Date: 19980325
Docket: A-667-96
CORAM: PRATTE, J.A.
DÉCARY, J.A.
LINDEN, J.A.
BETWEEN:
DAVID N. MORETTO
Applicant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
Heard at Vancouver, British Columbia on March 24, 1998
Judgment delivered at Vancouver, British Columbia on March 24, 1998
REASONS FOR JUDGMENT BY: LINDEN, J.A.
Date: 19980325
Docket: A-667-96
CORAM: PRATTE, J.A.
DÉCARY, J.A.
LINDEN, J.A.
BETWEEN:
DAVID N. MORETTO
Applicant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
(Delivered orally from the Bench
at Vancouver, B.C., March 24, 1998)
LINDEN, J.A.
[1] The Court is not persuaded that, on the facts of this case, the Umpire and the Board erred in holding that the applicant was "working a full working week" pursuant to Regulation 43, given the wording of the legislation and the jurisprudence of this Court. (Schwenk, CUB 5454 (1979); Veillet v. Unemployment Insurance Commission (1994), 176 N.R. 308 (Fed. C.A.))
[2] However, we are of the view that the Umpire and the Board erred in law in their determination of the appropriateness of the penalty for knowingly making a false statement contrary to Section 33. The mere fact that a legally false statement is made does not necessarily mean that it was made knowing that it was false. Neither does the repetition of a false statement make it knowingly false; there must be subjective knowledge of falsity. Where a claimant honestly believes that he was not "working" and responds to that effect in good faith to a question that is ambiguous to him, it cannot be automatically assumed that he subjectively knew it was a false statement. As I wrote in Canada (Attorney General) v. Gates (1995), 125 D.L.R. (4th) 348:
| "it is possible for honest confusion to arise as to the meaning of the word 'work'..." |
Here, both the Board and the Umpire assumed that making a legally false statement led inevitably to a finding that it was subjectively known to be so. They were wrong in law in that they did not properly consider the question of whether the claimant subjectively knew that the statements he made were false, as required by Gates (supra).
[3] The application will be allowed in part and the decision of the Umpire will be set aside in part. The matter will be sent back to the Chief Umpire (or his delegate) to be decided by him on the basis that the Board erred in law by not considering properly whether the statements made by the claimant were subjectively known to be false.
(Sgd.) "A.M. Linden"
J.A.
Vancouver, British Columbia
March 25, 1998
FEDERAL COURT OF APPEAL
Date: 19980325
Docket: A-667-96
BETWEEN:
DAVID N. MORETTO
Applicant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DATED: March 25, 1998
COURT NO.: A-667-96
STYLE OF CAUSE: DAVID N. MORETTO
v.
ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: March 24, 1998
REASONS FOR JUDGMENT OF THE COURT BY: LINDEN, J.A.
CONCURRED IN BY: PRATTE, J.A.
DÉCARY, J.A.
APPEARANCES:
Mr. David Moretto on his own behalf as Applicant
Ms. Erika Bottcher for Respondent
SOLICITORS OF RECORD:
George Thomson for Respondent
Deputy Attorney General
of Canada