A-676-96
MONTRÉAL, QUEBEC, THE 28TH DAY OF MAY, 1997
CORAM: THE HONOURABLE MR. JUSTICE HUGESSEN
THE HONOURABLE MR. JUSTICE DENAULT
THE HONOURABLE MR. JUSTICE MacGUIGAN
BETWEEN: THE ATTORNEY GENERAL OF CANADA,
Applicant
AND:
JEAN-ROCK GAGNON,
Respondent
J U D G M E N T
The application is allowed, the umpire"s decision is set aside, and the matter is referred back to an umpire to be appointed by the chief umpire for redetermination on the presumption that the claimant"s appeal should be dismissed.
| James K. Hugessen |
| J.A. |
Certified true translation
Christiane Delon
A-676-96
CORAM: HUGESSEN
DENAULT
MacGUIGAN, JJ.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA,
Applicant
AND:
JEAN-ROCK GAGNON,
Respondent
Hearing held in Montréal,
Wednesday, May 28, 1997
Judgment rendered in Montréal,
Wednesday, May 28, 1997
REASONS FOR JUDGMENT OF THE COURT BY: HUGESSEN, J.A.
A-676-96
CORAM: HUGESSEN
DENAULT
MacGUIGAN, JJ.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA,
Applicant
AND:
JEAN-ROCK GAGNON,
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Pronounced at the hearing in Montreal,
Wednesday, May 28, 1997)
HUGESSEN, J.A.
This is an application by the Commission for judicial review of a decision of the umpire.
The claimant appealed to the board of referees from a decision of the Commission, which had ruled retroactively that he was not entitled to benefit. The board dismissed the appeal. However, it added the following paragraph at the end of its decision:
| [Translation] The claimant could not claim financial assistance from welfare retroactively since he had worked only four weeks as an employee since January 1993, and had to rely on legal aid to defend his cause, and the board strongly recommends that the Commission apply unemployment insurance regulation 60, which allows it to write off the debt. |
The claimant appealed to the umpire. Meanwhile, the Commission apparently failed to follow up on the board"s recommendation. The umpire allowed the appeal on two grounds, essentially.
First, the umpire dealt with a submission by the claimant based on section 43.1 He summarized it in the following way:
| [Translation] The claimant"s argument is that the Commission must, within the time prescribed by the said section, not only notify the claimant of the overpayment but also communicate to him the amount of the overpayment and notify him accordingly. It appears that the Commission"s opinion, which is found in exhibits 4.1 and 4.2 of the appeal record, does not include the calculation referred to in section 43; it is only in the Commission"s observations directed to the board of referees, filed a few months subsequent to the reconsideration of claim, that the amount claimed in exhibit 6.2 is found. The relevant issue is whether the Commission met the requirement of "notifying" the claimant of its decision by electing to insert this notice in its observations directed to the Commission [sic]? |
The umpire answered this question in the negative. Unfortunately for the claimant, his decision cannot be reconciled with the very recent decision of this Court in the Rajotte case,2 in which we flatly dismissed the thesis adopted by the umpire. In Rajotte, Décary J.A. stated, on behalf of the Court:
| It matters little, in these circumstances, whether the different steps prescribed in subsection 43(1) were taken on the same day or whether the claimant was informed of the various decisions taken in his regard as they were taken or at the very end of the process, or whether these decisions were recorded in a single document, since in any event the only time that matters is the time when the process is completed, that is, the time when the claimant is notified by the Commission of the amount of the overpayment. |
We would add that, on the facts of the case at bar, the claimant was clearly notified of the amount claimed prior to the hearing before the board of referees, and he made no submission to the contrary.
Second, the umpire dealt with the issue of the write-off in the following words:
| [Translation] |
| It seems to me, in the exercise of the authority conferred on an umpire, that the impugned decision as a whole should be subject to a right of review. In this appeal, the board of referees recommended that, since the claimant had received financial assistance from the welfare services, he was quite probably not someone who was able to repay the Commission. The file was returned to the Commission and the Commission, for reasons that were not presented to me, simply upheld its previous decision, without providing any reasons. Is there any indication that this second decision was reached in a proper way? It seems to me that if the Commission had decided to uphold its own decision in light of the facts, it could now justify it, which it has not done. |
| I am therefore intervening to write off the amount of the overpayment. |
It is clear to us that the umpire erred in law. The only decision he had before him, and which he was empowered to confirm, rescind or vary, was the decision rendered by the board of referees, which we summarized above. In regard to the "second decision" referred to by the umpire, if such there were, it was necessarily subsequent to that of the board and the umpire clearly had no authority to review it.
In these circumstances, it is unnecessary for us to take a position on the issue, however vigorously argued and interesting it may be, as to what the appropriate method is to challenge a decision by which the Commission refuses to implement a recommendation that it exercise its authority under section 60 of the Regulations.
Finally, although the respondent"s case is an attractive one, we see no "special reasons" therein within the meaning of Rule 1618.
The application shall be allowed, the umpire"s decision shall be set aside, and the matter shall be referred back to an umpire to be appointed by the chief umpire for redetermination on the presumption that the claimant"s appeal should be dismissed.
| James K. Hugessen |
| J.A. |
Certified true translation
Christiane Delon
FEDERAL COURT OF APPEAL
A-676-96
BETWEEN:
THE ATTORNEY GENERAL OF CANADA,
Applicant
AND:
JEAN-ROCK GAGNON,
Respondent
REASONS FOR JUDGMENT OF THE COURT
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| FILE NO. A-676-96 |
| STYLE: ATTORNEY GENERAL OF CANADA |
Applicant
| AND: |
| JEAN-ROCK GAGNON |
Respondent
| PLACE OF HEARING: Montréal, Quebec |
| DATE OF HEARING: May 28, 1997 |
REASONS FOR JUDGMENT OF THE COURT (HUGESSEN, DENAULT AND MacGUIGAN, JJ.A.)
READ FROM THE BENCH BY: Hugessen, J.A.
| Dated: May 28, 1997 |
APPEARANCES:
| Carole Bureau for the applicant |
William de Merchant
| Claudine Barabé for the respondent |
SOLICITORS OF RECORD:
George Thomson
Deputy Attorney General
of Canada
| Ottawa, Ontario for the applicant |
Campeau, Ouellet, Nadon,
Barabé, Cyr, Rainville,
de Merchant, Bernstein
& Cousineau
| Montréal, Quebec for the respondent |
1 Section 43 of the Unemployment Insurance Act reads 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 for 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 its decision.
(2) Any decision made by the Commission pursuant to subsection (1) is subject to appeal under section 79.
(3) If the Commission decides that a person has received money by way of benefit for any period in respect of which he was not qualified or money by way of benefit to which he was not entitled, the amount therefor as calculated under subsection (1) is the amount repayable under section 35.
(4) If the Commission decides that a person was qualified and entitled to receive money by way of benefit, and the money was not paid, the amount thereof as calculated under subsection (1) is the amount payable to the claimant.
(5) The day that the Commission notifies the person of the amount calculated under subsection (1) to be repayable under section 35 shall, for the purposes of subsection 35(4), be the date on which the liability arises thereunder.
(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).
2 Michel Rajotte v. Canada Employment and Immigration Commission et al., (April 3, 1997), A-426-96 (unreported).