Date:
20090526
Dockets: A-522-08, A-523-08, A-526-08,
A-527-08, A-528-08
Citation: 2009 FCA 167
CORAM: EVANS
J.A.
LAYDEN-STEVENSON
J.A.
RYER
J.A.
Docket A-522-08
BETWEEN:
JACIRA BRAGA
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
Docket A-523-08
BETWEEN:
BRIAN BORGES
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
Docket A-526-08
BETWEEN:
GRACA LOPES DOS SANTOS
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
Docket A-527-08
BETWEEN:
MANUEL ALMEIDA
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
A-528-08
BETWEEN:
MARIA AMORIM
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR
JUDGMENT
RYER J.A.
[1]
Five
applications for judicial review (A-522-08, A-523-08, A-526-08, A-527-08 and
A-528-08) have been brought against five decisions of Umpire David G. Riche
(CUB 71002, CUB 71001, CUB 70999, CUB 70998 and CUB 71000) which relate to
claims by the Canada Employment Insurance Commission (the “Commission”) for the
recovery of overpayments of benefits paid, pursuant to the Employment
Insurance Act, S.C. 1996, c. 23 (the “Act”), to Jacira Braga, Brian Borges,
Graca Lopes dos Santos, Manuel Almeida and Maria Amorim (the “Employees”) after
their employment with Irwin Toy Limited (the “Employer”) was terminated as a
consequence of its insolvency. The overpayments of benefits arose by virtue of
the receipt of severance pay by the Employees after they had commenced
receiving benefits under the Act.
[2]
In
response to the requests of the parties to each application, the Court agreed
to hear the applications together on the basis that, as urged by counsel for
the parties, the decisions under review are substantially identical and the
differences in the factual circumstances in each situation are immaterial. As a
matter of convenience at the hearing, references were made to the record in
A-522-08 (Jacira Braga) and that practice will be followed in these reasons.
BACKGROUND
[3]
The
employment of each Employee was terminated in late 2000 as a consequence of the
insolvency of the Employer. No severance pay was received by any Employee at
that time. However, each Employee applied for, and was granted, benefits under
the Act. In each case, the benefit period commenced around the time of the
severance.
[4]
After
the termination of the employment of the Employees, Ernst & Young LLP (the
“Receiver”) was appointed to act as an interim receiver in respect of the
affairs of the Employer.
[5]
With
the assistance of counsel, the Employees received severance payments from the
Receiver. The first payments were received in early 2004 and the last in late
2005. These payments were made without any deductions by the Receiver, as
required by subsection 46(1) of the Act. Under that provision, anyone making a
severance payment to a person who might reasonably be considered to be
receiving benefits under the Act, must ascertain whether the severance payment
would give rise to an overpayment of benefits under the Act. If so, the payor is
obligated to pay the applicable amount of the severance payment to the Receiver
General on account of the overpayment of benefits.
[6]
In
the summer of 2006, the Commission wrote to the Employees, informing them of
its decision (the “Allocable Earnings Decision”) that their severance pay
constituted earnings received in their benefit periods that were required to be
allocated in accordance with sections 35 and 36 of the Employment Insurance
Regulations, S.O.R./96-332 (the “Regulations”). Such allocations are
relevant for the purpose of calculating the amount of any deduction from
benefits payable to the Employees, in accordance with subsection 19(2) of the
Act, or any overpayment of benefits repayable by them, in accordance with
section 45 of the Act. In its correspondence to the Employees, the Commission
advised them of their right to appeal this decision to the Board of Referees
(the “Board”).
[7]
At
the same time as it communicated the Allocable Earnings Decision to each
Employee, or shortly thereafter, the Commission sent a Notice of Debt to each
Employee that stipulated the amount of the overpayment of benefits that arose
out of the related Allocable Earnings Decision and requested payment of the
stipulated amount. Accompanying the Notice of Debt was a printed form (Braga
Respondent’s Record at page 28) that advised that an appeal from the notice
could be made to the Board.
THE BOARD’S DECISION
[8]
Counsel
for the Employees filed notices of appeal to the Board in which the decision of
the Commission that is the subject of the appeal is described as “A Notice of
Debt of an overpayment of Employment Insurance Benefits”. This is further
confirmed in correspondence from Employees’ counsel to the Commission, dated
September 22, 2006, in which counsel states, “We have filed a Notice of Appeal
to that Notice of Debt”.
[9]
In
the notices of appeal, the stated reason for the disagreement with the decision
was that the Employees believed that the overpayment of benefits that resulted
from their receipt of severance payments had been repaid by the Receiver and
that the amounts received by the Employees were net of those repayments. This
is apparent from a portion of the notice of appeal to the Board that was filed
on behalf of Jacira Braga (Braga Respondent’s Record at page 20):
The
employees’ representative counsel prepared and submitted claims on behalf of
all the terminated employees including the appellant with the interim receiver
of Irwin Toy (Ernst & Young, (“E&Y”)). Those claims were ultimately
accepted and the interim receiver made preparations to pay dividends from the
estate to the employees based upon their claims. Prior to doing so, the
appellant is advised that E&Y sent the proposed dividend payments to HRSDC
for their review in order to determine whether any amount should be deducted by
E&Y and paid to HRSDC directly on account of an EI overpayment with the
balance remaining then being paid by E&Y to the employee. According to
E&Y, HRSDC provided those amounts to E&Y which were subsequently
deducted from each of the affected employees’ dividend entitlement and paid to
HRSDC. As a result, E&Y made all the payments to HRSDC on behalf of
employees directly and no employee should be required to now pay any further
amount to HRSDC in respect to employment benefits received after being
terminated by Irwin Toy. [Emphasis added]
[10]
The
Employees changed the focus of their attack upon the Notices of Debt in the
memoranda of fact and law that were filed with the Board. Thus, according to
counsel for the Employees, the issues became (Braga Respondent’s Record at page
43):
a) Should
the Appellants be required to pay HRSDC because the Interim Receiver of Irwin
Toy failed to abide by s. 46(1) of the Employment Insurance Act, as they
are required to by law, and where such payments would now cause the
Appellants severe financial hardship?
b) Has
HRSDC proven the debt it claims to be owed?
Importantly, those memoranda of fact and
law do not contend that the amounts specified in the Notices of Debt were
incorrectly calculated or that some other amount was the correct amount of the
overpayments received by the Employees. Instead, the Employees contend that the
onus of proving the amounts of the overpayments rests with the Commission and
they effectively assert that the Commission should be “put to strict proof “of
those amounts.
[11]
The
Commission’s representations to the Board framed the issue as an appeal of the
allocation of earnings pursuant to sections 35 and 36 of the Regulations, in
essence an appeal of the Allocation of Earning Decision (Braga Respondent’s
Record at page 30).
[12]
The
Board framed the issue in the same way as the Commission, stating (Braga
Respondent’s Record at page 200) that:
The Issue
Involved
The issue in
this appeal is whether or not the claimant had earnings subject to allocation
pursuant to Sections 35 and 36 of the Employment Insurance Regulations.
[13]
The
Board then referred to the notices of appeal and enunciated the stated reason
for the Employees’ disagreement with the Notices of Debt (Braga Respondent’s
Record at page 30), as follows:
The claimant
appealed the notice of debt of $3,719.00.
Her counsel,
Koskie Minsky (KM) states that the claimant should not be required to pay HRSDC
any payment because Ernst & Young (E&Y) had paid HRSDC directly on
behalf of the claimant.
[14]
The
Board found that the Receiver did not in fact deduct and remit any amount in
respect of the overpayment of benefits to the Employees. As such, the Board
squarely addressed the reason given in the notices of appeal as to why the
Employees disagreed with the Notices of Debt.
[15]
The
Board further stated (Braga Respondent’s Record at page 201) that:
Counsel for
the claimant did not contest the amount of $12,030.77 constituting earnings
subject to allocation, as stated in the second letter of the Commission in
Exhibit 6, dated July 19, 2006.*
[* This
letter is the Allocation of Earnings Decision.]
[16]
The
Board thus concluded that the Employees had essentially conceded the allocation
of earnings issue that the Board considered to have been before it. As a
result, the Board dismissed the appeals of the Employees.
[17]
However,
the Board also acknowledged the new arguments raised by counsel for the
Employees in their memoranda of fact and law and their requests that the Board
order the Commission to pursue collection of the overpayment of benefits from
the Receiver or to write-off the debt owing by the Employees, stating (Braga
Respondent’s Record at page 203) that:
In
conclusion, Counsel for the claimant submits that the appropriate Order of the
Board of Referees in this case should be that the Commission either pursue
E&Y to pay a penalty equal to the amount of the overpayment claimed by the
Commission, or alternatively that the Commission writes off the debt.
[18]
With
respect to the new arguments, the Board found that the Receiver’s failure to
deduct the required amounts from the severance payments caused financial
hardship to the Employees. In addition, the Board found that the Commission did
not prove the quantum of the overpayments of benefits that were made to the
Employees and the Commission’s responses to information requests in respect of
the amounts of the overpayments were incomplete and unclear.
[19]
Despite
these findings, the Board declined to order the Commission to write-off the
overpayments, stating (Braga Respondent’s Record at page 206):
At issue
before the Board of Referees is an allocation of earnings and the resulting
overpayment, and in light of the lack of jurisdiction of the Board in
intervening on the amount of overpayments, the Board has no choice but to
dismiss the appeal. Our intervention is limited to recommendations.
[20]
The
Board of Referees thus recommended that the Commission write-off the
overpayments that were made to the Employees and impose a penalty on the
Receiver of an amount equal to the total of those overpayments. In that regard,
the Board stated that it was unfair for the Receiver to escape any consequences
for its failure to meet its obligations.
[21]
The
Board’s recommendation to write-off the overpayments was considered by the Commission.
It asked for additional information with respect to the financial circumstances
of the Employees, so as to ascertain whether the Employees had suffered
financial hardship as a consequence of the failure of the Receiver to comply
with subsection 46(1) of the Act. No such information was provided and the matter
was, at the date of the hearing, held in abeyance.
THE UMPIRE’S DECISION
[22]
The
Employees appealed the Board’s decision to the Umpire. In the notices of appeal,
the Employees allege that the Board failed to observe a principle of natural
justice or erred in law. The basis of the appeal was limited, as stated in
correspondence from Employees’ counsel to the Commission, dated August 7, 2008,
as follows:
We will
confine our appeal to comment #1 in the Notice of Appeal: that the Board of
Referees erred in not dismissing the Commission’s claim after finding that the
Commission had not proven its debt claimed against the appellants (fact #8 in
the Board of Referees Decision).
[23]
The
Umpire determined that the Board erred by not dealing with the allocation of
earnings issue. For that reason, he allowed the appeals and remitted the matter
to a newly constituted Board of Referees for re-hearing. In view of that
conclusion, he did not consider, in any detail, the question of whether the
Commission was prevented from collecting the overpayments in absence of proof
of those amounts. However, he did observe that the Employees had never objected
to the specific amounts that they were requested to repay.
RELEVANT STATUTORY
PROVISIONS
[24]
The
relevant statutory provisions are subsections 19(2), sections 43 to 47 and 52
of the Act. Those provisions are reproduced in the appendix to these reasons.
ISSUE
[25]
The
issue in this application is whether the Umpire erred in law by failing to
correctly identify and decide the question that was before him.
ANALYSIS
Did the Umpire correctly identify and
address the legal issue before him?
[26]
The
identification of the issues raised in an appeal to an Umpire from a decision
of a Board of Referees is a question of law, which is to be reviewed on the
standard of correctness (see Budhai v. Canada (Attorney General), 2002
FCA 298). Accordingly, this Court must ensure that the Umpire correctly
identified the issues that were before him in the applications under
consideration.
[27]
The Umpire
determined that the issue before him was whether the Board properly dealt with
the question of whether, as a result of having received severance payments, the
Employees had earnings subject to allocation under sections 35 and 36 of the
Regulations. He concluded that the Board failed to deal with that issue and
quashed its decisions dismissing the Employees’ appeals, and referred those
matters to a newly constituted Board of Referees for reconsideration.
[28]
In my
view, the Umpire erred in law by misconstruing the issue that was before the
Board and consequently, the issue that was before him. In effect, the Umpire
determined that the appeals before the Board were against the Allocable
Earnings Decisions, when in fact those appeals were taken against the Notices
of Debt.
[29]
The
Umpire’s error is perhaps understandable in that the Board stated, in the first
page of its reasons, that the issue was one of allocable earnings (See Braga
Respondent’s Record at page 199). Nonetheless, the Umpire should have
recognized that the appeals before the Board were directed at the Notices of
Debt.
[30]
This is
evident from both the notices of appeal and the memoranda of fact and law that
were before the Board. The Employees did not argue that their severance
payments were not earnings subject to allocation. Rather, their notices of
appeal alleged that the amounts they received were net of the requisite
deductions on account of overpayments. This argument presupposes the existence
of allocable earnings. Accordingly, it should have been evident to the Umpire
that the Board was not confronted with any issue with respect to the Allocable
Earnings Decision.
What was the legal issue before the Board?
[31]
In its
memoranda of fact and law, the Crown took the position that the Notices of Debt
were not appealable decisions of the Commission. However, at the hearing, the
Crown abandoned this position in light of subsection 52(2) of the Act. In those
decisions, the Commission determined that the Employees received benefits to
which they were not entitled and specified the amounts that were repayable by
them. It is clear that the Notices of Debt were put in issue before the Board.
[32]
However,
the basis upon which the Notices of Debt were challenged before the Board is
not as clear, and a review of the Employees’ arguments before the Board will be
undertaken.
Receiver Paid the Overpayments
[33]
The
notices of appeal contain allegations that overpayments were in fact paid by
the Receiver. Those allegations were not pressed by the Employees before the
Board and the Board made factual findings to the contrary, which have not been
further contested by the Employees.
Receiver Wrongfully Failed to Pay
Overpayments
[34]
The
Employees argued that because the Receiver failed to honour its obligations
under subsection 46(1) of the Act, the Receiver should be penalized by an
amount equal to the total of all of the overpayments. The basis of this
contention was apparently that to collect the overpayments from the Employees
would cause them financial hardship.
[35]
The Board
considered this argument and concluded that it had no jurisdiction to order the
Commission to write-off the overpayments, as had been requested by the
Employees. Instead, the Board recommended that the Commission write-off those
amounts. This finding of the Board was not pressed by the Employees before the
Umpire, although it was a ground of their appeals to him. In my view, the Board
correctly determined that it had no jurisdiction to make the order that was
requested of it.
Onus of Proof of Overpayments
[36]
The Employees’
third argument before the Board was that the amounts stipulated in the Notices
of Debt to be payable by the Employees were unenforceable because the Commission
had failed to prove those amounts, in accordance with the standard of proof
that is applicable to the enforcement of contractual debts at common law in
Ontario.
[37]
The Board
made factual findings that the Commission did not prove the quantum of the
overpayments and its attempts to explain its calculations to the Employees were
incomplete, unclear and inconclusive. However, the Board did not conclude that
these findings rendered the overpayments uncollectible by the Commission.
[38]
The
Employees argue that the Board erred in not reaching that conclusion and that
the Umpire erred in not intervening to correct the Board’s error.
[39]
Whether
or not the Commission is required to prove the debt in accordance with common
law principles is a question of law, reviewable by this Court on the standard
of correctness. In my view, the Board committed no legal error in declining to
place that onus on the Commission and the Umpire committed no legal error in
declining to intervene in the Board’s decision on this issue, although the
Umpire’s consideration of this issue was cursory at best.
[40]
The
ability of the Commission to reconsider its decisions to grant benefits is
found in section 52 of the Act. That provision is somewhat analogous to the “reassessment”
provisions in the
Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.). Of particular
relevance are subsections (2) and (3), which read as follows:
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52. (2) If the Commission decides that a person
(a) has received
money by way of benefits for which the person was not qualified or to which
the person was not entitled, or
(b) has not received
money for which the person was qualified and to which the person was
entitled,
the Commission shall calculate the amount of the money
and notify the claimant of its decision and the decision is subject to appeal
under section 114.
(3)
If the Commission decides that a person has received money by way of
benefits for which the person was not qualified or to which the person was
not entitled,
(a) the amount
calculated is repayable under section 43; and
(b) the day that
the Commission notifies the person of the amount is, for the purposes of
subsection 47(3), the day on which the liability arises.
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52. (2) Si elle décide
qu’une personne a reçu une somme au titre de prestations pour lesquelles elle
ne remplissait pas les conditions requises ou au bénéfice desquelles elle
n’était pas admissible, ou n’a pas reçu la somme pour laquelle elle
remplissait les conditions requises et au bénéfice de laquelle elle était
admissible, la Commission calcule la somme payée ou payable, selon le cas,
et notifie sa décision au prestataire. Cette décision peut être portée en
appel en application de l’article 114.
(3) Si la Commission décide qu’une personne a reçu
une somme au titre de prestations auxquelles elle n’avait pas droit ou au
bénéfice desquelles elle n’était pas admissible :
a) la somme calculée au titre du paragraphe (2) est celle qui est
remboursable conformément à l’article 43;
b) la date à laquelle la Commission notifie la personne de la somme en
cause est, pour l’application du paragraphe 47(3), la date où la créance a
pris naissance.
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[Emphasis
added] [Je souligne]
[41]
It
is clear to me that the Notices of Debt are decisions of the Commission that
fall within subsection 52(2) of the Act and are therefore appealable to the
Board. Subsection 52(3) of the Act provides that the amount of an overpayment
specified in a Notice of Debt becomes repayable, under section 43 of the Act,
on the date of the notification of the amount of the overpayment. Under section
44 of the Act, a person who receives an overpayment of benefits is required to
return the amount of the overpayment without delay. These provisions have the
effect of creating an enforceable debt obligation in the amount specified in
the Notice of Debt. That amount is a debt due to Her Majesty and is recoverable
in accordance with the provisions of section 47, subject to the prescription
period in subsection 47(3) of the Act.
[42]
In
my view, the common law with respect to the enforcement of contractual debts,
as described in Corning Inc. v. Trent, [1996] O.J. No. 4438 and Second
Skin and Otis Ltd. v. 1035816 Ontario Inc.(c.o.b. Willys), [1997] O.J. No
4015, has no relevance to the collection of overpayments of benefits, as
specified in Notices of Debt issued pursuant to section 52 of the Act. Support
for this conclusion appears in Canada (Attorney General) v.
Laforest (1989),
97 N.R. 95 at 100, wherein Lacombe J.A., who was dealing with earlier versions
of sections 45, 47 and 52 of the Act, stated:
… This power
to find there has been an overpayment of benefits is conferred on the
Commission by s. 57 [now s. 52], and only that section is linked to s. 49 [now
s. 45 and 47] of the Act: s. 102 is not. The decision taken by the
Commission creates a debt which becomes executory against the claimant as soon
as he is notified of the amount to be repaid. The Commission’s right to establish
its debt and recover it results from the interaction of ss. 49 and 57.
[Emphasis added]
[43]
This
statement and the language of subsection 52(3) of the Act satisfy me that the
amount of an overpayment of benefits that is specified in a Notice of Debt
becomes repayable on the date the Commission notifies the recipient of the
overpayment of the specified amount. In my view, if the debt becomes repayable
on the date of notification, it follows that the amount of the debt is
established on that date to the extent necessary to permit collection of that
amount under the Act. It follows that where the Notice of Debt is appealed, the
appellant bears the onus of demonstrating the inaccuracy of the amount
specified therein.
[44]
This
interpretation is consistent with the decision in Harjinder Sahota,
[2000] CUB 48293. In that case, Umpire Hugessen found that where an appellant
contests the amount of an overpayment, that is to say, where there are competing
calculations of the amount in issue, the Board is required to determine which of
the competing calculations must be accepted. However, no such issue was before
the Board or the Umpire in the present case and none was presented to this
Court. Simply put, the Employees did not specifically contest the amounts that
were stipulated in the Notices of Debt or attempt to show that some other
amount was correct. Instead, the issue was framed by them as one of onus of
proof.
[45]
While
the Board found that the Commission failed to prove the amounts specified in
the Notices of Debt, in my view, that finding is inconsequential because the
Commission was under no obligation to prove those amounts. If those amounts
were to be questioned, it was incumbent upon the Employees to do so by evidence
of erroneous calculations or other errors. The Employees made no such
allegations and provided no such evidence.
DISPOSITION
[46]
For
the foregoing reasons, I would allow the applications for judicial review, set
aside the decisions of the Umpire and refer the matters back to the Chief
Umpire, or his designate, for determination on the basis that the appeals from
the decisions of the Board should be dismissed. A copy of these reasons, which
apply in relation to each of the five applications for judicial review, should
be placed in the files for each of those applications.
[47]
In
reaching this conclusion, I note that the hardship deliberations of the Commission
are in progress and should be pursued to their conclusion. In so stating, I am
of the view that the requirements that must be met in order to obtain the
desired relief from the Commission are not limited by any evidence that was
before the Board or any factual findings with respect to financial hardship
that the Board may have made.
“C. Michael Ryer”
“I
agree
John
M. Evans J.A.”
“I
agree
Carolyn
Layden-Stevenson J.A.”
APPENDIX
Employment Insurance Act, S.C. 1996, c. 23,
subsection 19(2), sections 43 to 47 and 52.
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19. (2) Subject to
subsections (3) and (4), if the claimant has earnings during any other week
of unemployment, there shall be deducted from benefits payable in that week
the amount, if any, of the earnings that exceeds
(a) $50, if the claimant’s rate of weekly
benefits is less than $200; or
(b) 25% of the claimant’s rate of weekly
benefits, if that rate is $200 or more.
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19. (2) Sous réserve des
paragraphes (3) et (4), si le prestataire reçoit une rémunération durant
toute autre semaine de chômage, il est déduit des prestations qui lui sont
payables un montant correspondant à la fraction de la rémunération reçue au
cours de cette semaine qui dépasse 50 $, ou vingt-cinq pour cent de son taux
de prestations hebdomadaires si celui-ci est de 200 $ ou plus.
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43. A claimant is liable to repay an amount paid by the
Commission to the claimant as benefits
(a)
for any period for which the claimant is disqualified; or
(b)
to which the claimant is not entitled.
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43. La personne qui a touché des prestations en vertu de
la présente loi au titre d’une période pour laquelle elle était exclue du
bénéfice des prestations ou des prestations auxquelles elle n’est pas
admissible est tenue de rembourser la somme versée par la Commission à cet
égard.
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44. A person who has received or obtained a benefit
payment to which the person is disentitled, or a benefit payment in excess of
the amount to which the person is entitled, shall without delay return the
amount, the excess amount or the special warrant for payment of the amount,
as the case may be.
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44. La personne qui a reçu ou obtenu, au titre des
prestations, un versement auquel elle n’est pas admissible ou un versement
supérieur à celui auquel elle est admissible, doit immédiatement renvoyer le
mandat spécial ou en restituer le montant ou la partie excédentaire, selon le
cas.
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45. If a claimant receives benefits for a period and,
under a labour arbitration award or court judgment, or for any other reason,
an employer, a trustee in bankruptcy or any other person subsequently becomes
liable to pay earnings, including damages for wrongful dismissal or proceeds
realized from the property of a bankrupt, to the claimant for the same period
and pays the earnings, the claimant shall pay to the Receiver General as
repayment of an overpayment of benefits an amount equal to the benefits that
would not have been paid if the earnings had been paid or payable at the time
the benefits were paid.
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45. Lorsque le prestataire reçoit des prestations au
titre d’une période et que, soit en application d’une sentence arbitrale ou
d’un jugement d’un tribunal, soit pour toute autre raison, l’employeur ou une
personne autre que l’employeur — notamment un syndic de faillite — se trouve
par la suite tenu de lui verser une rémunération, notamment des
dommages-intérêts pour congédiement abusif ou des montants réalisés provenant
des biens d’un failli, au titre de la même période et lui verse effectivement
la rémunération, ce prestataire est tenu de rembourser au receveur général à
titre de remboursement d’un versement excédentaire de prestations les prestations
qui n’auraient pas été payées si, au moment où elles l’ont été, la
rémunération avait été ou devait être versée.
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46. (1) If under a labour arbitration award or court
judgment, or for any other reason, an employer, a trustee in bankruptcy or any
other person becomes liable to pay earnings, including damages for wrongful
dismissal or proceeds realized from the property of a bankrupt, to a claimant
for a period and has reason to believe that benefits have been paid to the
claimant for that period, the employer or other person shall ascertain
whether an amount would be repayable under section 45 if the earnings were
paid to the claimant and if so shall deduct the amount from the earnings
payable to the claimant and remit it to the Receiver General as repayment of
an overpayment of benefits.
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46. (1) Lorsque, soit en
application d’une sentence arbitrale ou d’un jugement d’un tribunal, soit
pour toute autre raison, un employeur ou une personne autre que l’employeur —
notamment un syndic de faillite — se trouve tenu de verser une rémunération,
notamment des dommages-intérêts pour congédiement abusif ou des montants
réalisés provenant des biens d’un failli, à un prestataire au titre d’une
période et a des motifs de croire que des prestations ont été versées à ce
prestataire au titre de la même période, cet employeur ou cette autre
personne doit vérifier si un remboursement serait dû en vertu de l’article
45, au cas où le prestataire aurait reçu la rémunération et, dans
l’affirmative, il est tenu de retenir le montant du remboursement sur la
rémunération qu’il doit payer au prestataire et de le verser au receveur
général à titre de remboursement d’un versement excédentaire de prestations.
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47.
(1) All amounts payable under section 38, 39, 43, 45, 46
or 46.1 are debts due to Her Majesty and are recoverable in the Federal Court
or any other court of competent jurisdiction or in any other manner provided
by this Act.
(2) If benefits become payable to a claimant, the amount
of the indebtedness may be deducted and retained out of the benefits.
(3) No amount due under this section may be recovered
more than 72 months after the day on which the liability arose.
(4) A limitation period established by subsection (3)
does not run when there is pending an appeal or other review of a decision
establishing the liability.
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47. (1)
Les sommes payables au titre des articles 38, 39, 43, 45, 46 ou 46.1
constituent des créances de Sa Majesté, dont le recouvrement peut être
poursuivi à ce titre soit devant la Cour fédérale ou tout autre tribunal
compétent, soit selon toute autre modalité prévue par la présente loi.
(2) Les sommes dues par un prestataire peuvent être
déduites des prestations qui lui sont éventuellement dues.
(3) Le recouvrement des créances visées au présent
article se prescrit par soixante-douze mois à compter de la date où elles ont
pris naissance.
(4) Tout appel ou autre voie de recours formé contre la
décision qui est à l’origine de la créance à recouvrer interrompt la
prescription visée au paragraphe (3).
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52.
(1) Notwithstanding section 120, but subject to subsection (5), the
Commission may reconsider a claim for benefits within 36 months after the
benefits have been paid or would have been payable.
(2) If the Commission decides that a person
(a) has received
money by way of benefits for which the person was not qualified or to which
the person was not entitled, or
(b) has not received
money for which the person was qualified and to which the person was
entitled,
the Commission shall calculate the amount of the money
and notify the claimant of its decision and the decision is subject to appeal
under section 114.
(3) If the Commission decides that a person has received
money by way of benefits for which the person was not qualified or to which
the person was not entitled,
(a) the amount
calculated is repayable under section 43; and
(b) the day that the
Commission notifies the person of the amount is, for the purposes of
subsection 47(3), the day on which the liability arises.
(4) If the Commission decides that a person was
qualified and entitled to receive money by way of benefits, and the money was
not paid, the amount calculated is payable to the claimant.
(5) If, in the opinion of the Commission, a false or
misleading statement or representation has been made in connection with a
claim, the Commission has 72 months within which to reconsider the claim.
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52. (1)
Malgré l’article 120 mais sous réserve du paragraphe (5), la Commission peut,
dans les trente-six mois qui suivent le moment où des prestations ont été
payées ou sont devenues payables, examiner de nouveau toute demande au sujet
de ces prestations.
(2) Si elle décide qu’une personne a reçu une somme au
titre de prestations pour lesquelles elle ne remplissait pas les conditions
requises ou au bénéfice desquelles elle n’était pas admissible, ou n’a pas
reçu la somme pour laquelle elle remplissait les conditions requises et au
bénéfice de laquelle elle était admissible, la Commission calcule la somme
payée ou payable, selon le cas, et notifie sa décision au prestataire. Cette
décision peut être portée en appel en application de l’article 114.
(3) Si la Commission décide qu’une personne a reçu une
somme au titre de prestations auxquelles elle n’avait pas droit ou au
bénéfice desquelles elle n’était pas admissible :
a) la somme calculée au titre du paragraphe (2) est celle qui est
remboursable conformément à l’article 43;
b) la date à laquelle la Commission notifie la personne de la somme en
cause est, pour l’application du paragraphe 47(3), la date où la créance a
pris naissance.
(4) Si la Commission décide qu’une personne n’a pas reçu la somme au
titre de prestations pour lesquelles elle remplissait les conditions requises
et au bénéfice desquelles elle était admissible, la somme calculée au titre
du paragraphe (2) est celle qui est payable au prestataire.
(5) Lorsque la Commission estime qu’une déclaration ou affirmation
fausse ou trompeuse a été faite relativement à une demande de prestations,
elle dispose d’un délai de soixante-douze mois pour réexaminer la demande.
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