A-252-05
BETWEEN:
and
Hearing held at Montréal, Quebec, on March 15, 2006.
Judgment delivered at Montréal, Quebec, on March 15, 2006.
Date: 20060315
Dockets: A-251-05
A-252-05
Citation: 2006 FCA 111
CORAM: DESJARDINS J.A.
LÉTOURNEAU J.A.
NOËL J.A.
BETWEEN:
DANIEL ROUSSEAU
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the bench at Montréal, Quebec, on March 15, 2006)
[1] In dockets A-251-05 and A-252-05, the applicant is challenging two decisions by the Umpire in which he set aside decisions by the Board of Referees to reduce the quantum of penalties and re-establish the amounts set by the Employment Insurance Commission (the Commission).
[2] It appears from docket A-251-05 that the Commission reduced the penalty of $9,910 to an amount of $1,800. In docket A-252-05, the Commission reduced the penalty from the original $1,239 to $206.
[3] In determining the amount of the penalties in the two cases, the Commission took into account, among other aggravating or mitigating factors, the fact that the applicant had made several false statements; that he had done so repeatedly, justifying a second notice of serious violation of the Employment Insurance Act, S.C. 1996, c. 23 (the Act); that the applicant had a substance abuse problem and, finally, that the applicant had made the false statements in order to pay debts arising from his substance abuse problem.
[4] The applicant raises two grounds to intervene in the Umpire’s decision. The grounds are reasonable in both cases.
[5] First, he alleges that in determining the amount of the penalties, the Commission failed to take into consideration the fact that he had not used drugs since July 1997.
[6] This information is contained in the statutory declaration that the applicant made to the Commission. Therefore, it was in the file that the Commission assessed for the purpose of determining the amount of the penalties. Although the Commission did not expressly refer to this in the non-exhaustive list of factors that it took into consideration, in the absence of additional evidence, there is no basis on which to claim that this factor was not taken into consideration.
[7] Moreover, in docket A-251-05, the Board of Referees expressly recognized [translation] “that the Commission exercised its discretionary power having considered the documents in the docket and that it took into account mitigating factors”. The same observation and findings were made with respect to docket A-252-05.
[8] As his second ground, the applicant states that the Board of Referees was entitled to intervene and review the decision of the Commission on the basis of the facts below, which arose after the amount of the penalties was determined.
[9] The applicant initially made an assignment of his property, which resulted in a stay of the proceedings to recover the overpayment.
[10] He then changed his mind and cancelled his statement of assignment of property, which resulted in the cancellation of the settlements based on that assignment. The applicant decided to repay his debts. He argues that this constitutes a relevant factor justifying the intervention of the Board of Referees in reducing the penalties even further than the Commission had done.
[11] With respect, and without disparaging the applicant’s commendable decision and efforts to take responsibility for his debts, we do not believe that this constitutes a relevant factor justifying interference after the fact with the penalties imposed. If financial hardship and the claimant’s inability to pay are factors to be taken into consideration in determining the amount of a penalty (see for example Canada (Attorney General) v. Deen (2003), 312 N.R. 299, at page 304; Canada (Attorney General) v. Schembri (2003), 313 N.R. 336, at page 340), the same cannot be said for his willingness to pay.
[12] In any event, in both cases, the Board of Referees, after acknowledging the applicant’s efforts to repay his debts instead of declaring bankruptcy, intervened, stating that [translation] “a principle of natural justice must apply in this case.” The reference to a principle of natural justice was vague with respect to its identification, content and scope.
[13] In our opinion, the Umpire was correct in finding that the Board of Referees intervened arbitrarily and without justification when it substituted its own opinion for that of the Commission.
[14] We are of the opinion that by substantially reducing the amount of the penalties as it did, the Commission exercised its discretion in a judicial manner. It demonstrated understanding and compassion without going so far as to undermine the specific and general deterrent effect intended by the legislator: see Deen and Schembri, supra, with respect to deterrence.
[15] For these reasons, the applications for judicial review are dismissed in dockets A-251-05 and A‑252‑05, but with a single set of costs. However, the respondent shall be entitled to his disbursements in each of the cases.
[16] A copy of these reasons will be entered in docket A-252-05 in support of the judgment rendered therein.
Certified true translation
Francie Gow
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKETS: A-251-05 and A-252-05
STYLE OF CAUSE: Daniel Rousseau v. Attorney General of
Canada
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: March 15, 2006
REASONS FOR JUDGMENT BY: DESJARDINS J.A.
LÉTOURNEAU J.A.
NOËL J.A.
DELIVERED FROM THE BENCH BY: LÉTOURNEAU J.A.
APPEARANCES:
|
FOR THE APPLICANT
|
|
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
|
Montréal, Quebec
|
FOR THE APPLICANT
|
|
Deputy Attorney General of Canada Montréal, Quebec
|
FOR THE RESPONDENT
|
Date: 20060315
Docket: A-251-05
Montréal, Quebec, March 15, 2006
CORAM: DESJARDINS J.A.
LÉTOURNEAU J.A.
NOËL J.A.
BETWEEN:
DANIEL ROUSSEAU
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
JUDGMENT
The application for judicial review is dismissed with costs.
“Alice Desjardins”
J.A.
Certified true translation
Francie Gow
Date: 20060315
Docket: A-252-05
Montréal, Quebec, March 15, 2006
CORAM: DESJARDINS J.A.
LÉTOURNEAU J.A.
NOËL J.A.
BETWEEN:
DANIEL ROUSSEAU
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
JUDGMENT
The application for judicial review is dismissed. The respondent is entitled to his disbursements.
“Alice Desjardins”
J.A.
Certified true translation