Docket:
A-453-12
Citation: 2013 FCA 255
CORAM:
STRATAS J.A.
WEBB J.A.
NEAR J.A.
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BETWEEN:
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TERRENCE CECIL ROBINSON
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Applicant
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and
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THE ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS
FOR JUDGMENT
WEBB J.A.
[1]
The applicant applied for judicial review of the decision
of the Umpire under the Employment Insurance Act,
S.C. 1996, c. 23 (the Act) dated August 23, 2012. As a preliminary matter the
Crown noted that the applicant had not identified the correct respondent. The
applicant had identified the Canada Employment Insurance Commission and the
Honourable Diane Finley, P.C., M.P., Minister of Human Resources and Skills
Development as the respondents. Under Rule 303(2) of the Federal Courts
Rules, the respondent should be the Attorney General of Canada. Accordingly,
at the outset of the hearing, the style of cause of the proceeding was amended
to change the respondent to the Attorney General of Canada.
[2]
The applicant was laid off from his job at Zebra
Studios Inc. in April 2009 and he received an amount as severance pay. Shortly
after he was laid off the applicant attended at a Canada Employment Insurance
Commission (Commission) office in Toronto to apply for employment insurance
benefits (benefits). The applicant told the person with whom he met that he had
been laid off and had received a severance payment and provided the cheque stub
for the severance payment cheque. He was told that he would have to wait to
apply for benefits since he had received a severance payment. After the
applicant’s initial visit to the Commission office he received his record of
employment. He took this to the Commission office together with a copy of his
bank statement showing the amount that he had also received as vacation pay.
[3]
Even though the applicant had informed the Commission
that he had received a severance payment and an amount for vacation pay, on a
subsequent visit to the Commission office in Toronto in June 2009 he was
informed that he would qualify immediately for benefits and a new application
(prepared on the instructions of the Commission) was antedated to April 2009.
When the applicant received cheques for the period from April 2009 to June 2009
he tried to return the cheques to the Commission as the applicant knew that he
had to wait to collect benefits because he had received a severance payment. He
was informed that he could not return the cheques.
[4]
However, the Commission then attempted to calculate how
the severance pay and vacation pay should be allocated under the Act and
the Employment Insurance Regulations. In calculating the number of weeks
that the applicant would have to wait to collect benefits, the Commission used
the wrong amount as the average of his normal weekly earnings from his
employment. The Commission based its calculation on his total pay (including his
severance amount) and determined that his average normal weekly earnings were
$1,731. The applicant’s average normal weekly earnings were $961.53.
[5]
Since the Commission had used an amount that was
greater than his average normal weekly earnings, the number of weeks to which
the severance and vacation pay were to be allocated was less than the number of
weeks than it would have been if the correct amount would have been used. In
any event, even though the waiting period was incorrect, the Commission still
determined that the applicant had received benefits for weeks for which he
should not have received benefits and determined that the applicant had a debt
to the Commission. That debt has been repaid.
[6]
The applicant discovered the error with respect to his
average normal weekly earnings and reported this error to the Commission. The
Commission again made a determination of how the severance pay and vacation pay
should have been allocated, but this time used the correct amount as the
applicant’s average normal weekly earnings. The revised determination was that
the applicant should have waited another 11 weeks before he began collecting
benefits. This final determination coincided with the initial determination
made by the applicant.
[7]
Since the applicant had started to receive benefits 11
weeks before he should have started to receive such benefits, he had received
benefits for a period during which he should not have received benefits.
However, the period for which he was entitled to receive benefits was extended
by 11 weeks. Therefore he was found to still be entitled to receive benefits
for 52 weeks, but the timing for the payment was delayed because he had
received severance pay and vacation pay. The applicant appealed this final
determination by the Commission to the Board of Referees.
[8]
The Board of Referees dismissed his appeal on the basis
that although the Commission had made several errors, the final determination
was correct based on the Act and the Employment Insurance Regulations.
While the applicant agrees that the final determination was correct (which was
the determination that the applicant had initially made), he was very upset
that he had received incorrect information from the Commission and that it took
the Commission several attempts to reach this final conclusion. He was also
upset that the Commission had problems locating his files and the documents
that he had provided to the Commission.
[9]
The applicant appealed this decision of the Board of
Referees to the Umpire who dismissed his appeal. Although the Umpire dismissed
the applicant’s appeal, he was obviously sympathetic to the applicant’s plight
as the Umpire stated in his reasons that:
I do repeat,
however, the final statement in CUB 53919:
I sympathize
with the claimant in this matter. There is no doubt that she finds herself in a
difficult financial situation as a result of errors by the Commission but I am
bound by the applicable legislation. I can only repeat the Board’s request that
the Commission consider the possibility of a total or partial write-off of the
overpayment or at least provide the claimant with the most reasonable
reimbursement plan.
[10]
The applicant has applied to this Court
for judicial review of the decision of the Umpire. As noted by Justice
Layden-Stevenson, writing on behalf of this Court in Attorney General of
Canada v. Trochimchuk, 2011 FCA 268:
7….The standard
of review applicable to a decision of an Umpire is correctness on questions of
law and reasonableness on the application of the law to the facts: MacNeil v. Canada (Employment
Insurance Commission), 2009 FCA 306, 396 N.R. 157; Mac v. Canada (A.G.), 2008 FCA 184, 380 N.R. 203; Canada (A.G.) v. Sveinson, 2001 FCA 315, [2002] 2 F.C. 205.
[11]
In this case it is clear (as acknowledged by counsel
for the respondent) that the applicant did nothing wrong. The applicant tried
to correct the errors that he knew the Commission was making and even attempted
to return the cheques to the Commission that the applicant knew he should not
have received. However, the only issue in this judicial review application is
whether the Umpire correctly determined the questions of law and whether his
application of the facts to the law was reasonable. In this case, it seems to
me that the Commission finally determined the allocation of the severance
amount and the vacation pay correctly in accordance with the provisions of the Act
and the Employment Insurance Regulations. Since this final determination
was the decision that was appealed to the Board of Referees and the Umpire,
there is no basis for this Court to interfere with the decision of the Umpire.
[12]
As a result, the application for judicial review is
dismissed, without costs.
"Wyman W. Webb"
“ I agree,
David Stratas J.A.”
“I agree,
D.G. Near J.A.”
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