Date:
20081125
Docket: A-231-08
Citation: 2008 FCA 365
CORAM: RICHARD
C.J.
EVANS
J.A.
SHARLOW
J.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
and
KARI STEVEN LYLANDER
Respondent
REASONS FOR JUDGMENT
EVANS J.A.
[1]
This is an
application for judicial review by the Attorney General of Canada to set aside
a decision by Umpire Goulard (CUB 70206) who had allowed an appeal by Kari
Steven Lylander from a decision of a Board of Referees, dated May 30, 2007.
[2]
In that
decision, the Board had dismissed Mr Lylander’s appeal from a decision by the
Canada Employment Insurance Commission that he was not entitled to receive
employment insurance benefits paid to him while in prison during the weeks of October
3-7, 2005, and October 14-December 8, 2005. The Commission requires Mr Lylander
to repay the overpayments of approximately $1,600, but without a penalty.
[3]
The following
provisions of the Employment Insurance Act, S.C. 1996, c. 23, are
relevant to this proceeding.
|
37.
Except as may otherwise be prescribed, a claimant is not entitled to receive
benefits for any period during which the claimant
(a)
is an inmate of a prison or similar institution; or
…
43.
A claimant is liable to repay an amount paid by the Commission to the
claimant as benefits
…
(b)
to which the claimant is not entitled.
|
37. Sauf dans les cas prévus par règlement, le prestataire n’est pas
admissible au bénéfice des prestations pour toute période pendant laquelle il
est :
a) soit
détenu dans une prison ou un établissement semblable;
[…]
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.
|
[4]
The Commission
renewed Mr Lylander’s claim for employment insurance benefits, effective August
1, 2005, and deposited them directly into his bank account, as he had
requested. Until his incarceration, Mr Lylander filed his weekly reports to the
Commission by telephone by using a Temporary Access Code (“TAC”).
[5]
The Commission
continued to deposit the benefits in Mr Lylander’s account after he had been incarcerated,
although he states that he telephoned the Commission and advised an official
that he was in prison. The Commission says that it has no record of such a conversation.
[6]
Mr Lylander’s
evidence before the Board of Referees was that he had not filed weekly reports
while in prison and that, when he was released, he discovered that his bank
account was empty. He surmised that his girlfriend, with whom he had been
living before his arrest, may have obtained his TAC from his wallet (which, he
stated, he was subsequently unable to find), filed weekly reports in his name
by telephone, and withdrawn the funds from his account. He stated at one time
that he had given her access to this account so that she could buy necessities for
their baby, but denied that he had given anyone his TAC or authorized the
filing of reports on his behalf while he was in prison.
[7]
In its reasons for
decision, the Board found that Mr Lylander had “supplied the means for the
alleged fraud to be committed by not protecting his identity” and that if a
fraud had occurred “the means to defraud or apply for the benefits would have
had to come from the Appellant, directly or indirectly.” The Board also noted
that Mr Lylander stated that he had given a third party access to the bank
account in which the Commission had deposited his benefits. On the basis of
these considerations, the Board decided that Mr Lylander was not entitled to
the benefits while he was in prison, and dismissed his appeal.
[8]
On appeal, Umpire
Goulard found that there was no evidence that Mr Lylander had provided his TAC
to his girlfriend. The Umpire relied on Fournier v. Canada (Human Resources Development) 2002 FCA 138, for the proposition that a
person is not liable to repay benefits which were obtained fraudulently by
another person without the knowledge or consent of the claimant. He held that
the facts of the present case were “analogous” to those in Fournier and
allowed Mr Lylander’s appeal.
[9]
Umpire Goulard
concluded his reasons for decision by stating:
The evidence established
that the claimant had not filed his reports and had not received his benefits
for the periods relevant to the appeal. The benefits had been obtained
fraudulently by a third party without the claimant’s knowledge and consent. In
accordance with the Federal Court of Appeal decision in Fournier (supra),
he could not be responsible to reimburse these benefits.
[10]
I agree with the
Umpire that the Board of Referees’ decision cannot stand, although not for the
reasons that he gave. In my view, the problem with the Board’s reasons is that
they do not make it clear whether the Board found as a fact that the benefits
were obtained fraudulently by a third party and, if they were, whether it was with
Mr Lylander’s knowledge and consent.
[11]
The Board’s statements
that Mr Lylander provided the means, indirectly or directly, for the third
party’s fraud by not protecting his identity is not sufficiently responsive to
the question which Fournier requires to be answered: namely, did a third
party fraudulently cause the Commission to make the overpayments and, if so,
was the fraud committed with Mr Lylander’s knowledge and consent?
[12]
In my opinion, the
Umpire, too, was in error in making his own finding of fact that Mr Lylander
was the innocent victim of fraud, even though the Umpire had not shown that the
Board had made findings of fact that were erroneous and made in a perverse or
capricious manner or without regard to the material before it: see Employment
Insurance Act, paragraph 115(2)(c). In the employment insurance
appeal system, boards of referees are the primary finders of fact. For Umpires
to make independent factual findings, absent an unreasonable finding by a board,
is incompatible with their limited role with respect to the facts.
[13]
Because he was
satisfied that Mr Lylander was the innocent victim of fraud, the Umpire allowed
the appeal from the Board of Referees, set aside its decision, and allowed the
appeal from the Commission’s decision. In my view, the Umpire should have
allowed the appeal on the ground that the Board failed to make findings of fact
as to whether a third party fraudulently caused the Commission to make the
overpayments and, if so, whether the fraud was committed with Mr Lylander’s
knowledge and consent. Consequently, having allowed the appeal, the Umpire
should have remitted the matter for determination by a differently constituted
board of referees.
[14]
For these reasons, I
would allow the Attorney General’s application for judicial review, set aside
the Umpire’s decision, and refer the matter to the Chief Umpire or his Designate
to set aside the board of referees’ decision and remit the matter to a
differently constituted board of referees for determination in accordance with
these reasons.
“John M. Evans”
“I agree
J. Richard C.J.”
“I agree
K.Sharlow J.A.”
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