Date: 19980625
Docket: A-525-97
CORAM: MARCEAU J.A.
LINDEN J.A.
ROBERTSON J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
- and -
COU LAI
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Vancouver, British Columbia,
on Thursday, June 25, 1998)
MARCEAU J.A.
[1] We are all of the view that this application for judicial review brought against a decision of an umpire acting pursuant to the Unemployment Insurance Act must be allowed.
[2] This Court has never hesitated to confirm the discretion of the Commission to impose a penalty under subsection 33(1) of the Act for each false or misleading statement made in respect of a claim for benefits which, pursuant to subsection 40(1), must be made for each week of unemployment. As long as the Commission exercises this discretionary power judicially, that is to say by taking into account all relevant considerations and without being influenced by any improper ones, neither the Board, the umpire nor this Court, is entitled to interfere. There was no doubt in this case that the false statements for 17 weeks had been made, each of them capable of giving rise to a separate penalty. There was no doubt, either, that the three penalties actually imposed for three series of tainted bi-weekly reports were, on the whole, well below the maximum authorized by the legislation.
[3] The umpire did not speak of any relevant consideration not taken into account by the Board or irrelevant one unduly considered. His position was that, in assessing the penalties, the Commission had obviously been guided by its long-standing practice to increase the amount with each successive imposition of penalties. That was, in his view, an abuse of discretion. The Commission should, in that respect, apply the criminal law rule which is to the effect that a more severe penalty for a second offence can be imposed only after a conviction has been entered for the first one.
[4] We have our doubts as to whether the facts here, even viewed in a criminal context, could have brought into play so easily the criminal law rule referred to. Even if all of the false statements were made by the applicant before the date on which the first penalty was imposed on him, the applicant had been contacted each time a group of false statements had been detected and his constant denials of outside earnings related to three different periods and three different employers. In any event, we are not in a criminal law context, but in an administrative law one. The sanctions provided by the Act must be viewed not so much as punishment, but as a deterrent necessary to protect the whole scheme whose proper administration rests on the truthfulness of its beneficiaries. And the Commission's practices, like the one involved here, are established not as limitations of discretion, but as a means of determining guidelines that will assure some consistency. The position adopted by the umpire, if upheld, would limit the discretion to impose penalties conferred on the Commission by section 33 of the Act. That would defeat the will of Parliament.
[5] The application should be allowed, the decision of the umpire set aside and the matter sent back for reconsideration on the basis that the appeal against the decision of the Board of Referees upholding the ruling of the Commission was devoid of any merit.
"Louis Marceau"
J.A.
Date: 19980625
Docket: A-525-97
CORAM: MARCEAU J.A.
LINDEN J.A.
ROBERTSON J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
- and -
COU LAI
Respondent
Heard at Vancouver, British Columbia, on Thursday, June 25, 1998.
Judgment rendered from the Bench on Thursday, June 25, 1998.
REASONS FOR JUDGMENT OF THE COURT BY: MARCEAU J.A.
FEDERAL COURT OF APPEAL
Date: 19980625
Docket: A-525-97
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
- and -
COU LAI
Respondent
REASONS FOR JUDGMENT
OF THE COURT