Date: 20000509
Docket: A-241-98
CORAM: DESJARDINS J.A.
LÉTOURNEAU J.A.
McDONALD J.A.
BETWEEN:
RIK VALENTINE
Applicant
AND:
THE ATTORNEY GENERAL OF CANADA
Respondent
Heard at Vancouver, B.C., Thursday, May 4, 2000
Judgment delivered at Ottawa, Ontario, Tuesday, May 9, 2000
REASONS FOR JUDGMENT BY: LÉTOURNEAU J.A.
CONCURRED IN BY: DESJARDINS J.A.
McDONALD J.A.
Date: 20000509
Docket: A-241-98
CORAM: DESJARDINS J.A.
LÉTOURNEAU J.A.
McDONALD J.A.
BETWEEN:
RIK VALENTINE
Applicant
AND:
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
LÉTOURNEAU J.A.
I am of the view that this application for judicial review should be dismissed.
Subsection 61(3) of the Unemployment Insurance Act (Act), S.C. 1970-71-72, c. 48, authorizes the Canada Employment and Immigration Commission (Commission) to seek at any time from the Minister of National Revenue (Minister) a determination as to whether a person is or was employed in insurable employment. Such right is also given to an employer and an employee within 90 days after being notified of the decision of the Commission to seek a determination from the Minister. Subsection 61(3) reads:
61. (3) Where there arises in relation to a claim for benefit under this Act any question concerning
(a) whether a person is or was employed in insurable employment,
(b) whether a person is the employer of an insured person,
(c) the length of a person"s insurable employment, or
(d) the amount of a person"s insurable earnings from employment,
an application to the Minister for determination of the question may be made by the Commission at any time and by that person or the employer or purported employer of that person within ninety days after being notified of the decision of the Commission.
61. (3) Dans le cas d"une demande de prestations faite en vertu de la présente loi, la Commission peut demander au ministre de déterminer les points suivants:
a) le fait qu"il y a ou qu"il y a eu exercice d"un emploi assurable;
b) le fait d"être l"employeur d"un assuré;
c) la durée d"un emploi assurable;
d) la rémunération assurable retirée d"un emploi.
L"employé en cause, ou l"employeur " effectif ou présenté comme tel " de celui-ci, peut aussi, dans les quatre-vingt-dix jours suivant la date où la décision de la Commission lui a été notifiée, présenter les mêmes demandes au ministre.
Appeals from the Minister"s determination, including, by necessary implication, the Commission"s right to seek such a determination and whether the Commission exercises its right properly, are to be heard by the Tax Court of Canada pursuant to section 70 of the Act. Consequently, the Minister"s decision on the insurability of the applicant"s employment was not before us and was not an issue that the learned Umpire and the Board of referees had or would have had jurisdiction to decide: Canada (Attorney General) v. Kaur, 167 N.R. 98 (F.C.A.); The Attorney General of Canada and Vautour, F.C.A. no. A-733-95, December 9, 1996).
I can understand the difficulty that the scheme of the Act poses to a self-represented litigant: insurability issues take one route, i.e., Revenue Canada and the Tax Court of Canada, and entitlements to benefits take another, i.e., the Commission, the Board of referees and the Umpire. While I sympathize with the applicant and the frustration that he experienced, I remain bound by the law. The authority of the Commission to seek an insurability ruling and the insurability ruling itself are issues that should have been appealed before the Tax Court but that were not.
Thus, the sole questions before us are whether the Commission was entitled to reconsider the applicant"s claim for benefits and, if so, whether it did it within the period of 36 months after benefits had been paid or would have been payable.
On August 16, 1990, the applicant filed an application for unemployment insurance benefits and did receive benefits from August 26, 1990 to August 10, 1991.
On September 28, 1993, the Commission requested from the Minister a ruling as to the insurability of the applicant"s employment with one of his two employers, i.e., Argenta Workers Coop. (Argenta). On October 12, 1993, the Minister ruled that the employment with Argenta was not insurable as the applicant was not performing services under a contract of service. It is pursuant to such ruling that the Commission proceeded to reconsider the applicant"s claim for benefits.
Section 43 of the Act which reads as follows gives such power to the Commission:
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.
43. (1) Nonobstant l"article 86 mais sous réserve du paragraphe (6), la Commission peut, dans les trente-six mois qui suivent le moment où des prestations ont été payées ou sont devenues payables, examiner de nouveau toute demande au sujet de ces prestations et, si elle décide qu"une personne a reçu une somme au titre de prestations pour lesquelles elle ne remplissait pas les conditions requises ou au bénéfice desquelles elle n"était pas admissible ou n"a pas reçu la somme d"argent pour laquelle elle remplissait les conditions requises et au bénéfice de laquelle elle était admissible, la Commission calcule la somme payée ou payable, selon le cas, et notifie sa décision au prestataire.
It is not necessary in this instance to determine whether the Commission can exercise its power irrespective of whether there are any new facts since the determination of the Minister is a new material fact which justified a reconsideration of the applicant"s claim for benefits. In this respect, the applicant submitted that the Commission could not apply retroactively the Minister"s determination on insurability. The fact is that the Commission had no other choice than to apply it as of the time the applicant ceased to meet the requirements of section 6 of the Act relating to eligibility. I hasten to add that the applicant was acting in good faith when he claimed his benefits since his employment, up to the moment of the new determination, had always been ruled to be admissible. We were told that it has since then been found again to be insurable. In order to alleviate the hardship upon the applicant, the Commission renounced its right to collect most, but unfortunately not all, of the overpayments. The amount it claimed was small (around $1,000.), indeed, much smaller than the cost of this whole litigation, including the appeal, that it generated.
As for the exercise of the Commission"s power within the period of 36 months, I am satisfied that the Umpire made no error in applying the law to the facts that were submitted to him. The applicant received notice by March 4, 1994 of the Minister"s ruling, of disentitlement to benefits, and of the existence and amount of an overpayment. Hence, all the notice requirements were fulfilled: see Brien v. Commission de l"emploi et de l"immigration du Canada, 216 N.R. 111 (F.C.A.); Canada (Procureur général) v. Rouleau, 223 N.R. 146 (F.C.A.).
Before concluding these reasons, I should add that, by decision of our colleague Sexton J.A. rendered on March 11, 1999, Mr. Sean Hennessey was given intervener status in the proceedings and authorized to make oral arguments at the hearing. I would order that the style of cause be amended to include his name as to indicate his participation. As it turned out and in derogation to rule 119 of the Federal Court Rules, 1998, Mr. Hennessey, with the consent of both the respondent and the applicant, made submissions on behalf of the applicant as well as himself since the applicant could not attend the hearing. He did remarkably well in making his presentation.
For these reasons, I would amend the style of cause to include the name of Mr. Sean Hennessey as intervener and I would dismiss without cost this application for judicial review.
"Gilles Létourneau"
J.A.
"I agree,
Alice Desjardins J.A."
"I agree,
F. Joseph McDonald J.A."