[1] Two issues are raised in this application for judicial review. The first is whether Umpire Riche in his decision of September 28, 2001 erred in finding that there were no new facts to warrant reconsideration of his earlier discussion of March 25, 2001. The second issue is, assuming there were new facts, whether there was sufficient evidence before the Umpire to allow a determination that the applicant knowingly had made false or misleading representations to the Employment Insurance Commission (Commission).

[2] Section 120 of the Employment Insurance Act (Act) permits an Umpire to rescind a decision if new facts are presented or if the decision was given without knowledge of, or was based on a mistake as to, some material fact.

[3] In his application for reconsideration, Mr. Nangle's principal complaint was that he did not consent to the tape recording of the hearing before the Board of Referees. In our analysis, this was correctly rejected by the Umpire; there being no new facts, as this same issue had already been raised at the first hearing before Umpire Riche. We would also note, that before us, the applicant acknowledged that he knew the proceedings were being taped but could give no answer as to why he did not object at that time.

[4] We are also satisfied that the Umpire did not err in upholding the Board of Referees' decision that Mr. Nangle knowingly made false or misleading statements to the Commission. Where, as here, it is apparent from the evidence that the applicant incorrectly answered the simple questions posed in the report cards, the burden of proof shifts to Mr. Nangle to explain why those incorrect answers were given. To say, as he did before us, that the Commission was slow to pay money owed to him and that it was expedient to retain two payments so as to balance accounts is no answer. As Umpire Riche noted, that is tantamount to taking the law in one's own hands.

[5] In the event that the applicant can demonstrate financial hardship and to the extent the Act permits, we would endorse the Umpire's recommendation that the penalty be reduced and an orderly system of monthly repayments be considered by the respondent.

[6] Finally, should Mr. Nangle be able to demonstrate that for any subsequent period that he was entitled to but did not claim benefits, that avenue for set-off to the extent permitted by the Act might be pursued by him as well.

[7] The application for judicial review will be dismissed. No costs were sought and none should be awarded.

"A. M. Linden"

J.A.

"Marshall Rothstein"

J.A.

"B. Malone"

J.A.

FEDERAL COURT OF CANADA

APPEAL DIVISION

Names of Counsel and Solicitors of Record

DOCKET: A-194-02

STYLE OF CAUSE: ELVIN D. NANGLE

Applicant

- and -

ATTORNEY GENERAL OF CANADA

Respondent

PLACE OF HEARING: TORONTO, ONTARIO

DATE OF HEARING: TUESDAY, MAY 6^th, 2003

REASONS FOR JUDGMENT: BY THE COURT

DELIVERED AT TORONTO, ONTARIO ON MONDAY, MAY 12, 2003.

DATED: MONDAY, MAY 12^th , 2003

APPEARANCES BY: Elvin D. Nangle

For the Applicant

Derek Edwards

For the Respondent

SOLICITORS OF RECORD: Elvin D. Nangle

470 Malaga Road

Mississauga, ON

For the Applicant

Morris Rosenberg

Deputy Attorney General of Canada

For the Respondent

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