Date: 20110505
Docket: A-53-10
Citation: 2011 FCA 153
CORAM: DAWSON J.A.
LAYDEN-STEVENSON
J.A.
STRATAS
J.A.
BETWEEN:
ZACK STEEL
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
DAWSON J.A.
[1] A person
in receipt of benefits under the Employment Insurance Act, S.C. 1996, c.
23 (Act) may also receive monies that are determined to be earnings. If a
claimant receives benefits and earnings for the same period of time, the
claimant is obliged to repay to the Receiver General any overpayment of
benefits that results from the receipt of earnings. The amount to be repaid is equal
to the amount of the benefits that would not have been paid if the earnings had
been paid or payable at the time the benefits were paid (section 45 of the
Act).
[2] Paragraph 54(k) of the Act authorizes the Commission
to make regulations allowing it to write-off amounts owing under various
sections of the Act, including monies owing under section 45 as a result
of the overpayment of benefits. Subsection 56(1) of the Employment Insurance
Regulations, SOR/96-332 (Regulations) allows overpayments owing under
section 45 of the Act to be written-off in a number of circumstances including
where:
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56. (1)(f) the Commission considers that,
having regard to all the circumstances,
(i) the penalty or amount, or the interest
accrued on it, is uncollectable, or
(ii) the repayment of the penalty or amount,
or the interest accrued on it, would result in undue hardship to the
debtor. [emphasis added]
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56. (1)f) elle estime, compte tenu des
circonstances, que :
(i) soit
la pénalité ou la somme, y compris les intérêts courus, est
irrécouvrable,
(ii) soit le remboursement de
la pénalité ou de la somme, y compris les intérêts courus, imposerait
au débiteur un préjudice abusif. [Non souligné dans l’original.]
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[3] A line of
jurisprudence from this Court, commencing with Cornish-Hardy v. Canada (Board
of Referees), [1979] 2 F.C. 437; aff’d [1980] 1 S.C.R. 1218 and Canada
(Attorney General) v. Filiatrault (1998), 235 N.R. 274 has consistently
held that decisions of the Commissioner with respect to write-offs are not
subject to the appeal provisions in the Act. A claimant must therefore seek
judicial review of such decisions in what is now the Federal Court.
[4] In
Cornish-Hardy the relevant provision with respect to the right of appeal
was subsection 94(1) of the Unemployment Insurance Act, 1971,
S.C. 1970-71-72, c. 48, which, by the time of Filiatrault, had become
subsection 79(1) of the Unemployment Insurance Act, R.S.C. 1985, c. U-1.
This provision gave a right of appeal to a “claimant or an employer”.
[5] In
1996, Parliament amended the Unemployment Insurance Act. Its title
became the Employment Insurance Act. The appeal provisions were placed
in subsection 114(1) of the Act which provided that a “claimant or other person
who is the subject of a decision of the Commission” might appeal to the Board
of Referees (Board).
[6] Zack
Steel, the applicant, brings this application for judicial review of a decision
of an Umpire (CUB 73803) who was seized with Mr. Steel’s appeal from a decision
of the Board. On this application Mr. Steel wishes to argue that a claimant,
such as himself, who has been refused a write-off by the Commission is a person
who is “the subject of a decision of the Commission” and so is entitled to
appeal the refusal of a write-off to the Board. He states that all of the
decisions of this Court subsequent to the 1996 amendment of the Act which have
followed Cornish-Hardy and Filiatrault were made per incurium
because the Court’s attention was not called to the change in wording of the
appeal provision. Specifically, Mr. Steel asks the Court to quash the decisions
of the Commission, the Board, and the Umpire and order that costs be paid to
him because:
1.
The
Umpire failed to exercise his jurisdiction to determine whether the Commission
had properly exercised its discretion to write-off overpayments of benefits
paid to Mr. Steel.
2.
The
Umpire failed to find that the Commission improperly exercised its discretion to
write-off amounts because the Commission failed to provide reasons concerning
Mr. Steel’s request for a write-off and failed to respond at all to his
request.
3.
The
Umpire failed to find that the Commission’s calculation of the overpayment was
incorrect and inconsistent with the Act and the Regulations.
The sections of the Act and the Regulations
referred to in these reasons are set out in the Appendix to these reasons.
[7] I
will first review the facts before the Court before framing the issues that I
believe must be decided.
The Facts
[8] Mr.
Steel left his employment and applied for regular employment insurance benefits
under the Act. After some initial difficulties, his claim was established
effective July 29, 2007. On December 2, 2007, Mr. Steel was involved in a car
accident. Around May 28, 2008, Mr. Steel received a lump sum payment of
$8,642.92 from his motor vehicle insurer in respect of income replacement
benefits. On July 31, 2008, Mr. Steel disclosed the receipt of these
income replacement benefits to the Commission.
[9] Shortly
thereafter, Mr. Steel was informed by a representative of the Commission that
it might be necessary to reassess his claim. Mr. Steel claims that he responded
that he should be entitled to a write-off of any amounts he owed to the
Commission because, for a variety of reasons, he had experienced significant
delay in receiving his employment insurance benefits.
[10] The
Commission subsequently determined that the income replacement benefits Mr.
Steel had received constituted earnings, and allocated these monies to the
period commencing on December 9, 2007 and ending on June 7, 2008. On its
own motion, the Commission then transformed Mr. Steel’s claim into a claim
for sickness benefits and informed him that he would be paid the maximum 15
weeks of special benefits on account of sickness. The rationale for this change
was that Mr. Steel had indicated in his reports to the Commission that he would
not be able and available to return to perform the same work under the same
conditions. The effect of this transformation was to limit Mr. Steel’s
claim to a maximum period of 15 weeks. Finally,
the
Commission determined that as a result of receiving the income replacement
benefits Mr. Steel had been overpaid benefits and he owed the Commission
$9,115.00. Two Notices of Debt were issued to Mr. Steel for the combined sum of
$9,115.00 in August 2008.
[11] Mr.
Steel says that after receiving the Notices of Debt he spoke with a
representative of the Commission and expressed concern about the calculation of
the amount of overpayment. He asserts he also informed the representative that
he should be entitled to a write-off. He claims that he did not receive a
satisfactory response from the Commission concerning his request for a
write-off and that it failed to provide him with any explanation as to why his request
for a write-off was rejected.
[12] On
August 22, 2008, Mr. Steel filed a notice of appeal to the Board. In the notice
of appeal Mr. Steel complained that the amount of overpayment had never been
properly determined because he was still owed money for his regular benefits. Mr.
Steel stated that the overpayment was unforeseeable and occurred due to
administrative error and a “lag in co-operation with legal proceedings.” No
reference is made in the notice of appeal to any request for a write-off having
been made.
[13] At the appeal, after characterizing the issues before it, the
Board found that:
1. The
Commission had correctly allocated the income replacement benefits as earnings.
The Commissioner’s interpretation was supported by sections 35 and 36 of the
Regulations.
2. Mr.
Steel had received 15 weeks of sickness benefits and was not entitled to
additional sickness benefits in the qualifying period at issue.
3. Neither
the Board, nor an Umpire, were empowered to deal with issues relating to the
write-off of an overpayment.
[14] Mr.
Steel appealed the decision of the Board to an Umpire.
The Decision of the
Umpire
[15] The
Commission made two concessions before the Umpire. They were:
1. The
Commission erred when it converted Mr. Steel’s claim to sickness benefits as of
December 2, 2007.
2. The
Commission erred when it denied sickness benefits as of March 31, 2008.
[16] The
consequence of these errors was that Mr. Steel was entitled to regular benefits
at the time his claim was in effect and so he was not subject to having his
claim end when the 15 week maximum period for sickness benefits expired.
The monetary effect of the Commission’s concessions was to reduce the amount of
the asserted overpayment to $6,146.00.
[17] In
his brief reasons the Umpire confirmed that the income replacement benefits
were properly allocated to income pursuant to paragraph 35(2)(d) of the Regulations
and that Mr. Steel was not entitled to more than 15 weeks of sickness benefits
because that is the maximum entitlement to such benefits. The record does not
explain why the Umpire had no regard to the Commission’s concessions, including
its concession that the claim should not have been converted to a claim for
sickness benefits.
The Issues to be Decided
[18] In
my view, the issues to be decided are:
1. Did
the Commission make any decision in respect of a request to write-off monies
owing by Mr. Steel on account of an overpayment of benefits?
2. If
so:
a. Did the Board
and the Umpire err by failing to review the Commission’s decision?
b. Did the
Commission breach Mr. Steel’s right to procedural fairness by failing to
provide reasons or respond to his request for a write-off?
3. Did
the Umpire err by affirming the Commission’s calculation of the amount of the
overpayment of benefits?
4.
What
is an appropriate award of costs?
Consideration of the
Issues
a. Did
the Commission make any decision in respect of a request to write-off monies
owing by Mr. Steel on account of an overpayment of benefits?
[19] As
referenced above, subsection 114(1) of the Act allows a person “who is the
subject of a decision of the Commission” to appeal to the Board. In the words
of subsection 114(1):
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114. (1) A claimant or other person who is the subject of a
decision of the Commission, or the employer of the claimant, may
appeal to the board of referees in the prescribed manner at any time
within
(a) 30 days after the day on which a decision is communicated
to them; or
(b) such further time as the Commission may in any particular
case for special reasons allow. [emphasis added]
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114. (1)
Quiconque fait l’objet d’une décision de la Commission, de même que
tout employeur d’un prestataire faisant l’objet d’une telle décision, peut,
dans les trente jours suivant la date où il en reçoit communication, ou dans
le délai supplémentaire que la Commission peut accorder pour des
raisons spéciales dans un cas particulier, interjeter appel de la
manière prévue par règlement devant le conseil arbitral. [Non souligné
dans l’original.]
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[20] It follows
that, irrespective of the legal argument Mr. Steel wishes to advance concerning
a requested write-off, he must establish that either the Commission refused a request
to write-off a debt, or it refused to consider a request for a write-off. In
the absence of either a refusal or a refusal to consider by the Commission, Mr.
Steel could not pursue the write-off issue at all because he would not be a
“person who is the subject of a decision of the Commission.” As will be
explained below, the Commission in this case neither considered nor refused to
consider a request for a write-off.
[21] It
is indisputable that any request for a write-off must, in the first instance,
be made to the Commission. Whether the Commission made a
decision about a write-off request is an issue that was not considered by
either the Board or the Umpire. The Board simply relied upon the prior jurisprudence
of this Court to dismiss Mr. Steel’s appeal. The Umpire was silent on the issue
of a write-off. Notwithstanding that this issue was not considered below, given
the opposing views of the parties in this respect, we must first be satisfied
that the Commission rendered a decision on Mr. Steel’s request for a
write-off. Resolution of this issue requires a review of Mr. Steel’s affidavit
and the whole of the Appeal Docket.
[22] Mr.
Steel swears in his affidavit that he requested a write-off in three telephone
conversations. Each telephone conversation he references in his affidavit
appears to be memorialized in a document called an “AppliMessage” prepared by a
Service Canada employee. In each relevant AppliMessage a Service Canada
employee purports to summarize the information received by telephone from Mr.
Steel. Mr. Steel has raised no complaint about the accuracy or the completeness
of the relevant AppliMessages.
[23] Mr. Steel states that he spoke to a representative of the Commission
after making his voluntary disclosure. The first AppliMessage
is in respect of a telephone conversation with Mr. Steel on August 13,
2008. Mr. Steel is said to raise an issue with respect to the conversion of his
claim for regular benefits to a claim for sickness benefits. No reference is
made to a request for a write-off of an overpayment.
[24] Mr.
Steel states that the second telephone conversation occurred after he received
the two Notices of Debt. This appears to correspond with the second
AppliMessage prepared in respect of a conversation with Mr. Steel on August 22,
2008. Mr. Steel is reported to have requested an explanation of the overpayment
and to have expressed concern about the requirement to repay monies within a
specified period. No reference is made to a request for a write-off.
[25] Mr.
Steel states his third request was made on September 3, 2008. An AppliMessage
exists for a call made on that day. This message does make reference to the
issue of a write-off. The text of the message is as follows:
Mr. Steel said:
He is interested in having the
overpayment written off because the error is not his.
I said the overpayment is a
result of allocation, and of the change in claim type, not an error, but even
if there were an error, he would be expected to return any moneys he is not
entitled to.
He said that he never asked
for sickness benefits, and was not sick, but had to do modified work, and that
the insurance company paid him on those terms after he was injured coming out
of a car.
I said:
He should ask the doctor for a
letter giving his status, letting us know what his limitations were during the
claim, what dates he was unable to work, and what date he became able to work,
and we can reconsider his file.
He said he may discuss it with
his lawyer, and I gave him my phone number and fax number.
[26] This
is the sole evidence Mr. Steel points to in the Appeal Docket which documents
any reference to a request for a write-off of an overpayment. The AppliMessage refers
only to an expression of interest on Mr. Steel’s part.
[27] Nowhere
in the record is there any indication that Mr. Steel provided information to
the Commission detailing the basis of any request for a write-off, nor is there
any information in the record about the collectibility of any overpayment or
the hardship that would result if an overpayment was collected. The absence of
the latter information is significant because those are the grounds for relief
set out in paragraph 56(1)(f) of the Regulations, which is the only
write-off provision in the Regulations potentially applicable to Mr. Steel.
[28] There
is no evidence in the record that the Commission at any time considered a
request to write-off any overpayment.
[29] I
am satisfied on the basis of the unchallenged content of the AppliMessages that
Mr. Steel never actually requested a decision from the Commission concerning a
write-off. At best, on September 3, 2008, he expressed interest in receiving a
write-off because any overpayment was the result of someone else’s error. In
consequence, the Commission never made any decision about whether any
overpayment should be written-off nor did it refuse to make a decision it was
asked to make. In his memorandum of fact and law at paragraph 56 counsel for
Mr. Steel argued that “the lack of any communication from the Commission at all
leads one to infer that no decision was made at all: Mr. Steel’s request
was ignored or forgotten.” While in oral argument counsel referred to this as
an “imprudent” statement, I believe, in the circumstances, it is a fair
inference from the Commission’s silence that no decision was made by the
Commission.
[30] In
the absence of a decision there is no basis upon which the Board or the Umpire could
decide the issues Mr. Steel wishes to raise concerning a write-off of his
indebtedness. He is not a “person who is the subject of a decision of the
Commission” who may appeal from the decision to the Board. Nor is there a
decision that could be judicially reviewed in the Federal Court. The question
Mr. Steel wishes to raise simply does not arise on this record. There is no
justiciable issue.
[31] Before
leaving this issue, I should deal with Mr. Steel’s submission that the two
Notices of Debt evidence a decision on the write-off. I am satisfied that the
Notices of Debt can be treated as decisions taken under subsection 52(2) of the
Act that are subject to appeal under subsection 114(1). See Braga v. Canada (Attorney
General),
2009 FCA 167, 392 N.R. 295 at paragraph 41. However, I have not been satisfied
that the Notices of Debt evidence any decision about a write-off because Mr.
Steel’s only recorded reference to a write-off came after the issuance of these
documents. The Notices of Debt simply evidence the amount calculated by the
Commission to be owing by Mr. Steel.
[32] Absent
a decision by the Commission concerning a requested write-off, there is also no
basis on which to consider Mr. Steel’s complaint that the Commission
breached his right to procedural fairness by failing to give reasons. I
therefore turn to consideration of the proper quantification of the
overpayment.
b. Did
the Umpire err by affirming the Commission’s calculation of the amount of the
overpayment of benefits?
[33] Leaving
aside for the moment the concessions made by the Commission before the Umpire,
in his written submissions Mr. Steel argued that the Umpire erred by:
1. Concluding
that the income replacement benefits Mr. Steel received fell within the
definition of earnings pursuant to paragraph 35(2)(d) of the Regulations;
2. In
the alternative, if the income replacement benefits did fall within the
definition of earnings, failing to apply the deduction rules found in
subsection 19(2) of the Act.
[34] During
oral argument counsel for Mr. Steel abandoned the second asserted error and so
it is not necessary to deal with this argument.
i. Did the Umpire err by concluding that
the income replacement benefits fell within the definition of earnings pursuant
to paragraph 35(2)(d) of the Regulations?
[35] Monies
received by claimants that are determined to be earnings are taken into account
to determine the amount of benefits to be repaid to the Commission (section 45
of the Act). Section 35 of the Regulations specifies what income received
by a claimant constitutes earnings. For the purpose of this application, the
relevant provision is paragraph 35(2)(d) which provides:
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35. (2) Subject to
the other provisions of this section, the earnings to be taken into
account for the purpose of determining whether an interruption of earnings
under section 14 has occurred and the amount to be deducted from benefits
payable under section 19, subsection 21(3), 22(5), 152.03(3) or 152.04(4) or
section 152.18 of the Act, and to be taken into account for the
purposes of sections 45 and 46 of the Act, are the entire income of a
claimant arising out of any employment, including
[…]
(d) notwithstanding
paragraph (7)(b) but subject to subsections (3) and (3.1), the
payments a claimant has received or, on application, is entitled to
receive from a motor vehicle accident insurance plan provided under a
provincial law in respect of the actual or presumed loss of income from
employment due to injury, if the benefits paid or payable under the Act are
not taken into account in determining the amount that the claimant receives
or is entitled to receive from the plan; [emphasis added]
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35. (2) Sous réserve
des autres dispositions du présent article, la rémunération qu’il faut
prendre en compte pour vérifier s’il y a eu l’arrêt de rémunération visé
à l’article 14 et fixer le montant à déduire des prestations à payer en vertu
de l’article 19, des paragraphes 21(3), 22(5), 152.03(3) ou 152.04(4), ou de
l’article 152.18 de la Loi, ainsi que pour l’application des articles 45
et 46 de la Loi, est le revenu intégral du prestataire provenant de tout
emploi, notamment :
. . .
d) malgré
l’alinéa (7)b) et sous réserve des paragraphes (3) et (3.1), les
indemnités que le prestataire a reçues ou a le droit de recevoir, sur
demande, dans le cadre d’un régime d’assurance-automobile prévu par une
loi provinciale pour la perte réelle ou présumée du revenu d’un emploi par
suite de blessures corporelles, si les prestations payées ou payables en
vertu de la Loi ne sont pas prises en compte dans l’établissement du montant
que le prestataire a reçu ou a le droit de recevoir dans le cadre de ce
régime; [Non souligné dans l’original.]
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[36] Paragraph
35(7)(b) and subsections 35(3) and (3.1), referred to in paragraph
35(2)(d) are contained in the Appendix to these reasons. They are not
material to the issue now before the Court.
[37] It
is not disputed by the parties that the income replacement benefits in issue
were received by Mr. Steel from a motor vehicle accident insurance plan
provided under a provincial law, or that the benefits paid under the Act were
not taken into account in order to determine the amount Mr. Steel received
from his insurer. Therefore, the question to be determined on this application
is whether the payments Mr. Steel received were “in respect of the actual or
presumed loss of income from employment due to injury.”
[38] Mr.
Steel argues that he was unemployed at the time of his accident so that it
follows that he lost no income due to the accident and indeed could lose no
income. The income replacement benefits he received were paid pursuant to
paragraph 2 of subsection 4(1) of the Statutory Accident Benefits
Schedule-Accidents on or after November 1, 1996, O. Reg. 403/96 (Ontario
Regulations). He states that such benefits are not based on an actual or
presumed loss of employment and therefore do not fall within paragraph 35(2)(d)
of the Regulations. Mr. Steel relies upon the decision of this Court in Gall
v. Canada, [1995] 2
F.C. 413.
[39] In
my view, this Court’s decision in Gall does not assist Mr. Steel. Gall
does not stand for the proposition that persons unemployed at the time of an
accident cannot receive benefits in respect of actual or presumed loss of
income from employment. The Court explained, at paragraph 26 of its reasons,
that it is necessary to “examine applicable provincial legislation in each case
in order to determine the precise purpose for which the no-fault payments were
in fact made.” The Court was not satisfied on the evidence that benefits paid in
that case were earnings within the scope of the provision then equivalent to
paragraph 35(2)(d) of the Regulations.
[40] The
relevant provincial regulation has been amended subsequent to the decision in Gall.
The relevant provisions of the Ontario Regulations for the purpose of this
application are sections 4, 5 and 6 (found in the Appendix to these reasons).
The following points may be taken from those sections:
1. These
sections are found in Part II of the Regulations under the heading “Income
Replacement Benefit.” Headings may be used as an aid to the construction of an
enactment. See Gall at paragraph 16.
2. Under
subsection 4(1) of the Ontario Regulations, income replacement benefits can be
paid if the insured person meets any of the following qualifications:
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1.
The insured person was employed at the time of the accident and, as a result
of and within 104 weeks after the accident, suffers a substantial inability
to perform the essential tasks of that employment.
2. The
insured person,
i. was not employed at the time of the accident,
ii. was employed for at least 26 weeks during the 52 weeks before the
accident or was receiving benefits under the Employment Insurance Act
(Canada) at the time of the
accident,
iii. was 16 years of age or more or was excused from attendance at school
under the Education Act at the time of the accident, and
iv. as a result of and within 104 weeks after the accident, suffers a
substantial inability to perform the essential tasks of the employment in
which the insured person spent the most time during the 52 weeks before the
accident.
3.
The insured person,
i. was entitled at the time of the accident to start work within one year
under a legitimate contract of employment that was made before the accident
and that is evidenced in writing, and
ii. as a result of and within 104 weeks after the accident, suffers a
substantial inability to perform the essential tasks of the employment he or
she was entitled to start under the contract. [emphasis added]
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1.
Elle était employée au moment de l’accident et souffre, à la suite de
l’accident et dans les 104 semaines qui le suivent, d’une incapacité
importante à accomplir les tâches essentielles de cet emploi.
2. Elle :
i. n’était pas employée au moment de l’accident,
ii. était employée pendant au moins 26 des 52 semaines qui ont précédé
l’accident ou recevait des prestations en vertu de la Loi sur
l’assurance-emploi (Canada) au moment de l’accident,
iii. avait au moins 16 ans ou était dispensée de la fréquentation scolaire
aux termes de la Loi sur l’éducation au moment de l’accident,
iv. souffre, à la suite de l’accident et dans les 104 semaines qui le
suivent, d’une incapacité importante à accomplir les tâches essentielles de
l’emploi auquel elle a consacré le plus de temps pendant les 52 semaines qui
ont précédé l’accident.
3.
Elle :
i. avait le droit, au moment de l’accident, de commencer à travailler dans
l’année aux termes d’un contrat de travail légitime, conclu avant l’accident
et attesté par écrit,
ii. souffre, à la suite de l’accident et dans les 104 semaines qui le
suivent, d’une incapacité importante à accomplir les tâches essentielles de
l’emploi qu’elle avait le droit de commencer à occuper aux termes du contrat.
[Non souligné dans l’original.]
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3. Under
subsection 5(1), subject to subsection 5(2), income replacement benefits are
payable during the period “the insured person suffers a substantial inability
to perform the essential tasks of the employment in respect of which he or she
qualifies for the benefit under section 4.”
4. Pursuant
to subsection 6(1), the amount of the income replacement benefits is calculated
with respect to the insured person’s “net weekly income from employment
determined in accordance with section 61.”
5. Pursuant
to subsection 6(2), the insurer may deduct from the amount of the income
replacement benefits payable 80% of the net income received by the insured
person in respect of any employment subsequent to the accident.
[41] On
the basis of the plain language of the relevant provisions of the Ontario
Regulations, I conclude that the income replacement benefits are paid “in
respect of the actual or presumed loss of income from employment due to injury”
and so fall within the scope of paragraph 35(2)(d) of the Regulations.
[42] This
construction is consistent with the evidence before the Umpire, which included
advice from the automobile insurer that the processing of the income
replacement benefits claim was based in part upon information provided from his
former employer.
[43] It follows that Mr. Steel has not established that the Umpire
erred by affirming the Commission’s characterization of the income replacement
benefits as earnings.
ii.
The Commission’s concessions
[44] As
a result of the Commission’s concessions before the Umpire, the Umpire erred by
affirming the Commission’s quantification of the overpayment. The overpayment
should have been reduced to $6,146.00. It follows that I would allow this
application in part and would return the matter to the Chief Umpire or his
designate for redetermination in accordance with the direction that, without
prejudice to Mr. Steel’s right to request that the amount owing be written-off,
the amount of the overpayment is $6,146.00.
c. Costs
[45] The
parties agree that if Mr. Steel is wholly successful on this appeal he should
receive costs in the amount of $5,000.00. While Mr. Steel has not been wholly
successful, I would award him the costs of this application fixed in the amount
of $5,000.00, all-inclusive. In my view, such an award is appropriate for the
reasons that follow.
[46] First,
the Commission knew by the time of the hearing before the Board that Mr. Steel
wished to pursue a write-off of the overpayment, albeit on the ground of
administrative error. Notwithstanding that knowledge, no substantive response
was made to Mr. Steel by the Commission. The Commission confined its response
to arguing before the Board that neither the Board nor the Umpire were
empowered to deal with the request (See Representations of the Commission to
the Board, at page 65 of the respondent’s record). It would have been helpful
to all if the Commission had clarified that it had made no decision about a
requested write-off.
[47] Second,
having conceded before the Umpire that its calculation of the overpayment was
wrong, the Commission then did nothing to rectify the error after the Umpire
inexplicably failed to deal with this issue. Section 120 of the Act permits an
Umpire to rescind or amend a decision if the Umpire is satisfied that the
decision was based on a mistake as to some material fact. When its concession
was ignored, the Commission ought to have asked the Umpire to amend his
decision.
[48] In
my view, the Commission’s conduct unnecessarily lengthened this proceeding. At the
least, by failing to seek an amendment of the Umpire’s decision the Commission
compelled Mr. Steel to put this aspect of his claim in issue in this
application. At worst, this proceeding would have been unnecessary had the
Commission clarified that it made no decision about a write-off and then
corrected its error in the calculation of the overpayment.
Conclusion
[49] In summary,
on the basis of the Commission’s concession I would allow the application in
part and would return the matter to the Chief Umpire or his designate for
redetermination in accordance with the direction that the amount of the
overpayment is $6,146.00. I would order the respondent to pay costs to the
applicant fixed in the amount of $5,000.00, all-inclusive.
“Eleanor R. Dawson”
“I agree
Carolyn Layden-Stevenson J.A.”
STRATAS J.A. (Concurring
Reasons)
A. Introduction
[50] Mr. Steel has appealed from the
Commission to the Board of Referees and then to the Umpire, and now he has
proceeded to this Court by way of judicial review. Was that the right route? Or
should he have proceeded directly from the Commission to the Federal Court by
way of judicial review?
[51] Simply put, we are faced with a
basic jurisdictional question: is it our job to determine this case, or is it
the job of the Federal Court? The parties fully argued this question before us.
[52] Can we decline to answer this
jurisdictional question and simply deal with the merits of this case? I think
not. On the merits of this case, the respondent invites us to examine the
evidentiary record, find as a fact that the Commission has not decided Mr.
Steel’s write-off request, and dismiss this application as premature. But is it
our job to examine the evidentiary record, make factual findings, and reach a
conclusion on the merits, or is it the job of the Federal Court? The jurisdictional
question cannot be avoided. Until it is answered, we cannot proceed. And, aside
from necessity, there are many good reasons, set out below, why we should
answer this question in this particular case.
[53] In my view, this Court does have
jurisdiction, for the reasons set out below. Accordingly, this Court can
determine the merits of Mr. Steel’s case. On the merits, I agree with my
colleague’s cogent reasons and I concur with the judgment that she proposes.
B. The
jurisdictional issue
[54] In this case, Mr. Steel became
liable to pay back an overpayment of benefits. He says that he requested the
Commission to write-off that liability under subsection 56(1) of the Employment
Insurance Regulations, SOR/96-332 because of “undue hardship.” Mr. Steel
contends that the Commission decided against his request for a write-off.
[55] Accordingly, Mr. Steel has
pursued appeals to the Board of Referees and the Umpire under subsection 114(1)
and section 115 of the Employment Insurance Act, S.C. 1996, c. 23. These
provisions, set out in the schedule to my colleague’s reasons, allow a
“claimant” or an “other person” to appeal to the Board of Referees and the
Umpire. From there, a judicial review may be brought to this Court under
section 118 of the Act.
[56] On the existing authorities of
this Court, Mr. Steel is not a “claimant”: Cornish-Hardy v. Canada (Board of
Referees),
[1979] 2 F.C. 437 (C.A.); aff’d [1980] 1 S.C.R. 1218 and Canada (Attorney General)
v. Filiatrault (1998), 235 N.R. 274 (F.C.A.).
[57] Therefore, the jurisdictional
issue boils down to whether Mr. Steel is an “other person” under subsection
114(1) and section 115 of the Act. If Mr. Steel is an “other person,” then he
can appeal to the Board of Referees and the Umpire and, from there, can apply
to this Court for judicial review under section 118 of the Act. If Mr. Steel is
not an “other person,” then his only recourse is by way of judicial review from
the Commission’s refusal to the Federal Court under sections 18 and 18.1 of the
Federal Courts Act, R.S.C. 1985, c. F-7.
[58] For some time now, this Court has
held that persons
aggrieved by write-off decisions made by the Commission have to proceed by way
of application for judicial review to the Federal Court: Cornish-Hardy and
Filiatrault, both supra. The appeal and review route involving
the Board of Referees, the Umpire and this Court is not available.
[59] However, Cornish-Hardy and
Filiatrault arose under different statutory provisions: just before a
statutory reform in 1996, these provisions were subsection 79(1) and section 80
of the Unemployment Insurance Act, R.S.C. 1985, c. U-1. These provisions
were more limited than subsection 114(1) and section 115 of the current Act. Subsection
79(1) only allowed a “claimant” or “an employer of the claimant” to appeal from
a decision of the Commission to the Board of Referees. Section 80 allowed “the
Commission, a claimant, an employer or an association of which the claimant or
employer is a member” to appeal from a decision of the Board of Referees to the
Umpire. Neither provision allowed an “other person” to appeal.
[60] Although subsection 114(1) and
section 115 of the current Act are broader in that they allow an “other person”
to appeal, our Court has continued to follow the position in Cornish-Hardy
and Filiatrault: Buffone v. Canada (Minister of Human
Resources Development), 2001 CanLII 22143 (F.C.A.); Canada
(Attorney General) v. Mosher, 2002 FCA 355; Canada (Attorney General) v.
Villeneuve, 2005 FCA 440.
[61] In each of Buffone, Mosher
and Villeneuve, this Court regarded the jurisdictional issue as settled.
The reasons of each case suggest that the Court had not received any
submissions on the relevant statutory provisions. In each case, the Court had
before it a benefits recipient without legal representation.
C. Why we must
determine the jurisdictional issue, and determine it at the outset
[62] In my view, the jurisdictional
issue logically precedes all other issues before us. In particular, it precedes
what I shall call the “next issue.” The next issue is whether the judicial
review should be dismissed for prematurity: whether the Commission has made a
decision one way or the other in this matter.
[63] As I have mentioned in paragraph
52 above, and as my colleague’s detailed reference to the record of the case
demonstrates, the next issue involves examining the factual minutia in the evidentiary
record, making factual findings, and reaching a conclusion on the merits. In my
view, before we delve into the next issue and perform those tasks, we should
first ask whether those tasks are to be done by this Court or the Federal Court.
Since this Court is a statutory court, not a court of inherent jurisdiction, we
should be cautious about embarking upon tasks that, in reality, may be the
tasks of others.
D. Why,
in any event, we should exercise our discretion in favour of determining the
jurisdictional issue
[64] Even
if we did not have to determine the jurisdictional issue, I would still
exercise my discretion in favour of determining it.
[65] To be sure, there is much to be
said for not determining the jurisdictional issue. A minimal approach to
judicial decision-making usually has great merit. Under this approach, sometimes
called “judicial minimalism,” we fashion solutions that are practical, routine,
and uncontroversial and apply them to the cases before us, avoiding broad,
unnecessary pronouncements. Sometimes, in search of solutions, we might
consider a modest reform to our judge-made law. But we reform it only if
necessary and appropriate, only as little as necessary, and always subject to
Parliament’s laws which bind us.
[66] When we discard judicial
minimalism and, instead, gratuitously pronounce sweeping legal principles, we
expose ourselves to the charge that we are law-making – a task beyond our
remit, unelected as we are. Also, without the real-life facts that inform our
pronouncements, temper our judgment, and keep us accountable, we are more
likely to be wrong, more likely to cause disorder, and more likely to injure.
[67] This is especially so in social
benefits cases, such as this. In these cases, usually we see the Crown with
counsel facing benefits claimants without counsel. One-sided submissions are
the norm. In such circumstances, broad pronouncements founded upon such
submissions are hazardous, and the appearance of fairness, if not fairness
itself, may suffer.
[68] But too great a devotion to
judicial minimalism sometimes can impose too great a cost. Pressing issues can
linger and fester, and litigants may suffer for that.
[69] Consider, as an example, the
plight of Mr. Steel. The majority of this Court will decide this case without
determining the jurisdictional issue he has placed before us. Then the Commission
will rule on whether Mr. Steel is entitled to a write-off. Assuming the
Commission rules adversely to him, he will have to choose a route of review without
the benefit of a determination on the jurisdictional issue. If he chooses the
wrong route of review, he will be forced to go back to where he was before and
start all over again. In a case like this, too great a devotion to judicial
minimalism can ensnare benefits recipients in a frustrating game of “snakes and
ladders.”
[70] Of course, after receiving our
judgment in this case, Mr. Steel may not have the resources or the resolve to
bother further with any of this. If that happens, the jurisdictional issue will
be left for next time. Next time, though, there will be one big difference: it
is almost certain that the benefits recipient appearing before us will lack
legal representation.
[71] This particular social benefits case
is quite unusual: before us are opposing parties, both represented by counsel
of capability, both proffering legal submissions of high quality. This makes it
safer and fairer to determine the jurisdictional issue, which is a narrow issue
of law divorced from the particular facts of this case. Further, by determining
the jurisdictional issue once and for all, we will provide some assistance to
the benefits recipients who fend for themselves in this administrative regime.
To the extent that we can make basic things like appeal routes clearer and more
accessible, we should.
[72] Seizing this opportunity and
determining the jurisdictional issue in these circumstances is not dissimilar
from what we do in other exceptional circumstances. We decide moot, academic or
unnecessary issues when it is in the public interest to do so (Borowski v.
Canada (Attorney General), [1989] 1 S.C.R. 342). We allow public interest
litigation to proceed where the claimant, albeit not directly affected, is
dedicated, the issue is important, and no one else is likely to advance to
bring the issue forward (Canadian Council of Churches v. Canada (Minister of
Employment and Immigration), [1992] 1 S.C.R. 236). In the area of social
benefits law, we have sometimes taken advantage of the rare presence of
represented parties to go further than necessary in order to clear up some
jurisprudential uncertainty: e.g. Gill v. Canada (Attorney General),
2010 FCA 182. Why not do so here?
[73] In this case, despite the merits
of judicial minimalism, we should decide the jurisdictional issue even if it is
not necessary to decide it. It is safe, practical and just to do so.
E. The merits of
the jurisdictional issue
[74] In my view, Parliament’s
decision to add the words “other person” to subsection 114(1) and section 115
of the current Act was intended to allow persons, such as Mr. Steel, to appeal
rulings on write-off requests to the Board of Referees and the Umpire, and then
to proceed to this Court. Were it not so, it would be very difficult to see
what Parliament had in mind when it added those words.
[75] In my view, this interpretation
should be tested by examining Parliament’s overall purpose behind this
administrative scheme, as shown by the specific statutory provisions it
adopted: Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002]
2 S.C.R. 559; Chrysler Canada Ltd. v. Canada (Competition
Tribunal),
[1992] 2 S.C.R. 394. This administrative scheme is aimed at diverting issues
relating to employment insurance from the court system into the more informal,
specialized, efficient adjudicative mechanisms set up by Parliament. My
interpretation of “other person” is consistent with, and furthers that aim.
[76] A contrary interpretation would
mean that the writing-off of liabilities to repay the overpayment of benefits,
a matter related to the entitlement to employment insurance benefits, would be
diverted from this informal, specialized, efficient regime into the slower,
more formal, more resource-intensive court system. That interpretation makes no
sense. Only the clearest of statutory wording, not present here, could drive us
to such a result.
[77] The statements in Buffone,
Mosher and Villeneuve that suggest a different answer to the
jurisdictional question in this case are best regarded as not being the
considered opinion of the panels that decided them. Further, to the extent that
Cornish-Hardy and Filiatrault bar persons like Mr. Steel from
appealing to the Board of Referees and the Umpire under subsection 114(1) and
115 of the Act, they should no longer be followed. Those cases were decided
under the former Act which, unlike the current Act, did not allow “other
persons” to appeal.
[78] Therefore, in my view, Mr. Steel
was an “other person” under subsection 114(1) and section 115 and could appeal
to the Board of Referees and the Umpire and, under subsection 118, could apply
for judicial review in this Court. Therefore, this Court has jurisdiction.
[79] On the merits of Mr. Steel’s judicial
review in this Court, I agree with my colleague’s reasons and concur with her
proposed disposition of the application.
“David Stratas”
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