Date: 20001107
Docket: T-785-99
BETWEEN:
FRANK PIRKER
Applicant
- and -
HER MAJESTY THE QUEEN
Respondent
REASONS FOR ORDER
SIMPSON J.
[1] This is an application by Frank Pirker (the "Applicant") for judicial review, pursuant to s. 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, of a decision made by Human Resources Development Canada ("HRDC") and found in a letter dated April 15, 1999 (the "Decision"). In the Decision, the HRDC informed the Applicant that he was required to repay the sum of $21,549 to HRDC. That sum represented employment insurance benefits which had been paid to the Applicant but which were later determined to be overpayments. HRDC was responsible for their collection.
Background
[2] The Applicant filed the following four claims based on insurable employment in the periods shown. For ease of reference, I have assigned a number to each period of employment.
CLAIM #704 dated December 14, 1990
Period (1) July 9 to September 30, 1990
Period (2) October 1 to November 16, 1990
Period (3) November 19 to December 14, 1990
The Applicant was paid $8,160 in benefits for this claim.
CLAIM #754 dated December 1, 1991
Period (4) July 1 to November 30, 1991
The Applicant was paid $6,675 in benefits for this claim.
CLAIM #806 dated December 1, 1992
Period (5) July 1 to November 30, 1992
The Applicant was paid $8,114.00 in benefits for this claim.
CLAIM #863 dated December 31, 1992
Period (6) September 1 to December 31, 1993
The Applicant was not paid any benefits for this claim.
[3] The Applicant was employed as a truck driver by Fransig Holdings Ltd. The Applicant owned 10 percent of the shares of that company and his father owned the other 90 percent. For this reason, among others, the Unemployment Insurance Commission (the "Commission") asked Revenue Canada Taxation ("RCT") for an opinion about whether the Applicant's employment was insurable. In reply, RCT gave two rulings. Firstly, it found that period number 6 was not insurable employment and, in a second ruling, it stated that most of the employment in periods numbered 1 to 5 was also not insurable.
[4] The Applicant appealed the second decision, and the question of insurability was ultimately resolved in an appeal to the Tax Court of Canada. The Tax Court judge concluded that periods 3, 4 and 5 were not insurable.
Issues
[5] This matter raises the following questions:
| 1. Is the Decision (ie. HRDC's letter of April 15, 1999) actually a decision or is it merely a restatement of a decision the Respondent says was made by the Commission in December 1994, which was suspended while the Applicant pursued his appeal about the insurability of his earnings to the Tax Court? |
| 2. If a decision was made by the Commission in December 1994, was it communicated to the Applicant in a notice of overpayment which he received in January 1995? |
The answers to these questions will determine whether the limitation periods in sections 43(1) and (6) of the Unemployment Insurance Act, R.S.C. 1985, c. U-1 (the "Act") apply to the facts of this case.
[6] Those sections provide as follows:
| 43 (1) Notwithstanding section 86 but subject to subsection (6), the Commission may at any time within thirty-six months after benefit has been paid or would have been payable reconsider any claim made in respect thereof and if the Commission decides that a person has received money by way of benefit thereunder for which he was not qualified or to which he was not entitled or has not received money to which he was qualified and to which he was entitled, the Commission shall calculate the amount that was so received or payable, as the case may be, and notify the claimant of the decision. |
| ... |
| (6) Where, in the opinion of the Commission, a false or misleading statement or representation has been made in connection with a claim, the Commission has seventy-two months within which to reconsider the claim under subsection (1). |
[7] If, as the Applicant alleges, he received no notice of any overpayment until he received the Decision in April 1999, then, regardless of whether section 43(1) or 43(6) applies, HRDC can no longer require the Applicant to repay any overpayment and HRDC had no jurisdiction to issue the Decision because it was out of time.
[8] On the other hand, if a notice dealing with overpayment was received by the Applicant in January 1995 as the Respondent asserts, then the letter presently described as the Decision would properly be characterized not as a "decision", but rather as a letter implementing the decision which was made in 1994 and sent to the Applicant in a notice of overpayment in January 1995. If notice of overpayment was received in January 1995, then the three and six-year limitation periods in section 43(1) and (6), respectively, were met, and the Applicant is liable to repay any overpayment found to be due.
[9] The quantum of the overpayment is not at issue in this judicial review. That matter is properly addressed through an appeal of a notice of overpayment to the Board of Referees. Counsel for the Respondent has indicated before me that, in the circumstances of this case, which include the fact that the Applicant has always intended to appeal quantum, and the fact that it did not make sense to do so until the Tax Court dealt with his appeal on the question of insurability, it would not oppose an application by the Applicant to file a late appeal to the Board of Referees on the issue of the quantum of the overpayment.
[10] In broad terms, the Respondent's evidence was that, after RCT ruled that most of the Applicant's employment was uninsurable, the Commission decided to collect the overpayment and an insurance officer sent the information about the Applicant's claims to the Respondent's Computer Pay Centre in Winnipeg so that computer overpayment notices (the "Notices") could be sent to the Applicant. Unfortunately, the Respondent has not been able to produce copies of the Notices because, in 1995, file copies of notices which were generated by computer in Winnipeg were not kept in the Respondent's local office in Edmonton. However, the Respondent did produce a letter from the Applicant and a memorandum of a telephone conversation with the Applicant which the Respondent says show that the Applicant received the Notices.
[11] The Respondent relied on the following evidence to show that three Notices were sent to and received by the Applicant. The evidence was before the Court in an affidavit sworn by Marilyn Johnston on June 11, 1999 (the "Affidavit"). At that time, she was a Service Delivery Operational Consultant for HRDC. Her affidavit disclosed that:
| On September 15, 1994, the Commission received a ruling from RCT to the effect that the Applicant's periods of employment, which I have numbered as 3, 4 and 5, were not insurable (Affidavit Exhibit "N"). |
| After it received the ruling, the Commission decided to void the claims and collect the related overpayments. Decisions to void claims 704, 754 and 806 were made on December 16, 1994, and are recorded in writing on the Respondent's file (Affidavit Exhibit "O"). These decisions contained the codes which were to be used to give directions to the Respondent's regional computer centre (the "RCC") in Winnipeg to issue notices of overpayment for each claim. |
| Directions to the RCC to process three Notices for claims 704, 764 and 806 were given in a memo dated December 16, 1994 (Affidavit Exhibit "P"). |
| By memoranda dated December 21, 1994 (Affidavit, at page 16 in Exhibit "B", page 24 in Exhibit "E", and page 33 in Exhibit "H") the RCC advised that it had "established overpayments" in the amounts of $8,160, $6,675 and $8,114 for claims 704, 754 and 806 respectively. |
[12] There was no evidence before me about what it meant to "establish" an overpayment in a particular amount. It was not clear whether this meant that the information had been put into the computer or whether it meant that Notices about the voided claims and related overpayments had been sent to the Applicant. In the end, although it was clear that the RCC received the request to issue the Notices and acted on it in some fashion, it was not clear from the Respondent's internal correspondence that the Notices were sent to or received by the Applicant.
[13] However, there was evidence about what the Notices would have contained. In her cross-examination on the Affidavit, at page 35 of the transcript, Ms. Johnston said that the Notices "...would say that something to the effect that due to an investigation this claim has been voided and therefore the overpayment amount is whatever".
[14] Although the Respondent's internal correspondence did not show that the Notices were ever sent or received, the Respondent provided other evidence on this issue. In particular, the Respondent relied on a handwritten letter from the Applicant dated January 13, 1995, (the "Letter"). It said:
| To whom it may concern: #482307 |
| I Frank F. Pirker, SIN# 624-216-818 wish to appeal the determination by the Dept. of Revenue Canada Taxation on my Insurability and My Overpayment based on that determination dated 04,01,1995 |
| (Sgd.) "F.F. Pirker" |
| SIN# 624-216-818 |
| dated - Jan 13/95 |
[15] The Respondent said that the Letter made it clear that the Applicant had received the Notices which told him the amount of the overpayment and that it was based on a RCT ruling. The Applicant, on the other hand, suggested that the Letter was not clear and that it could have described the ruling from RCT rather than the Notices. However, this suggestion was not persuasive because other evidence showed that the Applicant did not receive the ruling from RCT until February 3, 1995 (Affidavit Exhibit "S"). Accordingly, the Letter must have been written on receipt of the Notices.
[16] Applicant's counsel also said that the Letter was not clear evidence that the Applicant received the Notices because the Applicant said in the Letter that its enclosures were dated January 4, 1995. The Applicant also said that, although the Respondent's file indicated that decisions were made by the Commission on December 16, 1994 (Affidavit Exhibit "O") or on December 20, 1994 (Affidavit Exhibit "H"), there was no indication of any decision dated January 4, 1995. In view of the confused state of the Respondent's file, the Applicant said that it would be unsafe to conclude that the Notices were dated January 4, 1995.
[17] I have not accepted this submission because the Applicant has made no distinction between the Commission's decisions and the Notices. The Respondent's file clearly demonstrates that the Commission's decision was made on December 16, 1994. In my view, the subsequent reference to December 20 in the Affidavit at Exhibit "H" was made in error and reflected the date on which the RCC received the December 16th decision. Then, the RCC sent out the Notices which were dated January 4, 1995, and received by the Applicant on January 13, 1995, as he indicated in the Letter.
[18] The Respondent's files also contain a memorandum to file dated January 16, 1995 (the "Memorandum"). It reads:
| Claimant called, states he rec'd his first notice of O/P on Jan. 13/95. He did not receive our letters dated Apr. 20/941. |
| Advised claimant he should be appealling [sic] the decision of non-insurability to Revenue Canada. He should obtain a CPT101 form to do this. |
| Claimant will withdraw his appeal with our department and appeal to RCT. He will send us a letter. |
[19] In my view, the Memorandum confirms that, on January 13, 1995, the Applicant received the Notices, knew the amounts claimed as overpayments, and indicated an intention to appeal the quantum of his overpayments to the Board of Referees. However, he was advised to appeal insurability first and defer his appeal on quantum. The Applicant accepted this advice.
[20] However, at the hearing, the Applicant's counsel said "My Lady, it is our submission that the Applicant was never notified that he owed any money. He has indicated that in his affidavit" (transcript of October 17, 2000, p. 10). Counsel was referring to the Applicant's affidavit which was sworn on April 26, 1999, (the "Applicant's Affidavit"). In view of this submission, I asked Applicant's counsel to indicate where, in the Applicant's Affidavit he denied receiving the notices. In response, Applicant's counsel referred to paragraphs 5 and 16 of the Applicant's Affidavit.
[21] Paragraph 5 of the Applicant's Affidavit says:
| In 1995 I was informed by Employment and Immigration Canada that my employment with Fransig Holdings Ltd. was not insurable for certain specific periods of time and that if I wished to appeal these decisions I could do so by completing a Form CPT 101 or sending a letter to the Chief of Appeals at the Revenue Canada District Taxation Office in my area. Attached hereto and marked as Exhibit "A" to this my Affidavit is the correspondence from Employment and Immigration Canada informing me of this decision. |
and paragraph 16 says:
| I have no idea how Human Resources Development Canada determined that I owed any monies for the over-payment of Employment Insurance benefits and I am frustrated in the failure of Human Resources Development Canada to provide any sort of explanation for these decisions it is making. |
[22] In my view, neither of these paragraphs constitute a clear statement that the Applicant did not receive the Notices. The Applicant's failure to receive the Notices is at the core of this application for judicial review. He is asking this Court to grant him a discretionary remedy on the basis that he did not receive the Notices. Yet, the Applicant's Affidavit does not squarely address the issue. Further, the Applicant did not file a second affidavit in reply to the Affidavit from the Respondent. In my view, his failure to do so is fatal to this application. Once the Respondent showed that, on a balance of probabilities, the Notices were sent and received, it was incumbent on the Applicant to explain his letter of January 13, 1995, to explain his telephone remarks of January 16, 1995, and to clearly state that he had not received the Notices.
[23] Instead, the Applicant chose to rest his case on the fact that the Respondent could not produce the Notices. Applicant's counsel relied in particular on the decisions of the Federal Court of Appeal in Laforest v. Canada (Procureur Général) (1998), 97 N.R. 95 and in Brière v. Canada (Employment and Immigration Commission) (1988), 57 D.L.R. (4th) 402. He submitted, and I accept, that these cases say that the provisions in the Act concerning the collection of overpayments are to be strictly construed and that, before the Respondent can collect the overpayments, it must take all the following steps within three years or six years of paying a claimed benefit. It must:
| reconsider the claim; |
make a decision to void the claim;
| calculate the amount due as an overpayment; and |
| send a notice to the claimant which communicates the decision and the amount due. |
[24] However, I am satisfied, on all the evidence, that all the required steps were taken within the prescribed time. There was never any issue that, if the Notices were received on January 13, 1995, they met the three and six-year limitation periods in the Act.
Conclusion
[25] For all these reasons, an order will be made dismissing this application for judicial review.
(Sgd.) "Sandra J. Simpson"
Judge
Vancouver, B.C.
November 7, 2000
NAMES OF COUNSEL AND SOLICITORS OF RECORD
STYLE OF CAUSE: FRANK PIRKER
- and -
HER MAJESTY THE QUEEN
COURT NO.: T-785-99
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: October 17, 2000
REASONS FOR ORDER: SIMPSON J.
DATED: November 7, 2000
APPEARANCES:
Mr. Roger Stephens for Applicant
Ms. Rhonda Nahorniak for Respondent
SOLICITORS OF RECORD:
Simons & Stephens for Applicant
Edmonton, Alberta
Morris Rosenberg for Respondent
Deputy Attorney General of Canada
Ottawa, Ontario
__________________
1 These letters related to Revenue Canada Taxation's ruling on insurability for period 6.