Date: 19971219
Docket: A-136-97
| Between: ATTORNEY GENERAL OF CANADA, |
Applicant,
Respondent.
JUDGMENT
The application for judicial review is allowed, the Umpire"s decision is quashed and the matter is referred back to an Umpire to be designated by the Chief Umpire with instructions to allow the Commission"s appeal and rescind the decision of the Board of Referees dated April 12, 1994.
Certified true translation
Stephen Balogh
Date: 19971219
Docket: A-136-97
| Between: ATTORNEY GENERAL OF CANADA, |
Applicant,
Respondent.
Hearing held at Québec, Quebec on Wednesday, December 10, 1997
Judgment delivered at Ottawa, Ontario on Friday, December 19, 1997
REASONS FOR JUDGMENT BY: DENAULT J.A.
CONCURRED IN BY: DESJARDINS J.A.
LÉTOURNEAU J.A.
Date: 19971219
Docket: A-136-97
| Between: ATTORNEY GENERAL OF CANADA, |
Applicant,
Respondent.
REASONS FOR JUDGMENT
[1] It is my view that the application for judicial review in the case at bar should be allowed.
[2] A summary of the facts is necessary. In the construction business for which the respondent worked, the employer, with the employees" agreement, credited workers with overtime hours rather than paying for overtime work in the week in which it was performed. In the event of a work slowdown or adverse weather conditions, the hours so credited were paid to the workers in the form of wages. The statements by the employer and the respondent establish clearly and unambiguously that this strategem existed, and the employer"s accountant responsible for administering this time credit process confirmed the hours so credited and the weeks in which the corresponding wages were paid. The respondent confirmed the accuracy of this information.
[3] When the claimant claimed unemployment insurance benefits for the few weeks during which he declared that he had neither worked nor received earnings, the Commission conducted an investigation that revealed the strategem, and allocated his earnings corresponding to those credited hours of overtime to the weeks in question. Penalties were also imposed on him for failing to report those earnings.
[4] The Board of Referees allowed the claimant"s appeal and rescinded the Commission"s decision on the ground that it was based [translation ] ". . . on incorrect figures". The Board of Referees also set aside the penalties imposed by the Commission for false or misleading statements on the ground that, since the claimant appeared to have been obliged to accept this method or risk losing his employment, [translation] "the doubt [is] too obvious and the seriousness of the penalties too great for [the Board of Referees] to be able to decide on the basis of doubtful information".
[5] The Umpire to whom the Commission appealed this decision dismissed the appeal on the ground that the issue was one of credibility and that he could not substitute his opinion for that of the Board of Referees. With respect to the penalties, he decided on the ground that there had been no false statements that it was unnecessary to determine whether the claimant knew them to be false.
[6] In my view, this decision by the Umpire is wrong and must be quashed.
[7] On the issue of earnings, the Umpire erred in refusing to intervene on the basis of the credibility of the witnesses where the Board of Referees had clearly erred in assessing the evidence: far from being incorrect, as the Board of Referees stated, all the figures (overtime hours and weeks in which the earnings were paid) provided by the employer"s accountant and confirmed by the employer were admitted by the respondent. It was unreasonable to consider the issue one of credibility when the facts adduced in evidence were uncontested, corroborated, and even admitted. The Umpire should have rescinded this decision by the Board of Referees.
[8] As for the issue of penalties for false or misleading statements, it is in my view necessary once again to quash the Umpire"s decision. He stated the following on this issue:
| [TRANSLATION] It was therefore open to the Board of Referees to find that the Commission had failed to prove on a preponderance of evidence that the claimant had worked during the weeks at issue. It was also open to it to find that the claimant had not made false statements with respect to those weeks. If there were no false statements, it is unnecessary to determine whether the claimant knew them to be false. |
[9] In deciding that the Commission had failed to prove that the claimant had worked during the weeks at issue, the Umpire erred as to the issue before the Board of Referees and before himself: the Commission did not allege that the respondent had worked during the weeks in question but that he had reported no earnings whereas he had in fact been paid wages during those weeks. That was the subject of the false statements he was alleged to have made. In this respect, the statements made to the Commission by the respondent on November 12, 19931 could not have been clearer: the respondent specifically admitted to receiving earnings during the weeks in question, whereas he had originally declared in making his claim for unemployment insurance benefits in respect of those weeks that he had earned nothing. In the case at bar, the falseness of the statements was not only admitted, but resulted from a strategem acknowledged by the respondent. The Umpire should have recognized this and upheld the penalty.
[10] For these reasons, I would allow the Commission"s application for judicial review, quash the Umpire"s decision and refer the matter back to an Umpire to be designated by the Chief Umpire with instructions to allow the Commission"s appeal and rescind the decision of the Board of Referees dated April 12, 1994.
I agree.
Alice Desjardins
J.A.
I agree.
Gilles Létourneau
J.A.
Certified true translation
Stephen Balogh
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO. A-136-97
STYLE OF CAUSE: Attorney General of Canada
v. Gilles Bernard
PLACE OF HEARING: Québec, Quebec
DATE OF HEARING: Wednesday, December 10, 1997
REASONS FOR JUDGMENT BY: Denault J.A.
CONCURRED IN BY: Desjardins J.A.
Létourneau J.A.
DATED: Monday, December 22, 1997
APPEARANCES:
Francisco Couto for the applicant
Gilles Bernard the respondent himself
SOLICITORS OF RECORD:
George Thomson
Deputy Attorney General of Canada
Ottawa, Ontario for the applicant
__________________
1 Applicant"s record, at pages 28-29 and 46-47.
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