BETWEEN:
THE ATTORNEY GENERAL OF CANADA
and
Respondent
Heard at Vancouver, British Columbia, on June 27, 2006.
Judgment delivered from the Bench at Vancouver, British Columbia, on June 27, 2006.
REASONS FOR JUDGMENT OF THE COURT BY: DÉCARY J.A.
Docket: A-559-05
Citation: 2006 FCA 245
CORAM: DÉCARY J.A.
LINDENJ.A.
SHARLOW J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
PAUL PIOVESAN
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Vancouver, British Columbia, on June 27, 2006)
[1] The issue in this application for judicial review of an Umpire's decision (CUB 66231A) is whether the issuance of a warning instead of the imposition of a monetary penalty as a result of a false representation by a claimant brings into play the application of section 7.1 of the Employment Insurance Act. That section provides for an increase in the number of hours required to qualify for benefits when a person accumulates one or more violations.
[2] The respondent had not appeared before the Umpire and as he did not file a record in this Court, he would have been disentitled from addressing the Court had he appeared at the hearing. He sought an adjournment of this hearing. His request was denied.
[3] In the case at bar, a warning was issued, instead of a monetary penalty, and was followed by a notice of violation. The claimant appealed the Commission's decision to a Board of Referee. His appeal was dismissed. He then appealed to the Umpire, who set aside the decision of the Commission on the basis that section 7.1 comes into play only where a monetary penalty is imposed.
[4] The Umpire, in our view, misconstrued the Act. Section 41.1 empowers the Commission to issue a warning instead of setting the amount of a penalty and subparagraph 7.1(4)(a) states that a person accumulates a violation if the Commission issues a notice of violation to a person where a penalty is imposed under, among others, section 41.1. Paragraph 7.1(4)(a) is perhaps poorly drafted but interpreted in context it can only mean that a warning is a penalty for its purposes, albeit not a monetary penalty (see Canada (A.G.) v. Geoffroy, 2001 FCA 105; Canada (A.G.) v. Gauley, 2002 FCA 219 at paragraph 11 and CUB 58488).
[5] The application for judicial review will be allowed, the decision of the Umpire will be set aside and the matter will be referred back to the Chief Umpire or his delegate for a redetermination
on the basis that the appeal from the Board of Referees' decision must be dismissed. No costs were sought.
"Robert Décary"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-559-05
JUDICIAL REVIEW OF R. S. STEVENSON, OFFICE OF THE UMPIRE, DATED
SEPTEMBER 21, 2005, DECISION NO. 62231A
STYLE OF CAUSE: AGC v. PAUL PIOVESAN
PLACE OF HEARING: VANCOUVER, BC
DATE OF HEARING: JUNE 27, 2006
REASONS FOR JUDGMENT OF THE COURT BY: DÉCARY, J.A.
LINDEN, J.A.
SHARLOW, J.A.
DELIVERED FROM THE BENCH BY: DÉCARY, J.A.
APPEARANCES:
| FOR THE APPLICANT
|
|
| FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
|
Deputy Attorney General of Canada Vancouver, BC
|
FOR THE APPLICANT
|
|
Coquitlam, BC |
THE RESPONDENT
|