Date: 20041209
Docket: A-45-04
Citation: 2004 FCA 434
CORAM: DESJARDINS J.A.
NADON J.A.
PELLETIER J.A.
BETWEEN:
CLUB DE GOLF DE COATICOOK INC.
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
Hearing held at Montréal, Quebec, December 9, 2004.
Judgment delivered from the bench at Montréal, Quebec, December 9, 2004.
REASONS FOR JUDGMENT OF THE COURT: DESJARDINS J.A.
Date: 20041209
Docket: A-45-04
Citation: 2004 FCA 434
CORAM: DESJARDINS J.A.
NADON J.A.
PELLETIER J.A.
BETWEEN:
CLUB DE GOLF DE COATICOOK INC.
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the bench at Montréal, Quebec, December 9, 2004)
DESJARDINS J.A.
[1] This is an application for judicial review of a decision by an Umpire who overturned the decision of the Board of Referees and upheld the decision of the Commission, which imposed a penalty of $10,765 on the employer for having knowingly and wrongfully issued three employment records for the years 1998, 1999 and 2000, contrary to section 39 of the Employment Insurance Act, S.C. 1996, c. 23.
[2] To impose a penalty under section 39 of the Act, the Commission must demonstrate that:
(i) the employer provided false and misleading information;
(ii) the employer knew that this information was false and misleading.
[3] The Board of Referees found in this case:
[translation] Having regard to all the testimony that we have heard and the additional exhibits No. 35 and 36, we are of the opinion that the Club de Golf de Coaticook acted in good faith and that it did not knowingly make false representations concerning the employment records for the years 1998, 1999 and 2000.
[Emphasis added]
[4] The Umpire overturned the Board of Referees' decision on the ground that the board had not taken into account the statutory declarations of the president of the golf club and the person in charge of the club house.
[5] Even if the Umpire was justified in intervening, he could not, in the absence of the transcript of the testimony heard before the Board of Referees and solely on the basis of the statutory declarations, make the decision that the Board of Referees should have made. He had to return the matter to the Board of Referees.
[6] The application for judicial review will be allowed with costs, the decision of the Umpire will be set aside and the matter will be returned to the Chief Umpire or to a designated umpire for him to send it in turn back to the Board of Referees for rehearing.
"Alice Desjardins"
J.A.
Certified true translation
K.A. Harvey
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A-45-04
STYLE: CLUB DE GOLF DE COATICOOK INC. and ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: December 9, 2004
REASONS FOR JUDGMENT
OF THE COURT: DESJARDINS, NADON AND PELLETIER JJ.A.
DELIVERED FROM THE
BENCH BY: DESJARDINS J.A.
APPEARANCES:
Antoine Gérin FOR THE APPLICANT
Pauline Leroux FOR THE RESPONDENT
SOLICITORS OF RECORD:
Gérin, Leblanc & Associés FOR THE APPLICANT
Sherbrooke, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General
of Canada
Montréal, Quebec