the scope of the
applicant's appeal to the Umpire was not restricted
to an appeal on the grounds set out in the new
section 95 but was a plenary appeal as provided in
the earlier section under which it was asserted.
The right of appeal is in my view a substantive
right and is not affected by the repeal of the
provision authorizing it and the substitution of a
new and narrower right of appeal. See paragraphs
35(c) and (e) of the Interpretation Act, R.S.C.
1970, c. I-23.
Accordingly, I would set aside the decision and
refer the matter back to an Umpire to be dealt
with on the basis that the scope of the applicant's
appeal is that provided by section 95 of the Unem
ployment Insurance Act, 1971 as it was before the
proclamation of the new section 95 enacted by
section 56 of the Statutes of Canada 1976-77,
c. 54.
* * *
The following are the reasons for judgment
rendered in English by
HEALD J.: I agree with the Chief Justice that
the decision of the Chief Umpire should be set
aside and the matter referred back to an Umpire
to be dealt with on the basis that the scope of the
applicant's appeal is that provided by section 95 of
the Unemployment Insurance Act, 1971, as it was
before the proclamation of the new section 95 on
May 1, 1980. In view of this conclusion, I do not
consider it necessary to express a view on the
sufficiency or otherwise of the material in the
record upon which the Board of Referees and the
Chief Umpire reached their conclusions.
* * *
LALANDE D.J.: I agree.
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.