Hickey v. Canada (Attorney General)

Hickey v. Canada (Attorney General) Court (s) Database Federal Court of Appeal Decisions Date 2008-10-28 Neutral citation 2008 FCA 330 File numbers A-578-07 Decision Content Date: 20081028 Docket: A-578-07 Citation: 2008 FCA 330 CORAM: LINDEN J.A. SEXTON J.A. BLAIS J.A. BETWEEN: GERALDINE HICKEY Applicant and THE ATTORNEY GENERAL OF CANADA Respondent Heard at Halifax, Nova Scotia, on October 28, 2008. Judgment delivered from the Bench at Halifax, Nova Scotia, on October 28, 2008. REASONS FOR JUDGMENT OF THE COURT BY: LINDEN J.A. Date: 20081028 Docket: A-578-07 Citation: 2008 FCA 330 CORAM: LINDEN J.A. SEXTON J.A. BLAIS J.A. BETWEEN: GERALDINE HICKEY Applicant and THE ATTORNEY GENERAL OF CANADA Respondent REASONS FOR JUDGMENT OF THE COURT (Delivered from the Bench at Halifax, Nova Scotia, on October 28, 2008) LINDEN J.A. [1] In our view this application for judicial review must be allowed. [2] The Umpire should have employed the reasonableness standard of review in assessing the question of mixed fact and law involved in this application, that is, whether the payment made to the employee following the winding up of the pension plan was caused by the sale of the plant or whether the winding up was an independent transaction to be dealt with under Regulation 36(19)(b) pursuant to the Act (see Attorney General of Canada v. Kinkead [1994] F.C.J. 709). [3] The Umpire did not appear to apply this standard of review, but rather he appears to have substituted his own view of the evidence for that of the Board of Review, which is not permissible, as the Board had before it sufficient evidence upon which it could base its determination. [4] The application for judicial review will be allowed with one set of costs, the decision of the umpire will be set aside and the matter will be referred back to the Chief Umpire (or his designate) to be decided that the appeal from the Board of Review should be dismissed. "A.M. Linden" J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-578-07 APPLICATION FOR JUDICIAL REVIEW PURSUANT TO SECTION 28(1)(M) OF THE FEDERAL COURTS ACT OF A DECISION OF UMPIRE DAVID G. RICHE, IN THE MATTER OF THE EMPLOYMENT INSURANCE ACT, S.C. 1996, c. 29, DATED NOVEMBER 13, 2007. STYLE OF CAUSE: Geraldine Hickey v. The Attorney General of Canada PLACE OF HEARING: Halifax, Nova Scotia DATE OF HEARING: October 28, 2008 REASONS FOR JUDGMENT OF THE COURT BY: LINDEN, SEXTON, BLAIS JJ.A. DELIVERED FROM THE BENCH BY: LINDEN J.A. APPEARANCES: Annette Duffy FOR THE APPLICANT Melissa R. Cameron FOR THE RESPONDENT SOLICITORS OF RECORD: O'Dea, Earle Law Office St-John's, NL FOR THE APPELLANT/ APPLICANT John H. Sims, Q.C. Deputy Attorney General of Canada FOR THE RESPONDENT