Ayai v. EI Canada – FCA: Individual’s Appeal Dismissed Since He Was Unwilling to Seek Other Employment

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http://decisions.fca-caf.gc.ca/site/fca-caf/decisions/en/item/65348/index.do New Window

Ayai v. Employment Insurance of Canada[1] (December 19, 2013) was an EI appeal where the Umpire had disallowed the applicant’s claim to sickness benefits on the basis that he had not provided proper medical evidence[2] but, inexplicably, failed to deal with his claim for regular benefits.  While the court would have normally have sent the case back to the Umpire to deal with the claim for regular benefits the record disclosed that the applicant refused to look for any other job and, accordingly, dismissed the appeal:

[9]               The Umpire’s failure to deal with Mr. Ayai’s appeal with respect to regular benefits would normally result in the matter being sent back to the Umpire for a ruling. However, in light of the evidence before the Board of Referees to the effect that Mr. Ayai was not prepared to look for or accept other employment, based, it seems, on his view of a constitutional right to work for his regular employer to the exclusion of all others, the outcome of such a referral would be a foregone conclusion.

[10]           The remedies available on judicial review are discretionary, even where it is shown that intervention would be warranted. This was recently confirmed by the Supreme Court and this Court. In Dennis v. Adams Lake Band, 2011 FCA 37, [2011] F.C.J. No. 150, this Court wrote, paragraphs 28 and 30:

28     … MiningWatch Canada v. Canada (Fisheries and Oceans), 2010 SCC 2, [2010] 1 S.C.R. 6. … provides us with more guidance about the power of a reviewing court not to quash a decision of an administrative body, even when there are grounds for doing so.

30     The message in MiningWatch is that the broadest range of practical factors must be considered and legal error or non-compliance should not be given undue weight: the practicalities may outweigh the legalities.

[11]           In this case, the Umpire’s error cannot alter the inevitable outcome of Mr. Ayai’s application for judicial review. As a result, the interests of justice are best served by dismissing it now rather than referring it back to the Umpire.  Since no costs were requested, none will be awarded.

[1] 2013 FCA 294.

[2] In fact, his doctor “certified that he was able to work at light duties but there were no such jobs with his employer” para. [4].