ROSEMARY ANNE HOOD Applicant v. ATTORNEY, 2016 FCA 141

Date: 20160505 Docket: A-372-15 Citation: 2016 FCA 141 CORAM: TRUDEL J.A. WEBB J.A. SCOTT J.A. BETWEEN: ROSEMARY ANNE HOOD Applicant and ATTORNEY GENERAL OF CANADA, CANADIAN FOOD INSPECTION AGENCY, PUBLIC HEALTH AGENCY OF CANADA, PROFESSIONAL INSTITUTE OF THE PUBLIC SERVICE CANADA EMPLOYMENT AND SKILLS DEVELOPMENT CANADA-LABOUR Respondents Motion in writing disposed of without the appearance of the parties. Order delivered at Ottawa, Ontario, on May 5, 2016. REASONS FOR ORDER BY: SCOTT J.A. CONCURRED IN BY: TRUDEL J.A. WEBB J.A. Date: 20160505 Docket: A-372-15 Citation: 2016 FCA 141 CORAM: TRUDEL J.A. WEBB J.A.

SCOTT J.A. BETWEEN: ROSEMARY ANNE HOOD Applicant and ATTORNEY GENERAL OF CANADA, CANADIAN FOOD INSPECTION AGENCY, PUBLIC HEALTH AGENCY OF CANADA, PROFESSIONAL INSTITUTE OF THE PUBLIC SERVICE CANADA EMPLOYMENT AND SKILLS DEVELOPMENT CANADA-LABOUR Respondents REASONS FOR ORDER SCOTT J.A. [ 1 ] The respondent, the Attorney General of Canada (the AG), seeks the preliminary dismissal of this application for judicial review of a decision of the Appeal Division of the Social Security Tribunal of Canada (AD-SST) filed pursuant to paragraph 28(1) (

g) of the Federal Courts Act RSC, 1985, c F-7 (the Act) on the basis that said application has no reasonable chance of success, and constitutes an abuse of process. [ 2 ] The AG’s motion is made in writing pursuant to Rule 369 of the Federal Courts Rules , SOR/98-106 (the Rules). [ 3 ] The application concerns a decision of the AD-SST dated July 21, 2015 wherein Tribunal Member Mark Borer (Member

Borer), after reviewing the available grounds of appeal provided by section 58(1) of the Department of Employment and SocialDevelopment Act, S.C. 1985, c.34, (the DESDA) determined that the applicant had failed to identify any reviewable errors in the GeneralDivision of the Social and Security Tribunal of Canada (GD-SST) decision of March 9, 2015 and therefore dismissed her application forleave to appeal. [4] The GD-SST had dismissed Ms.

Hood’s application challenging the finding of the Canada Employment InsuranceCommission (CEIC) qualifying the applicant’s severance pay as “earnings” pursuant to subsection 35(2) of the Employment InsuranceRegulations SOR/96-332 (the Regulations). [5] The respondents argue that this application should be dismissed primarily because the application has no chance of success,it constitutes an abuse of process and this Court lacks jurisdiction to hear the matter. [6] In the respondents’ view, this Court does not have jurisdiction since the impugned decision is specifically excluded from thegroup of decision listed in paragraph 28(1)(

g) of the Act. The impugned decision was a refusal to grant leave to appeal made undersection 58 of the DESDA. If their assertion is correct in law, there is no need to address their other submissions, i.e. that the applicationhas no chance of success and constitutes an abuse of process. [7] The applicant, in response to the motion, filed an affidavit with attachments containing 85 pages wherein she describes indetail all the events underlying her termination and the ensuing recourses she has undertaken to seek redress. [8] The applicant disputes the motion on the basis that it violates

section 7 of the Canadian Charter of Rights and Freedoms,Part I of the Constitution Act, 1982, being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. She claims that it is this Court’s dutyto remedy her de facto termination and that the SST decisions are a downstream effect of the employer’s discriminatory treatment andconsequently it is this Court’s duty to provide redress. [9] The other arguments presented by the applicant do not address the issue of abuse of process or jurisdiction of this Court. Analysis [10] As mentioned by Mainville J.A. in Lessard-Gauvin v. Canada (Attorney General) 2013 CAF 147 , 2013 FCA 147,453 N.R. 380 at paragraph 8, the standard for preliminary dismissal is high.

It must be plain and obvious that the application has noreasonable chance of success and that it is bound to fail. [11] With these principles in mind, I am satisfied that it is plain and obvious that this Court has no jurisdiction to entertain theapplication for judicial review of a decision refusing leave pursuant to section 58(1) of the DESDA as it is expressly excluded by section28(1)(

g) of the Act: 28(1) The Federal Court of Appeal has jurisdiction tohear and determine applications for judicial reviewmade in respect of any of the following federal boards,commissions or other tribunals: 28(1) La Cour d’appel fédérale a compétence pourconnaître des demandes de contrôle judiciaire visant lesoffices fédéraux suivants : ... […](

g) the Appeal Division of the Social Security Tribunalestablished under

section 44 of the Department ofEmployment and Social Development Act, unless thedecision is made under subsection 57(2) or

section 58 ofthat Act or relates to an appeal brought under subsection53(3) of that Act or an appeal respecting a decisionrelating to further time to make a request undersubsection 52(2) of that Act,

section 81 of the CanadaPension Plan,

section 27.1 of the Old Age Security Actor

section 112 of the Employment Insurance Act;

g) la division d’appel du Tribunal de la sécurité sociale,constitué par l’article 44 de la

Loi sur le ministère del’Emploi et du Développement social, sauf dans le casd’une décision qui est rendue au

titre du paragraphe57(2) ou de l’article 58 de cette loi ou qui vise soit unappel interjeté au

titre du paragraphe 53(3) de cette loi,soit un appel concernant une décision relative au délaisupplémentaire visée au paragraphe 52(2) de cette loi, àl’article 81 du Régime de pensions du Canada, àl’article 27.1 de la

Loi sur la sécurité de la vieillesse ouà l’article 112 de la

Loi sur l’assurance-emploi; [12] The Federal Court of Appeal is a statutory court. The Act or some other federal statute must confer jurisdiction for the court tobe properly seized of a matter. It is not the case in this instance. [13] For these reasons, I propose that this motion for dismissal be granted, that the Notice of Application be struck out with costs. "A.F. Scott" J.A. “I agree. Johanne Trudel J.A.” “I agree. Wyman W. Webb J.A.” FEDERAL COURT OF APPEAL

FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD Docket: A-372-15 STYLE OF CAUSE: ROSEMARY ANNE HOOD v. ATTORNEY GENERAL OF CANADA,, CANADIAN FOOD INSPECTION AGENCY,, PUBLIC HEALTH AGENCY OF CANADA,, PROFESSIONAL INSTITUTE OF THE PUBLIC SERVICE CANADA EMPLOYMENT AND SKILLS DEVELOPMENT CANADA- LABOUR MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES REASONS FOR ORDER BY: SCOTT J.A. CONCURRED IN BY: TRUDEL J.A. WEBB J.A. DATED: May 5, 2016 WRITTEN REPRESENTATIONS BY: rOSEMARY hOOD FOR THE APPLICANT MEGAN RILEY FOR THE RESONDENT ATTORNEY GENERAL OF CANADA SOLICITORS OF RECORD : William F.

Pentney Deputy Attorney General of Canada Ottawa, Ontario For The Respondents ATTORNEY GENERAL OF CANADA,