Date: 20000209
Docket: A-401-99
CORAM: DÉCARY J.A.
SEXTON J.A.
EVANS J.A.
BETWEEN:
DEBORAH SMITH
Applicant
AND:
THE ATTORNEY GENERAL OF CANADA
Respondent
Heard at Ottawa (Ontario) on Tuesday, February 8 and
Wednesday, February 9, 2000.
Judgment delivered from the Bench on Wednesday, February 9, 2000.
REASONS FOR JUDGMENT
OF THE COURT DELIVERED BY: DÉCARY J.A.
Date: 20000209
Docket: A-401-99
CORAM: DÉCARY J.A.
SEXTON J.A.
EVANS J.A.
BETWEEN:
DEBORAH SMITH
Applicant
AND:
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Ottawa (Ontario)
on Wednesday, February 9, 2000)
DÉCARY J.A.
[1] The applicant was on vacation outside of Canada for two weeks, in early 1995, while in receipt of unemployment insurance benefits. Upon returning to Canada by air, she completed an E-311 Customs Declaration Form. In January, 1997, some of the applicant's Customs Information was accessed by the Canada Unemployment Insurance Commission ("the Commission") under a data-match program that began operating in September 1996 and with respect to which a formal agreement was signed in April, 1997 by the Commission on the one hand and the Department of National Revenue on the other hand. (On the validity of this program, see the decision we have issued this day in the companion case of Re Privacy Act, Court File No. A-121-99)
[2] As a result of the matching of information disclosed in the E-311 Form pertaining to the applicant's name, date of birth, postal code, purpose of travel and dates of departure from and return to Canada, the Commission discovered that she had received benefits while out of the country and ordered repayment of those benefits pursuant to paragraph 32(b) of the Unemployment Insurance Act, R.S.C. 1985, c. U-1 (now paragraph 37(b) of the Employment Insurance Act, S.C. 1996, c. 23). Paragraph 32(b) reads:
| 32. Except as may otherwise be prescribed, a claimant is not entitled to receive benefit for any period during which the claimant
|
32. Sauf prescription contraire, un prestataire n'est pas admissible au bénéfice des prestations pour toute période pendant laquelle il est :
|
[3] The applicant argued in her appeal to the Umpire, Mr. Justice Rothstein (then a member of the Trial Division of the Federal Court), that the provision of information by Customs to the Commission contravenes her right to be free from unreasonable search or seizure under section 8 of the Charter of Rights and Freedoms ("the Charter"). She also argued that by denying her benefits while outside of Canada, paragraph 32(b) infringes her mobility rights guaranteed by subsection 6(1) of the Charter.
[4] The Umpire, in a decision reported as CUB 44824 (and also available on the Website http://jurisprudence.ei-ae.gc.ca/jurisprudence/cubs/40000-50000/44000-44999/44824e.html) rejected both grounds of appeal. He concluded as follows with respect to the section 8 argument:
| [136] I have concluded from the nature of the information, the relationship between the appellant and other returning Canadian residents and Customs, the place and manner in which the disclosure of E-311 information was made and the seriousness of the offence under investigation, that the appellant and other Canadian residents returning to Canada by air on February 16, 1995, cannot be said to have held a reasonable expectation of privacy in relation to their E-311 information disclosed to the Commission, which outweighs the government's interest in enforcing the laws disentitling unemployment insurance claimants from receiving benefits while outside of Canada. The disclosure of E-311 information in this case is not in violation of section 8 of the Charter. |
[5] With respect to the section 6 argument, he concluded that:
| [143] [...] while paragraph 32(b) has the effect of disentitling unemployment insurance beneficiaries from receiving benefits subject to certain exceptions, the right to leave Canada is unimpaired. The appellant is free to enter, remain in, and leave Canada at her discretion. |
| [144] Subsection 6(1) of the Charter does not protect the appellant from economic disadvantage associated with her choice to leave Canada for vacation purposes. |
[6] We are in substantial agreement with the thorough reasons of the learned Umpire and it would serve no useful purpose to attempt saying in our own words what he so ably put in his. We would only add that, to the extent that paragraph 32(b) of the Unemployment Insurance Act provides a disincentive for Ms. Smith not to exercise her right to leave Canada, it is not sufficiently significant to constitute a breach of her right under subsection 6(1) of the Charter.
[7] The application for judicial review will be dismissed. There will be no order as to costs.
"Robert Décary"
J.A.