Date: 20031124
Docket: A-566-02
MALONE J.A.
BETWEEN:
RICHARD R. TRAMER
Applicant
and
HUMAN RESOURCES DEVELOPMENT CANADA
Respondent
Heard at Winnipeg, Manitoba, on November 24, 2003.
Judgment delivered from the Bench at Winnipeg, Manitoba, on November 24, 2003.
REASONS FOR JUDGMENT BY: SEXTON J.A.
Date: 20031124
Docket: A-566-02
CORAM: LINDEN J.A.
MALONE J.A.
BETWEEN:
RICHARD R. TRAMER
Applicant
and
HUMAN RESOURCES DEVELOPMENT CANADA
Respondent
REASONS FOR JUDGMENT
(Delivered from the Bench at Winnipeg, Manitoba on November 24, 2003)
[1] The Applicant, who had worked as a school psychologist in Winnipeg, applied for Employment Insurance benefits (E.I.) after losing his employment for health reasons.
[2] He also applied for Long Term Disability Benefits from the Manitoba Teachers' Society Long Term Disability Plan. His applications for both sets of benefits were accepted.
[3] As a result of learning that the Applicant had received long term disability benefit from the Teachers' Plan, the Canada Employment and Immigration Commission (Commission) determined that these benefits constituted earnings pursuant to Section 35(2) of the Employment Insurance Regulations because the plan had not been voluntarily purchased by the Applicant and because the plan was not completely portable within the meaning of Regulation 35(8). The Commission eventually determined that the Applicant had received an overpayment of E.I. which would have to be repaid.
[4] Section 35(8) provides as follows:
35(8) For the purposes of paragraphs (2)©) and 7(b), a sickness or disability wage-loss indemnity plan is not a group plan if it is a plan that
a. is not related to a group of persons who are all employed by the same employer;
b. is not financed in whole or in part by an employer;
c. is voluntarily purchased by the person participating in the plan;
d. is completely portable;
e. provides constant benefits while permitting deductions for income from other sources, where applicable; and
f. has rates of premium that do not depend on the experience of a group referred to in paragraph (a).
[5] The Applicant appealed the Commission's decision to the Board of Referees who dismissed his appeal.
[6] The Applicant then appealed to the Umpire who, by decision dated June 7, 2002, dismissed the appeal, holding that the Manitoba Teachers' Society Long Term Disability Plan did not meet every aspect of Regulation 35(8) and, therefore, the monies received by the claimant constituted earnings under Regulation 35(2).
[7] The Applicant then applied under Section 120 of the Employment Insurance Act to have the Umpire reconsider his decision. The Umpire by a decision dated September 3, 2002 denied the request for reconsideration.
[8] The Applicant then applied to the Chief Umpire for a second reconsideration, which, in turn, was denied on October 11, 2002.
[9] In the present application, the Applicant chose to seek judicial review, not of the initial decision of the Umpire which decided against him on the merits, but rather the decision of the Umpire declining to find in the Applicant's favour upon a reconsideration under Section 120.
[10] Section 120 of the Employment Insurance Act allows the Commission, Board, or Umpire to rescind or amend its decision if new facts are presented or if a mistake was made as to some material fact.
[11] We can find no error in the Umpire's decision in which he concluded that he had not made any mistake and that the Applicant had presented no new facts within the meaning of Section 120 as interpreted by the cases.
[12] The decision of the Board of Referees held that the Applicant had failed to show that the Manitoba Teachers' Society Long Term Disability Plan could be said to be completely portable or that in 1995 it could be said that the plan had been voluntarily purchased by the Applicant.
[13] We are unable to conclude that the decision of the Board of Referees, which decision was affirmed by the Umpire, was in error.
[14] The application for judicial review will be dismissed without costs.
"J. Edgar Sexton"
J.A.
Winnipeg, Manitoba
November 24, 2003
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-566-02
STYLE OF CAUSE: Richard R. Tramer v. Human Resources Development Canada
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: November 24, 2003
REASONS FOR JUDGMENT OF THE COURT: LINDEN J.A., SEXTON J.A.,
MALONE J.A.
DELIVERED FROM THE BENCH BY: SEXTON J.A.
APPEARANCES:
|
Richard Tramer |
ON HIS OWN BEHALF |
|
R. Scott Dougall Department of Justice Edmonton, AB |
FOR THE RESPONDENT |
SOLICITORS OF RECORD:
|
Richard Tramer |
ON HIS OWN BEHALF
|
|
Morris Rosenberg Deputy Attorney General of Canada |
FOR THE RESPONDENT |