Date: 20110915
Docket: A-43-11
Citation: 2011 FCA 252
CORAM: NOËL
J.A.
SHARLOW J.A.
STRATAS
J.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
and
CURTIS HINES
Respondent
REASONS FOR JUDGMENT
NOËL J.A.
[1]
This
is an application by the Attorney General of Canada (the applicant) for
judicial review of a reconsideration decision (CUB 73386B) by Chief Umpire
Designate Michel Beaudry (the Umpire) dated December 17, 2010, wherein the
Umpire allowed Mr. Curtis Hines’ (the respondent) appeal and ruled that the
respondent did not knowingly provide false information to the Canada Employment
Insurance Commission (the Commission).
[2]
The
applicant contends that it was not open to the Umpire to reconsider his earlier
decision as he was not presented with “new facts” as contemplated by section
120 of the Employment Insurance Act, S.C. 1996, c. 23 (the Act). In the
alternative, the applicant contends that the alleged “new facts” did not
support the conclusion reached by the Umpire.
[3]
For
the reasons which follow, I am of the view that the Umpire was not presented with
“new facts” as the applicant contends and that he had no authority to
reconsider his earlier decision.
FACTUAL BACKGROUND
[4]
The
respondent filed an initial claim for employment insurance benefits on
September 27, 2005. On May 15, 2006, the Commission, noting discrepancies
between the declared earnings and actual earned amounts, determined that the
respondent made false or misleading statements and imposed a penalty under the
Act. On October 10, 2008 upon re-examination of the respondent’s claim, the Commission
imposed a penalty of $1,239.00 under the Act. The respondent does not contest
that he incorrectly reported his earnings in 2005 and 2006.
[5]
The
respondent first appealed the Commission’s decision to a Board of Referees (the
Board) which dismissed the appeal on December 22, 2008. The respondent then
appealed the Board’s decision to an Umpire. In both his appeals to the Board
and the Umpire, the respondent argued that his major depression affected his
ability to cope with his financial obligations. On March 20, 2009, the Umpire
Mr. Louis S. Tannenbaum (CUB 71980) dismissed the appeal as it pertained to the
issue of allocation. As to the penalty and the notice of violation, the Umpire
found that the initial Board failed to consider whether the false representations
were made knowingly and sent the matter back to a differently constituted Board
for a new hearing (applicant’s record at p. 178).
[6]
On
June 11, 2009, the new Board found that the respondent knowingly made false
representations in filing his claims for benefits. The respondent appealed the
Board’s decision to the Umpire on June 22, 2009. He argued that the Board
failed to take into consideration that he was suffering from major depression
rendering him unable to manage day-to-day finances at the time when he
incorrectly completed the reporting cards.
[7]
On
April 23, 2010, the Umpire dismissed the appeal (CUB 73386A). He noted that in
the absence of a doctor’s note providing specific information that the
respondent was in such a state of mind that he could not properly report his
work and his earnings, it was reasonable to conclude that the respondent knew
his statements were false. The Umpire ruled that the Board did not commit a
reviewable error in fact or in law, but urged the Commission to work with the
respondent to find a repayment schedule avoiding undue hardship.
[8]
On
September 16, 2010, the respondent sent a letter to the Umpire asking for
reconsideration of this last decision on the ground that he had new facts to
present. He reemphasized that his depression and alcohol use in 2005 and 2006
left him unable to complete adequately his E.I. claim. This letter was
accompanied by a letter from his physician, P.G. Methven MD, dated July 21,
2010, stating (applicant’s record at p. 37):
This patient has been under my care for
the past 20 years and is well known to me. Mr. Hines has suffered with
depression for many years, this was particularly severe 2005 and 2006 [sic].
His ability to work and complete documentation was markedly impaired by his
illness at that time.
DECISION OF THE UMPIRE
[9]
The
Umpire first recalled that in his first decision, he dismissed the appeal of
the respondent in part due to the absence of a doctor’s certificate providing
specific information that the respondent was in a state of mind such that he
could not properly report his work and earnings. Considering the September 16,
2010 letter and medical note provided by the respondent, the Umpire reversed
his ruling. He set aside the Board’s decision on the ground that the medical note
confirmed that the respondent suffered from a particularly severe depression
which markedly impaired his ability to work and produce documentation in 2005
and 2006.
[10]
The
Umpire acknowledged that the medical condition of the respondent was a fact
that was known by the respondent and which was brought to the attention of the
Board at the time of the hearing. However, the Umpire dismissed the applicant’s
contention that the medical note was not a new fact on the basis that the
respondent was not aware of the need for a medical certificate to substantiate
his claim. The Umpire also concluded that the medical note confirmed the
allegation of the respondent “that his medical condition impaired his ability
to manage his day to day affairs and led him to provide incorrect information”
(reasons at p. 2).
[11]
Based
on this additional information the Umpire proceeded to reconsider his earlier
decision and allow the appeal.
ALLEGED ERROR
[12]
In
support the application, the applicant contends inter alia that the
Umpire applied the wrong legal test in holding that he had been presented with
new facts in the form of the medical letter and note. When the correct legal
test is applied, it is clear that the Umpire was not presented with new facts.
ANALYSIS AND DECISION
[13]
The
Umpire had no authority to reconsider his initial decision in the absence of
“new facts” within the meaning of section 120 of the Act:
|
120. The Commission, a
board of referees or the umpire may rescind or amend a decision given in any
particular claim for benefit if new facts are presented or if it is satisfied
that the decision was given without knowledge of, or was based on a mistake
as to, some material fact.
|
120. La Commission, un
conseil arbitral ou le juge-arbitre peut annuler ou modifier toute décision
relative à une demande particulière de prestations si on lui présente des
faits nouveaux ou si, selon sa conviction, la décision a été rendue avant que
soit connu un fait essentiel ou a été fondée sur une erreur relative à un tel
fait.
|
[14]
The
test for determining whether “new facts” exist within the meaning of this
provision has long been established. It was reiterated in Canada (Attorney General) v.
Chan,
[1994] F.C.J. No 1916, where Décary J.A., referring to the statutory
predecessor to section 120 which bears essentially the same language, said (para.
10):
… “New facts”, for the
purpose of the reconsideration of a decision of an umpire sought pursuant to
section 86 of the Act, are facts that either happened after the decision was
rendered or had happened prior to the decision but could not have been
discovered by a claimant acting diligently and in both cases the facts alleged
must have been decisive of the issue put to the umpire.
[My emphasis]
[15]
In
assessing whether he was presented with new facts, the Umpire recognized that
the claimant was aware of his medical condition at the relevant time. However,
since the claimant was not aware of the need to substantiate his claim by way
of a medical opinion, the Umpire held that the medical letter and note constituted
“new facts”. The reasoning is set out at page 2 of his reasons as follows:
The Commission maintains that [the
claimant’s medical condition] does not constitute a new fact pursuant to
section 120 of the [Act] because it was a fact which was known to the claimant
at the time of the hearing before the [Board]. It is true that [the claimant]
raised the issue of his medical condition at the hearing before the Board. What
the claimant was not aware of however was that he needed to substantiate his claim
by way of a medical certificate. He has now done this and his doctor is
confirming what [the respondent] has been alleging from the outset; that his
medical condition impaired his ability to manage his day to day affairs and led
him to provide incorrect information, and that it was not his deliberate
intention to mislead the Commission.
[My emphasis]
[16]
In
my respectful view, the Umpire applied the wrong test in holding that the
medical letter and note confirming the claimant’s medical condition qualified
as “new facts”. The test is not whether the claimant was aware that a medical
opinion had to be produced, but whether the claimant acting diligently could
have produced this evidence.
[17]
Applying
the correct test, it is apparent that the claimant’s medical condition was
known at the relevant time and that a medical opinion confirming this condition
could have been obtained, if sought. It follows that the medical letter and
note cannot be viewed as “new facts”.
[18]
In
the absence of new facts, the Umpire had no authority to reconsider his earlier
decision. I would therefore allow the application for judicial review and set
aside the decision of December 17, 2010 thereby allowing the Umpire’s initial
decision (CUB 73386A) to stand.
“Marc
Noël”
“I
agree
K. Sharlow J.A.”
“I
agree
David Stratas J.A.”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-43-11
APPEAL FROM A DECISION OF THE CHIEF
UMPIRE DESIGNATE MICHEL BEAUDRY DATED DECEMBER 17, 2010, NO. CUB 73386B.
STYLE OF CAUSE: ATTORNEY
GENERAL OF CANADA v. CURTIS HINES
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: September 13, 2011
REASONS FOR JUDGMENT BY: NOËL J.A.
CONCURRED IN BY: SHARLOW J.A.
STRATAS J.A.
DATED: September 15, 2011
Modified
September 16, 2011
APPEARANCES:
|
Linda Lafond
|
FOR
THE APPLICANT
|
SOLICITORS OF RECORD:
|
Myles J. Kirvan
Deputy
Attorney General of Canada
|
FOR
THE APPLICANT
|
|
N/A
|
FOR
THE RESPONDENT
(SELF-REPRESENTED)
|
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