Date: 20041028
Docket: A-145-04
Citation: 2004 FCA 366
CORAM: NOËL J.A.
EVANS J.A.
PELLETIER J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
JUNE SZCZECH
Respondent
Heard at Vancouver, British Columbia on October 21, 2004.
Judgment delivered at Ottawa, Ontario, on October 28, 2004.
REASONS FOR JUDGMENT BY: EVANS J.A.
CONCURRED IN BY: NOËL J.A.
PELLETIER J.A.
Date: 20041028
Docket: A-145-04
Citation: 2004 FCA 366
CORAM: NOËL J.A.
EVANS J.A.
PELLETIER J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
JUNE SZCZECH
Respondent
REASONS FOR JUDGMENT
EVANS J.A.
[1] In order to be eligible for employment insurance benefits, a person who "accumulates a violation" in the 260 weeks prior to making a claim requires additional insurable hours. June Szczech claimed benefits more than 260 weeks after committing a violation, but less than 260 weeks after the Employment Insurance Commission issued a notice of violation. The question to be decided in this case is whether the 260-week period runs from the date when the claimant committed the violation, or when a notice of violation was issued by the Commission.
[2] The issue arises in an application for judicial review by the Attorney General to set aside a decision of an Umpire, CUB 59682, dated November 7, 2003, holding that June Szczech was eligible for employment insurance benefits. The Umpire upheld a decision of a board of referees, which had allowed Ms. Szczech's appeal from the Commission's refusal of her claim for benefits.
[3] Because she had been penalized for failing to report earnings while previously in receipt of benefits, Ms. Szczech was required to have additional insurable hours to qualify for benefits if she made another claim within 260 weeks (five years). The Umpire held that this period started when she committed the violation, and not, as the Commission had ruled, when it issued a notice of violation.
[4] Counsel for the Attorney General argued that the Umpire's decision was based on a misinterpretation of subsection 7.1(4) of the Employment Insurance Act, S.C. 1996, c. 23, and was thus erroneous in law. Ms. Szczech did not appear and was not represented at the application for judicial review.
[5] The following provisions of the Act are relevant to the disposition of this application.
| Increase in required hours
7.1 (1) The number of hours that an insured person ... requires under section 7 to qualify for benefits is increased to the number provided in the following table if the insured person accumulates one or more violations in the 260 weeks before making their initial claim for benefit.
Violations
(4) An insured person accumulates a violation if in any of the following circumstances the Commission issues a notice of violation to the person:
(a) one or more penalties are imposed on the person under section 38, 39, 41.1 or 65.1, as a result of acts or omissions mentioned in section 38, 39 or 65.1;
(b) the person is found guilty of one or more offences under section 135 or 136 as a result of acts or omissions mentioned in those sections; or
(c) the person is found guilty of one or more offences under the Criminal Code as a result of acts or omissions relating to the application of this Act. |
Majoration du nombre d'heures d'emploi assurable requis
7.1 (1) Le nombre d'heures d'emploi assurable requis au titre de l'article 7 est majoré conformément au tableau qui suit, en fonction du taux régional de chômage applicable, à l'égard de l'assuré ... s'il est responsable d'une ou de plusieurs violations au cours des deux cent soixante semaines précédant sa demande initiale de prestations.
Violations
(4) Il y a violation lorsque le prestataire se voit donner un avis de violation parce que, selon le cas_:
a) il a perpétré un ou plusieurs actes délictueux prévus à l'article 38, 39 ou 65.1 pour lesquels des pénalités lui ont été infligées au titre de l'un ou l'autre de ces articles, ou de l'article 41.1;
b) il a été trouvé coupable d'une ou plusieurs infractions prévues à l'article 135 ou 136;
c) il a été trouvé coupable d'une ou plusieurs infractions au Code criminel pour tout acte ou omission ayant trait à l'application de la présente loi.
|
[6] The relevant facts can be stated briefly. On November 5, 2002, Ms. Szczech made a claim for employment insurance benefits, which the Commission denied, on the ground that she did not have sufficient insurable hours in her qualifying period, which ran from October 28, 2001 to October 26, 2002. In this period, she had acquired 801 hours, more than the 630 hours that she would normally have required in order to qualify for benefits.
[7] On November 20, 2002, the Commission advised Ms. Szczech that, because her claim had been made within 260 weeks of the issue of the notice of violation, she had insufficient insurable hours to be eligible for benefits. The Commission said that she was required to have 945 hours as a result of the notice of a serious violation issued on July 22, 1998, when a penalty was imposed on her for failing to report earnings in July and August 1997 while in receipt of benefits,.
[8] Ms. Szczech had argued that she was not required to have the additional hours prescribed by subsection 7.1(1), because she had "accumulated a violation" in August 1997, when the violation had occurred. Since this was more than 260 weeks before she made her claim for benefits on November 5, 2002, and she had acquired more than the minimum number of insurable hours normally required, her claim had been wrongly denied.
[9] A board of referees and the Umpire accepted Ms. Szczech's argument on the interpretation of section 7.1. In my opinion, they erred in so doing and the Umpire's decision must be set aside for error of law.
[10] The words in subsection 7.1(1), "accumulates a violation", are defined in subsection 7.1(4) as follows: "a person accumulates a violation if ... the Commission issues a notice of violation". While the word "if" may be somewhat ambiguous, "lorsque" in the French text makes it abundantly clear that a claimant "accumulates a violation" when a notice of violation is issued. Thus, the issue of a notice not only is a condition precedent to a claimant's being required to have additional insurable hours in order to be eligible for benefits, but also determines the date when the 260-week period commences.
[11] Accordingly, since Ms. Szczech claimed benefits less than 260 weeks after the notice of violation was issued, she was required to have 945 insurable hours. As she had only 801 hours, she was ineligible for benefits when she made her claim on November 5, 2002.
[12] To conclude that the period when additional hours must be acquired runs from the date when a violation occurred would mean that a person who managed to conceal their misrepresentations, and was not assessed a penalty and issued with a notice of violation until three years after the violation, would only have to accumulate additional insurable hours for the next two years. This would be contrary to Parliament's intention to prescribe a five-year period prior to a claim within which a claimant requires additional hours.
[13] The interpretation of section 7.1 that I have adopted is not, in my view, inconsistent with the decision in Canada (Attorney General) v. Geoffroy, 2001 FCA 105. In was held in Geoffroy that, while the increase in the number of required hours is automatic, it can only be set up against a claimant when a notice of violation has been issued. The Court was not faced with the question of whether, once a notice of violation has been issued, the 260-week period starts when the notice is issued or when the underlying violation is committed.
[14] In Canada (Attorney General) v. Limosi, 2003 FCA 215, the Court was concerned with whether it sufficed for the purpose of section 7.1 that a notice of violation had been issued, but not received by the claimant. Again, the Court was not required to consider the issue that has arisen in the present case, namely the time from which the 260-week period starts to run. Hence, dicta in Limosi (at para. 14) to the effect that "the section 7.1 penalty took effect" after the violation was committed, and not when the person was informed of the alleged violation, should not be understood as bearing on a problem that the Court did not have before it. I would only note that there was no evidence in the present case that officials of the Commission had known of Ms. Szczech's failure to report earnings, but had improperly delayed issuing a notice of violation.
[15] Finally, I should add that, in both Geoffroy (at paras. 5 and 7) and Limosi (at paras. 2 and 13), the Court commented unfavourably on the drafting of section 7.1. I agree with those comments. Indeed, any tension between the reasoning underlying the decision in the present case, and that in Geoffroy and Limosi may be attributable to apparent discrepancies in the English and French versions of the statute.
[16] For these reasons, I would allow the application for judicial review, set aside the Umpire's decision, and return the matter to the Chief Umpire or his representative, on the basis that the Commission's appeal be allowed and the board of referees' decision set aside. Costs were not requested and I would award none.
"John M. Evans"
J.A.
"I agree
Marc Noël J.A."
"I agree
J.D.Denis Pelletier J.A."
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-145-04
STYLE OF CAUSE: The Attorney General of Canada v. June Szczech
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: October 21, 2004
REASONS FOR JUDGMENT: Evans J.A.
CONCURRED IN BY:Noël and Pelletier JJ.A.
DATED:October 28, 2004
APPEARANCES:
Ward Bansley/Naomi Wright FOR THE APPELLANT
Failed to appear FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. Morris Rosenberg FOR THE APPELLANT
Deputy Attorney General for Canada
Ms. June Szczech FOR THE RESPONDENT
Surrey, British Columbia