A-815-96
MONTRÉAL,
QUEBEC, THIS 14th DAY OF MAY 1997
CORAM: THE
HONOURABLE MADAME JUSTICE DESJARDINS
THE
HONOURABLE MR. JUSTICE DÉCARY
THE
HONOURABLE DEPUTY JUSTICE CHEVALIER
BETWEEN: ATTORNEY
GENERAL OF CANADA,
Applicant,
AND:
GLADIS
H. ROMERO,
Respondent.
J
U D G M E N T
The application for judicial review is
allowed, the decision of the umpire is set aside and the matter is referred
back to the umpire to be designated by the Chief Umpire for redetermination,
with instructions to dismiss the claimant's appeal.
Alice
Desjardins
J.A.
Certified true
translation
C. Delon, LL.L.
A-815-96
CORAM: DESJARDINS
J.A.
DÉCARY
J.A.
CHEVALIER
D.J.
BETWEEN:
ATTORNEY
GENERAL OF CANADA,
Applicant,
AND:
GLADIS
H. ROMERO,
Respondent.
Hearing
held at Montréal
on
Wednesday, May 14, 1997
Judgment
delivered at Montréal
on
Wednesday, May 14, 1997
REASONS FOR
JUDGMENT OF THE COURT BY: DÉCARY J.A.
A-815-96
CORAM: THE
HONOURABLE MADAME JUSTICE DESJARDINS
THE
HONOURABLE MR. JUSTICE DÉCARY
THE
HONOURABLE DEPUTY JUSTICE CHEVALIER
BETWEEN: ATTORNEY
GENERAL OF CANADA,
Applicant,
AND:
GLADIS
H. ROMERO,
Respondent.
REASONS
FOR JUDGMENT OF THE COURT
(Delivered
from the bench at Montréal
on
Wednesday, May 14, 1997)
DÉCARY
J.A.
Under
subsection 26(2) of the Unemployment Insurance act, a claimant may
continue to receive benefit if, before the expiry of his or her benefit period,
he or she begins attendance at a training course to which he or she has been
referred by the Commission.
In
the instant case, the respondent's benefit period ended on November 30, 1991,
but because of a programming error in the Commission's computers, it referred
her to a course that did not begin until December 17, 1991, after the period
had expired. The respondent therefore continued to receive benefit after
November 30, 1991.
The
Commission realized its error sometime in June 1992 and demanded repayment from
the respondent of the benefits that had been paid to her since December 1,
1991.
The
board of referees held that the claimant had collected benefits to which she
was not entitled and that she had to return them, but it recommended that the
Commission exercise its discretion under section 60 of the Unemployment
Insurance Regulations and write off the overpayment in view of the hardship
that repayment would cause the claimant.
When
the Commission refused to write off the overpayment, the respondent pursued the
appeal she had filed before the umpire. The umpire allowed the appeal,
essentially for the following reasons:
The Commission would be abusing its discretionary power
if it told a claimant he was eligible for a training course and allowed him to
take the course, and then, after realizing its error, required him to repay the
benefits received. The principles of administrative law have evolved
sufficiently to allow the courts, in such cases, to assess the harm done to the
claimant in relation to the public interest. In this case, nothing is gained
and the public interest is not served by allowing the Commission to go back on
a position it had previously taken and require the claimant to suffer the
consequences of erroneous information he has received and on which he has, in
all honesty, relied.
The
umpire made commendable efforts to assist the claimant. However, the question
he, and before him the board of referees, had to decide was this: was the
claimant entitled under the Unemployment Insurance Act to receive the
benefits she received after December 1, 1991? Clearly, the answer is no, as we
have held on numerous occasions.
Neither
the board of referees nor the umpire, nor this Court in the exercise of its
power of judicial review of the decisions of umpires, has the requisite
authority to transform the issue before it into an issue relating to the
Commission's liability for what has been called an abuse of its discretionary
power and to assessment of the damages that a claimant who is compelled to
repay benefits received as a result of an error on the part of the Commission
may have suffered; that issue must be debated in another forum. This Court had
occasion to restate that principle only a few months ago, in Attorney
General v. Tjong (A-672-95, October 3, 1996, unreported), a case that was
remarkably similar to this one.[1]
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 an umpire to be
designated by the Chief Umpire for redetermination, with instructions to
dismiss the claimant's appeal.
Robert Décary
J.A.
Certified
true translation
C. Delon,
LL.L.
Federal
Court of Canada
Court
file No. A-815-96
between
ATTORNEY
GENERAL OF CANADA,
Applicant,
—
and —
GLADIS
H. ROMERO,
Respondent.
REASONS
FOR JUDGMENT
FEDERAL
COURT OF APPEAL
NAMES
OF COUNSEL AND SOLICITORS OF RECORD
COURT
FILE NO: A-815-96
STYLE OF
CAUSE: ATTORNEY
GENERAL OF CANADA,
Applicant,
AND:
GLADIS
H. ROMERO,
Respondent.
PLACE OF
HEARING: Montréal,
Quebec
DATE OF
HEARING: May
14, 1997
REASONS
FOR JUDGMENT OF THE COURT (DESJARDINS AND DÉCARY JJ.A. AND CHEVALIER D.J.)
DELIVERED
FROM THE BENCH BY: The
Honourable Mr. Justice Décary
Dated: May
14, 1997
APPEARANCES:
Carole
Bureau for the applicant
Gilbert
Nadon for the respondent
SOLICITORS
OF RECORD:
George
Thomson for the applicant
Deputy
Attorney General
of
Canada
Campeau,
Ouellet, Nadon & Associés
Montréal,
Quebec for the respondent
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