A-463-90
Norman Severud (Applicant)
v.
Canada Employment and Immigration Commis
sion (Respondent)
INDEXED AS: SEVERUD V. CANADA (EMPLOYMENT AND IMMI
GRATION COMMISSION) (CA.)
Court of Appeal, Heald, Hugessen and Stone
JJ.A.—Vancouver, January 28 and 31, 1991.
Judicial review — Applications to review — Unemployment
insurance — Whether Board of Referees having jurisdiction to
"clarify" earlier decision — Functus officio rule to be applied
to administrative tribunals inflexible manner.
Unemployment insurance — Whether Board of Refugees
having jurisdiction to "clarify" earlier decision — Absence of
statutory authority — As earlier decision failing to dispose of
one of two issues before Board, common sense dictating Board
should be allowed to complete task.
This was an application to set aside a decision of an Umpire
under the Unemployment Insurance Act, dismissing the appli
cant's appeal from a decision of the Board of Referees purport
ing to "clarify" an earlier decision. There were two separate,
but related issues before the Board. The Board allowed the
appeal without indicating to which issue it was addressing
itself, although it was logically impossible to allow the appeal
with respect to both issues. The applicant argued that he had
been successful with respect to both issues. The Commission
argued that the decision applied to only one issue. At the
applicant's request, the Board held a second hearing to inter
pret its first decision. It held that its previous decision had
failed to address one of the issues and that the appeal on that
issue should be dismissed. The issue upon this application was
as to whether the Board had jurisdiction to "clarify" its earlier
decision.
Held, the application should be dismissed.
If the Board lacks jurisdiction, it can be conferred neither by
the applicant requesting a clarification nor by the fact that the
clarification is the only rational interpretation. But in the
special circumstances of this case the Board, even in the
absence of specific statutory authority, had jurisdiction to
clarify or interpret its earlier decision because it was logically
impossible to allow the appeal on both issues, and the decision
was incomplete in that it failed to dismiss the appeal on the
other issue. While the decision could have been appealed to the
Umpire, such an appeal is limited by section 80 of the Unem
ployment Insurance Act to questions of law and jurisdiction.
While it cannot be said that the principle of functus officio has
no application to administrative tribunals, it should not be
applied in a formalistic and inflexible manner to board deci
sions which are subject to appeal only on points of law.
The original decision failed to dispose of one of the issues
before the Board. That issue was one which the Act empowered
the Board to dispose of. The statute does not specify any
remedies which the Board is empowered to apply and the Board
did not purport to select any particular remedy. Common sense
dictates that it should be allowed to complete its task, some
thing which only the Board could do. So long as it remained
undone the dispute between the parties — for which the Act
provides a speedy and inexpensive means of resolution —
remained unresolved.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Federal Court Act, R.S.C., 1985, c. F-7, s. 28.
Unemployment Insurance Act, R.S.C., 1985, c. U-1, ss.
9(6), 79, 80, 86.
Unemployment Insurance Regulations, C.R.C., c. 1576,
s. 66.
CASES JUDICIALLY CONSIDERED
APPLIED:
Chandler v. Alberta Association of Architects, [1989] 2
S.C.R. 848; (1989), 101 A.R. 321; 62 D.L.R. (4th) 577;
[1989] 6 W.W.R. 521; 70 Alta. L.R. (2d) 193; 40
Admin. L.R. 128; 36 C.L.R. 1; 99 N.R. 277.
COUNSEL:
R. Tim Louis for applicant.
Paul Partridge for respondent.
SOLICITORS:
Tim Louis & Company, Vancouver, for
applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
HUGESSEN J.A.: This section 28 [Federal Court
Act, R.S.C., 1985, c. F-7] application is taken
against a decision of Reed J., sitting as an Umpire
under the Unemployment Insurance Act [R.S.C.,
1985, c. U-1], in which she dismissed the appli
cant's appeal against a decision by the Board of
Referees dated March 16, 1988. By that decision
the Board, acting at the request of the applicant,
purported to "clarify" an earlier decision which
was dated October 28, 1987.
The only issue of any consequence on the
present application has to do with the jurisdiction
of the Board to make the second decision and to
enter upon the exercise of clarifying or interpret
ing its earlier decision.
A number of preliminary observations are in
order. In the first place, there is no statutory
mandate for the Board to do as it did, it being
common ground that the -conditions precedent to
the exercise of the powers conferred by section 86
of the Unemployment Insurance Act' have not
been met in this case.
Secondly, the fact that the Board undertook to
clarify its earlier decision at the specific request of
the present applicant cannot in itself confer juris
diction if there is none in law.
Finally, even though the clarification or inter
pretation issued by the Board was in fact, as the
learned Umpire found, the only rational one open
to them, that fact does not confer jurisdiction on
the Board, the Umpire or this Court to issue a
binding declaration to that effect in these proceed
ings. It may, of course, render the present applica
tion academic and of no possible ultimate benefit
to the applicant but that has no bearing on the
strictly legal question.
In its decision of October 28, 1987 the Board
had to deal with two separate but related issues.
The first was the applicant's appeal of the Com
mission's decision of August 20, 1987 denying his
claim for benefit on the ground that he had only
12 insurable weeks in his qualifying period while a
minimum of 16 such weeks was required (A.B.,
page 38). The second had to do with the Commis
sion's refusal of his request (under subsection
9(6)) to retroactively voluntarily terminate as of
December 7, 1986 a benefit period which had been
established in his favour from August 10, 1986. In
' 86. The Commission, a board of referees or the umpire may
in respect of any decision given in any particular claim for
benefit rescind or amend the decision on the presentation of
new facts or on being satisfied that the decision was given
without knowledge of, or was based on a mistake as to, some
material fact.
its observations to the Board the Commission
accurately stated the issues:
Norman Severud established a claim for Unemployment Insur
ance effective August 10, 1986 after having worked for B & C
List (1982) Ltd. (Exhibit 2.1, 2.2). He filed again several
weeks later having again worked for B & C List (1982) Ltd.
(Exhibit 3.1, 3.2, 4). His claim of August 10, 1986 was
renewed effective December 7, 1986 (Exhibit 5).
Mr. Severud subsequently enquired about his option to termi
nate his claim in favour of a new claim and, after having been
advised of the pros and cons, chose not to disturb the existing
claim (Exhibit 6). His claim continued until the maximum
duration was reached and the claim terminated whereupon he
refiled (Exhibit 7.1-7.3).
Mr. Severud was advised that he lacked sufficient insured
weeks to qualify for a new claim (Exhibit 10). He has appealed
that decision and in so doing pointed to his earlier decision not
to terminate his claim of August 10, 1986 saying that he based
his decision on misinformation by the Commission (Exhibit
11). The Commission has considered Mr. Severud's request to
retroactively voluntarily terminate his earlier claim and has
denied his request (Exhibit 12). Hence there are two issues
before the Board of Referees, namely, Mr. Severud's request
for a retroactive voluntary termination of his claim and his
failure to prove sufficient insurable weeks to establish a subse
quent claim (Exhibit 10). Should Mr. Severud's appeal be
successful on the issue of retroactive voluntary termination, he
would qualify for a claim effective December 7, 1986 as the
qualifying conditions at that time differ from the requirements
in August 1987. Hence, the issue of Mr. Severud's failure to
establish a claim in August 1987 would not need to be
addressed.
The point made by the Commission in the final
sentence of the above extract was repeated and
expanded upon by the learned Umpire in her
reasons when she said:
If the Board was allowing the claimant's appeal on the first
issue, then, there was no need for it to have considered the
second issue. Conversely, if the Board was allowing the claim
ant's appeal on the second issue, it would have been redundant
for it to have decided the first issue.
The decision of the Board, rendered 28 October
1987, was as follows:
Two issues:
(1) Benefit Period Not Established — Sections 17 and 18 of
the Unemployment Insurance Act.
(2) Voluntary Termination of Claim — Section 20(3)(6) of
the Unemployment Insurance Act
The claimant attended and was represented by his lawyer
Mr. Tim Louis.
Mr. Louis informed the Board that the claimant had no
argument with the facts submitted in the docket. The issue was
whether Mr. Severud had been fully informed of his options on
the document of "pros & cons" as shown in exhibit #6. The
unemployment rate variable was not included as a factor in
spite of its possible fluctuation. It was over 11.5% at time
claimant made his decision to continue his original claim on
January 20, 1987 when he made his decision; the unemploy
ment rate 11.4% from July 19, 1987 to August 15, 1987. Mr.
Severud signed the form provided and understood the options
as they were outlined, but the document contained no reference
to the key unemployment rate factor. Mr. Louis, on behalf of
the claimant was basing his appeal on the grounds of `Informed
Consent'.
The Board after review of both the oral and written submission
find the claimant was not fully informed of all the pros and
cons and the appeal is allowed.
The reference to "pros and cons" is to a docu
ment (A.B., page 31) which bears that title given
by the Commission to the applicant January 20,
1987; its purpose was to assist the applicant in
deciding at that time whether or not to voluntarily
terminate his earlier benefit period (August 10,
1986) and establish a new one effective December
7, 1986. Clearly it was relevant only to the issue of
retroactive voluntary termination (described by
the Board as issue number 2) since it could have
no possible bearing on whether or not the applicant
had the necessary number of qualifying weeks in
August 1987, seven months later.
The Commission read the Board's decision of
October 28, 1987 as dealing only with the issue
relating to retroactive voluntary termination. The
applicant, however, took another view. Focussing
on the last four words of that decision, "the appeal
is allowed", he contended that he had won on both
issues and that he was entitled both to retroactive
ly terminate his August 1986 benefit period and to
keep the benefit of that old period while at the
same time qualifying for a new period commenc
ing in August of 1987 even though having only 12
insurable weeks when a minimum of 16 was
required.
The parties being at an impasse, the applicant
requested a hearing from the Board "to seek fur-
ther clarification" of the decision. The Board
granted the request and by its decision of March
16, 1988 held, by a majority, that the first decision
"failed to address Issue #1", and that the appeal
on that issue should be dismissed. The dissenting
member of the Board indicated that in his view the
Board's decision of October 28, 1987 intended to
and did allow the appeal on both issues. As
indicated, an appeal to the Umpire was unsuccess
ful.
It is my opinion that in the special circum
stances of this case the Board, even in the absence
of specific statutory authority, had the jurisdiction
to do what it did. Its original decision was ambig
uous in the sense that although there were two
issues before the Board it was logically impossible
to allow the appeal on both of them at the same
time. The words "the appeal is allowed" could only
mean that the applicant had succeeded on one or
the other. By the same token, the decision was
incomplete in that it failed to dismiss the appeal on
the other issue. While the decision could have been
appealed to the Umpire, such an appeal is limited
by section 80 of the Unemployment Insurance Act
to questions of law and jurisdiction.
In Chandler v. Alberta Association of Archi
tects, [1989] 2 S.C.R. 848 the Supreme Court had
to deal with a very similar jurisdictional problem
to the one raised here. An administrative tribunal,
the Practice Review Board of the Association of
Architects, having held a hearing, made a report
containing a number of findings which were found
to be beyond its jurisdiction. The Board then
indicated that it proposed to continue the original
hearing so as to consider making another report.
The objection was taken that the Board was func-
tus officio, i.e., without jurisdiction. Sopinka J.,
speaking for a majority of the Supreme Court,
dealt with that contention as follows [at pages
860-862]:
I am, however, of the opinion that the application of the
functus officio principle is more appropriately dealt with in the
context of the following characterization of the current state of
the Board's proceedings. The Board held a valid hearing into
certain practices of the appellants. At the conclusion of the
hearing, in lieu of considering recommendations and directions,
it made a number of ultra vires findings and orders which were
void and have been quashed. In these circumstances, is the
decision of the Board final so as to attract the principle of
functus officio?
Functus Officio
The general rule that a final decision of a court cannot be
reopened derives from the decision of the English Court of
Appeal in In re St. Nazaire Co. (1879), 12 Ch. D. 88. The basis
for it was that the power to rehear was transferred by the
Judicature Acts to the appellate division. The rule applied only
after the formal judgment had been drawn up, issued and
entered, and was subject to two exceptions:
1. where there had been a slip in drawing it up, and,
2. where there was an error in expressing the manifest inten
tion of the court. See Paper Machinery Ltd. v. J. O. Ross
Engineering Corp., [ 1934] S.C.R. 186.
In Grillas v. Minister of Manpower and Immigration, [1972]
S.C.R. 577, Martland J., speaking for himself and Laskin J.,
opined that the same reasoning did not apply to the Immigra
tion Appeal Board from which there was no appeal except on a
question of law. Although this was a dissenting judgment, only
Pigeon J. of the five judges who heard the case disagreed with
this view. At page 589 Martland J. stated:
The same reasoning does not apply to the decisions of the
Board, from which there is no appeal, save on a question of
law. There is no appeal by way of a rehearing.
In R. v. Development Appeal Board, Ex p. Canadian Indus
tries Ltd., the Appellate Division of the Supreme Court of
Alberta was of the view that the Alberta Legislature had
recognized the application of the restriction stated in the St.
Nazaire Company case to administrative boards, in that
express provision for rehearing was made in the statutes
creating some provincial boards, whereas, in the case of the
Development Appeal Board in question, no such provision
had been made. The Court goes on to note that one of the
purposes in setting up these boards is to provide speedy
determination of administration problems
He went on to find in the language of the statute an intention
to enable the Board to hear further evidence in certain circum
stances although a final decision had been made.
I do not understand Martland J. to go so far as to hold that
functus officio has no application to administrative tribunals.
Apart from the English practice which is based on a reluctance
to amend or reopen formal judgments, there is a sound policy
reason for recognizing the finality of proceedings before
administrative tribunals. As a general rule, once such a tribunal
has reached a final decision in respect to the matter that is
before it in accordance with its enabling statute, that decision
cannot be revisited because the tribunal has changed its mind,
made an error within jurisdiction or because there has been a
change of circumstances. It can only do so if authorized by
statute or if there has been a slip or error within the exceptions
enunciated in Paper Machinery Ltd. v. J.O. Ross Engineering
Corp., supra.
To this extent, the principle of functus officio applies. It is
based, however, on the policy ground which favours finality of
proceedings rather than the rule which was developed with
respect to formal judgments of a court whose decision was
subject to a full appeal. For this reason I am of the opinion that
its application must be more flexible and less formalistic in
respect to the decisions of administrative tribunals which are
subject to appeal only on a point of law. Justice may require the
reopening of administrative proceedings in order to provide
relief which would otherwise be available on appeal.
Accordingly, the principle should not be strictly applied
where there are indications in the enabling statute that a
decision can be reopened in order to enable the tribunal to
discharge the function committed to it by enabling legislation.
This was the situation in Grillas, supra.
Furthermore, if the tribunal has failed to dispose of an issue
which is fairly raised by the proceedings and of which the
tribunal is empowered by its enabling statute to dispose, it
ought to be allowed to complete its statutory task. If, however,
the administrative entity is empowered to dispose of a matter
by one or more specified remedies or by alternative remedies,
the fact that one is selected does not entitle it to reopen
proceedings to make another or further selection. Nor will
reserving the right to do so preserve the continuing jurisdiction
of the tribunal unless a power to make provisional or interim
orders has been conferred on it by statute. [Underlining added.]
In my view the underlined words describe exact
ly what has occurred here. The Board of Referees
failed in its original decision to dispose of one of
the issues before it. That issue was one which the
Act empowered it to dispose of. The statute does
not specify any remedies which the Board is
empowered to apply, 2 and the Board did not in
fact purport to select any particular remedy. It
simply allowed the appeal without saying which of
the Commission's decisions was found to be bad.
Common sense as well as sound policy would
indicate that it should be allowed to complete its
task. This is something which only the Board could
do, and so long as it remained undone the dispute
between the parties, for which the Act provides a
speedy and inexpensive means of resolution,
remained unsolved.
2 Indeed s. 79 of the Unemployment Insurance Act and s. 66
of the Unemployment Insurance Regulations [C.R.C., c. 1576]
are entirely silent as to the substance of the Board's decision
and speak only of matters of form.
I would dismiss the application.
HEALD J.A.: I agree.
STONE J.A.: 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.