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------------------------------------------------------Legal Services
------------------------------------------------------Place du Portage, Phase IV
------------------------------------------------------4th Floor
------------------------------------------------------HULL, Quebec
------------------------------------------------------K1A OJ9
------------------------------------------------------Tel: (819) 997-2440
------------------------------------------------------Fax: (819) 997-8858
------------------------------------------------------Date: February 12, 1996
Monique Séguin, Registrar
Office of the Umpire
Place de Ville, Tower B
112 Kent Street, 9th floor
P.O. Box 8966
OTTAWA, Ontario
KIG 3J2
SUBJECT- Robert E. CHISHOLM: (CUB
28929)
Section 86
Application
Dear Ms. Séguin,
This is in reply to your memorandum dated February 1, 1996, seeking the Commission's views with respect to a letter dated December 11, 1995 sent by the claimant to your office.
The contentious issue of which the Board of Referees was seized was whether the claimant had sufficient insured weeks in his qualifying period to establish a benefit period. The Board maintained the Commission's decision and rejected the claimant's appeal. That decision was appealed to the Umpire. The Commission indicated that it would consent to the claimant's appeal being allowed and, based on that consent and after reviewing the file, the Chief Umpire allowed the appeal. It is submitted, on behalf of the Canada Employment, and Immigration Commission, that the Umpire, having rendered a decision on September 13, 1995 with respect to Mr. Chisholm's appeal, is functus officio and may therefore not change his decision.
It is further contended that this application should be dismissed, as the claimant's submission contains neither "new facts", nor a "mistake as to material fact", as required by section 86 of the Act. This section provides that:
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In the decision Attorney General of Canada v Conita Chan, unreported, FCA A-185-94, December 12, 1994, the Federal Court of Appeal stated at page 4 of its decision:
------------------A different version of facts already known to the claimant, mere -------------------------------afterthoughts or the sudden realization of the consequences of acts done in ------------------the past are not "new facts". "New facts ", for the purpose of ----------------------------------reconsideration of a decision of an umpire sought pursuant to section 86 of ------------------the Act, are facts that either happened after the decision was rendered or -------------------had happened prior to the decision but could not have been discovered by -------------------a claimant acting diligently and in both cases the facts alleged must have -------------------been decisive of the issue put to the umpire. (our underlining)
The Federal Court of Appeal further stated:
---------------"Reconsideration
of a decision by an umpire on the basis of "new facts" ---------------------having been submitted is and-should remain a rare commodity."
As per Chan, supra, "new facts" must be decisive of the issue put to the Umpire. The issue put to the Umpire was whether the claimant had sufficient weeks of insured employment to qualify. Mr. Chisholm's allegations and demands are all related to the issue of referral to training. The Commission submits that these allegations and demands are not only not decisive of the issue put to the Umpire, they are totally irrelevant. That being the case, they are not new facts within the meaning of Section 86 of the Act.
Lastly, subsection 26(8) of the Act provides that
-------------No
decision referring or refusing to refer a claimant to a course or program ----------------mentioned in subsection (1)
is subject to appeal under section 79 or 80.
The referral issue was not and could not have been before the Board of Referees or the Umpire. The Commission respectfully submits that the Umpire has no jurisdiction to
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"rescind or amend" his decision pursuant to Section 86 in order to refer a claimant to a, course, when the Commission's original decision (or the lack of same) to refer, is not subject to appeal under the terms of Sections 79 and 80.
For the foregoing reasons, the Commission contends that the claimant has not submitted any new evi- dence but rather is attempting to reopen an aspect of his case that is not properly before the Umpire. This is not the purpose of section 86 and accordingly this application for a reconsideration should be dismissed.
Yours truly,
Jonathan P. Langsner
c. c. Lionel Carrière, Directeur des Appels (Tammy L. Kirkham)
Robert E. Chisholm
C:\LANGSNER\WORK\UMPIRE\CHISHOLM.86
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