Canada (Attorney General) v. Green
The Umpire's decision was set aside and the matter remitted to the Chief Umpire or delegate to determine whether, in the absence of the tape recording, the available written record is sufficient to enable an Umpire to fairly decide the appeal.
Source-derived case information.
- Citation
- 2005 FCA 37
- Parties
- Applicant: ATTORNEY GENERAL OF CANADA; Respondent: GLEN GREEN
- Court
- Federal Court of Appeal
- Jurisdiction
- Canada
- Judgment Date
- 26 January 2005
- Procedural Posture
- Appeal to the Federal Court of Appeal / Judgment on Application to Set Aside Umpire Decision
- Outcome
- Application allowed; decision of the Umpire set aside; matter remitted to the Chief Umpire or delegate to determine whether the available record without the tape is sufficient to enable an Umpire to fairly decide the appeal.
- Legal Topics
- Tape Recording of Hearings, Remittal, Sufficiency of Written Record, Procedural Fairness
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
ATTORNEY GENERAL OF CANADA
Applicant
GLEN GREEN
Respondent
Procedural Posture
Appeal to the Federal Court of Appeal / Judgment on Application to Set Aside Umpire Decision
Legal Issues
- 1 Whether an Umpire may set aside a Board of Referees decision because the hearing was not properly recorded without first determining whether the available written record is sufficient to decide the appeal fairly
- 2 Whether the absence of a tape recording of the Board hearing automatically requires a new hearing or remittal
- 3 Proper remedial step when evidence has been lost or destroyed
Ratio Decidendi
The Umpire's decision was set aside and the matter remitted to the Chief Umpire or delegate to determine whether, in the absence of the tape recording, the available written record is sufficient to enable an Umpire to fairly decide the appeal.
Court Disposition
Application allowed; decision of the Umpire set aside; matter remitted to the Chief Umpire or delegate to determine whether the available record without the tape is sufficient to enable an Umpire to fairly decide the appeal.
Orders
- Application allowed
- Decision of the Umpire set aside
Full Case Text
Judgment text and source record
1 paragraphs
Canada (Attorney General) v. Green Court (s) Database Federal Court of Appeal Decisions Date 2005-01-26 Neutral citation 2005 FCA 37 File numbers A-332-04 Decision Content Date: 20050126 Docket: A-332-04 Citation: 2005 FCA 37 CORAM: DÉCARY J.A. NADON J.A. SEXTON J.A. BETWEEN: ATTORNEY GENERAL OF CANADA Applicant and GLEN GREEN Respondent Heard at Vancouver, British Columbia on January 26, 2005. Judgment delivered from the Bench at Vancouver, British Columbia on January 26, 2005. REASONS FOR JUDGMENT OF THE COURT BY: DÉCARY J.A. Date: 20050126 Docket: A-332-04 Citation: 2005 FCA 37 CORAM: DÉCARY J.A. NADON J.A. SEXTON J.A. BETWEEN: ATTORNEY GENERAL OF CANADA Applicant and GLEN GREEN Respondent REASONS FOR JUDGMENT OF THE COURT (Delivered from the Bench at Vancouver, British Columbia on January 26, 2005) DÉCARY J.A. [1] This is yet another case dealing with the failure to properly record on tape the hearing before a Board of Referees. Relying on a decision rendered a few months earlier by an umpire in Valladolid (CUB 54497 A), the Umpire refused to send the matter back to the Board for a new hearing and simply set aside the Board's decision, "in the hope that in the future, Board of Referees will be more efficient and careful so as not to destroy the evidence thus violating a basic principle of natural justice". [2] Valladolid, however, has since been reversed by this Court (Canada (Attorney General) v. Valadolid, 2004 FCA 142). Evans J.A. held that the Umpire had erred in law "by failing to consider whether, despite the absence of the tape, the written record before him was sufficient to enable him to fairly determine the appeal.". [3] The application will be allowed, the decision of the Umpire will be set aside and the matter will be remitted to the Chief Umpire or his delegate to determine whether, in the absence of the tape recording, the record of what is available is sufficient to enable an umpire to fairly decide the appeal. (Sgd.) "Robert Décary" J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-332-04 STYLE OF CAUSE: Her Majesty the Queen v. Glen Green PLACE OF HEARING: Vancouver, British Columbia DATE OF HEARING: January 26, 2004 REASONS FOR JUDGMENT : (Décary, Nadon & Sexton JJ.A.) RENDERED FROM THE BENCH BY: Décary, J.A. DATED: January 26, 2004 APPEARANCES: Ms. Mary-Ann Barker FOR THE APPLICANT FOR THE RESPONDENT SOLICITORS OF RECORD: Mr. John H. Sims, Q.C. FOR THE APPLICANT Deputy Attorney General for Canada FOR THE RESPONDENT