Canada (Attorney General) v. Lee

Canada (Attorney General) v. Lee Court (s) Database Federal Court of Appeal Decisions Date 2006-09-01 Neutral citation 2006 FCA 292 File numbers A-64-06 Decision Content Date: 20060901 Docket: A-64-06 Citation: 2006 FCA 292 Present: SHARLOW J.A. BETWEEN: ATTORNEY GENERAL OF CANADA Applicant and DARCY LEE Respondent Dealt with in writing without appearance of parties. Order delivered at Ottawa, Ontario, on September 1, 2006. REASONS FOR ORDER BY: SHARLOW J.A. Date: 20060901 Docket: A-64-06 Citation: 2006 FCA 292 Present: SHARLOW J.A. BETWEEN: ATTORNEY GENERAL OF CANADA Applicant and DARCY LEE Respondent REASONS FOR ORDER SHARLOW J.A. [1] The Attorney General of Canada is seeking judicial review of the decision of an Umpire (CUB 65087 dated December 9, 2005) dismissing his appeal from a decision of the Board of Referees. The dispute appears to relate to whether or not the respondent, Ms. Lee, should be disqualified from receiving employment insurance benefits. The position of the Crown is that Ms. Lee lost her employment as a result of her own misconduct. The position of Ms. Lee is that she was dismissed without cause. The Board of Referees agreed with Ms. Lee. The Umpire found no basis for reversing that decision. [2] On July 14, 2006, Ms. Lee, who is representing herself, served and filed a notice of motion under Rule 369 of the Federal Courts Rules, SOR/98-106, to seek an extension of time to file the respondent’s record. She says that the additional time is needed to obtain a transcription of a tape recording of the proceedings before the Board of Referees. She also seeks leave to include the transcript in her record. [3] Ms. Lee has filed a detailed affidavit in support of her application. The Crown apparently did not seek to cross-examine her on her affidavit. The Crown was entitled under Rule 369(2) to file a responding motion record within 10 days after being served with Ms. Lee’s motion record, but did not do so. [4] On August 8, 2006, before Ms. Lee’s motion was dealt with, the Crown filed a notice of motion to seek an extension of time to file a responding motion record. The only reason given is that “new research has revealed the need” for the Crown to oppose Ms. Lee’s motion to include the transcript in her record. The Crown’s material does not state what the new research revealed, or the grounds upon which the Crown wishes to oppose Ms. Lee’s motion. Ms. Lee has not responded to the Crown’s motion. [5] The Crown’s explanation for requesting an extension of time is not adequate because it discloses no basis for determining whether there is any merit in the Crown’s intended objection to Ms. Lee’s motion. The Crown’s motion for an extension of time will be denied. Ms. Lee’s motion will be dealt with as an unopposed motion. Her motion for an extension of time will be granted. [6] For the following reasons, Ms. Lee’s motion to include in her record the transcript of the proceedings before the Board will also be granted. The Crown’s application for judicial review states no specific grounds of review. The basis of the Crown’s challenge to the Umpire’s decision requires reference to the Crown’s application record, filed June 2, 2006. It indicates that the Crown proposes to argue that the Umpire should have reversed the decision of the Board of Referees because it reached an erroneous conclusion on the question of whether Ms. Lee had lost her employment as a result of her own misconduct. The Crown characterizes that as a question of mixed fact and law. That may well be correct, but it seems likely that Ms. Lee is also correct when she asserts that the factual component will be significant, and that the Crown’s application for judicial review will require a review of the evidence that was before the Board of Referees. I have no basis for concluding that the oral evidence presented to the Board ought to be excluded from that review. [7] The parties will bear their own costs of both motions regardless of the outcome of the Crown’s application for judicial review. “K. Sharlow” J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-64-06 STYLE OF CAUSE: ATTORNEY GENERAL OF CANADA v. DARCY LEE MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES REASONS FOR ORDER BY: SHARLOW J.A. DATED: SEPTEMBER 1, 2006 WRITTEN REPRESENTATIONS BY: Korinda McLaine FOR THE APPLICANT Darcy Lee ON HER OWN BEHALF SOLICITORS OF RECORD: John H. Sims, Q.C. Deputy Attorney General of Canada FOR THE APPLICANT Darcy Lee Little York, PEI ON HER OWN BEHALF