Date: 20100708
Dockets: A-483-09
Citation: 2010 FCA 182
CORAM: LÉTOURNEAU
J.A.
PELLETIER
J.A.
STRATAS
J.A.
BETWEEN:
ZORA S. GILL
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
STRATAS J.A.
[1]
Under the Employment
Insurance Act, S.C. 1996, c. 23 (the “Act”), claimants for employment
insurance benefits who engage in misconduct, such as filing false information
in support of a claim, face potential consequences. The Canadian Employment
Insurance Commission can assess a penalty against them; they can also be
prosecuted under the Act or the Criminal Code, R.S.C. 1985, c. C-46, and
be found guilty.
[2]
The
question in this application for judicial review is one of statutory
interpretation. When the Commission has assessed a penalty against a claimant
or where the claimant has been prosecuted and found guilty of an offence, must the
Commission also issue a “notice of violation” against the claimant? Or does the
Commission have the discretion not to issue the notice?
[3]
This
matters a great deal. The general thrust of the Act is that a claimant must
work a particular number of hours before being able to receive benefits. But
when a notice of violation has been issued against the claimant, the Act
regards the claimant as having “accumulated a violation.” Those with a
violation in the last five years must work more hours before they are able to
receive benefits. Simply put, then, the issuance of a notice of violation
imposes an additional sanction upon a claimant, over and above a penalty or a
finding of liability for an offence, by increasing the number of “qualifying
hours” that a claimant must have before being able to receive benefits. This
additional sanction can be most severe: a claimant, put out of work, might have
been able to obtain benefits but for the increase in qualifying hours.
[4]
Seven
decisions of this Court, described below, have touched upon or dealt with this
issue. Unfortunately, these cases cannot be reconciled. Foremost of these cases
is Canada (Attorney General) v. Savard, 2006 FCA 327, [2007] 2 F.C.R.
429, in which my colleague, Justice Létourneau, writing for the Court, examined
four earlier cases and attempted to resolve the issue once and for all. In Savard,
this Court ruled that the Commission does have the discretion whether or not to
issue a notice of violation. But, says the respondent, two later decisions of
this Court, dealing with the issue, conflict with Savard, and the ruling
in Savard was obiter. In light of this, the respondent says that
the issue remains unsettled. The parties agree that the issue now arises
squarely for decision in this case.
[5]
In my
view, Savard correctly states the law. Where a claimant has been
assessed a penalty or has been prosecuted and found guilty of an offence, the Commission
does have the discretion to decline to issue a notice of violation. Under
subsection 7.1(4), a claimant does not automatically accumulate a violation and
thereby bear the burden of increased qualifying hours. To work that result,
clearer statutory wording would be required.
A. The facts
(1) The applicant’s employment
[6]
The applicant
emigrated from India. He was illiterate and
without formal schooling. Soon after his arrival in Canada, he worked on farms in
the lower mainland of British
Columbia,
picking berries and vegetables. S&S Harvesting Ltd. was his employer.
(2) The applicant’s employment
insurance claim
[7]
On
November 12, 1997, after the applicant’s employment ended, he filed a claim
with the Commission for employment insurance benefits. In support of that
application, he submitted a record of employment from S&S Harvesting Ltd. The
record represented that the applicant had worked 954 insurable hours, with
$7,183.62 in insurable earnings. The applicant also made a representation
during an interview with a Commission employee, and made further
representations in 14 bi-weekly report cards submitted in support of his claim.
As will be seen below, these representations, 16 in all, were later found to be
false and misleading.
(3) The Act: sanctions
imposed for misconduct
[8]
The Act
identifies and imposes sanctions for various forms of misconduct. In Part I of
the Employment Insurance Act, S.C. 1996, c. 23, claimants who engage in
certain forms of misconduct, including the filing of false or misleading
information in support of a claim, can have certain sanctions assessed against
them:
(a)
There are
warnings or monetary sanctions: section 38 and sections 40 to 41.1. The Act
calls these “penalties.”
(b)
Another
sanction involves increasing, for a period of five years, the number of
insurable hours that a claimant needs in order to qualify for employment
insurance benefits. This sanction of increased qualifying hours is imposed in
the case of “violations” in certain circumstances: see section 7.1.
(4) The
false and misleading representations
[9]
Following an
investigation of S&S Harvesting Ltd., it was discovered that the applicant had
worked only 676 insurable hours, with $5,090.28 in insurable earnings.
[10]
As a
result of this, three things happened. First, on April 20, 2000, the Commission
rejected the applicant’s claim for employment insurance benefits, as he had not
worked the minimum 910 hours of insurable employment. He had worked only 676
insurable hours, not 954 hours. Second, the applicant
had been receiving benefits; the rejection of the applicant’s claim meant that
there was an overpayment to the applicant of $5,352. Third, in accordance
with the statutory framework of sanctions, described above, the Commission
imposed 16 penalties totalling $2,189 against the applicant for providing false
or misleading information in the 16 representations he made. It also issued a
notice of violation against him.
(5) The applicant’s appeal
[11]
The applicant
appealed to the Board of Referees. The Board of Referees confirmed that the applicant
was not entitled to employment insurance benefits. It also dismissed his appeal
against penalty but reduced the amount of the penalty to $1.00. It allowed his
appeal against the notice of violation and set it aside.
[12]
The
drastic reduction in the penalty and the setting aside the notice of violation
was prompted by new mitigating factors. The applicant was suffering a number of
ailments, including dementia. A significant penalty would have serious consequences
for his family. The Board of Referees also accepted the applicant’s evidence
concerning the reprehensible actions of his employer and the vulnerability of
the farmworkers in this employment relationship.
(6) The Commission’s
further appeal
[13]
The
Commission appealed to the Umpire. Before the Umpire, the Commission did not
challenge the existence of mitigating and humanitarian grounds and the
reduction of the penalty to $1.00. The Commission appealed only on the issue of
whether the Board of Referees could set aside the notice of violation. This
turned on whether or not a notice of violation was mandatory or automatic under
the opening words of subsection 7.1(4) of the Act, which reads as follows:
|
Violations
7.1. (4) An insured person
accumulates a violation if in any of the following circumstances the
Commission issues a notice of violation to the person:
(a) one or more penalties are imposed on the
person under section 38, 39, 41.1 or 65.1, as a result of acts or omissions
mentioned in section 38, 39 or 65.1;
(b) the person is found guilty of one or more
offences under section 135 or 136 as a result of acts or omissions mentioned
in those sections; or
(c) the person is found guilty of one or more offences under
the Criminal Code as a result of acts or omissions relating to the
application of this Act.
|
Violations
7.1. (4) Il y a violation lorsque
le prestataire se voit donner un avis de violation parce que, selon le cas :
a) il a perpétré un ou plusieurs actes
délictueux prévus à l’article 38, 39 ou 65.1 pour lesquels des pénalités lui
ont été infligées au titre de l’un ou l’autre de ces articles, ou de
l’article 41.1;
b) il a été trouvé coupable d’une ou
plusieurs infractions prévues à l’article 135 ou 136;
c)
il a été trouvé coupable d’une ou plusieurs infractions au Code criminel
pour tout acte ou omission ayant trait à l’application de la présente loi.
|
[14]
If subsection
7.1(4) makes a notice of violation mandatory or automatic whenever the
circumstances in paragraphs (a), (b), or (c) are present, then
in this case the Board of Referees had no jurisdiction to set aside the notice
of violation; the notice of violation had to issue, and upon its issuance, the
applicant accumulated a violation and bore the burden of an increase in
qualifying hours. If, on the other hand, subsection 7.1(4) makes the issuance
of a notice of violation a discretionary matter for the Commission, then the
Board of Referees did have the jurisdiction to set aside the notice of
violation. That result would have left the applicant with no violation; the
number of qualifying hours would have remain the same.
[15]
The Umpire
allowed the Commission’s appeal. The Umpire concluded that subsection 7.1(4)
makes a notice of violation mandatory or automatic, and so the Board of
Referees had no jurisdiction to set it aside. In the end result, the applicant was
to pay a nominal $1.00 penalty owing to his strained circumstances, but for the
next five years the number of hours he would need to qualify would be higher.
Under the Act, his violation was classified as “serious” and so the increase in
the number of hours was significant.
[16]
In this
Court, the applicant has applied for judicial review of the Umpire’s decision.
B. Analysis
[17]
Is
the issuance of a notice of violation under subsection 7.1(4) of the Act mandatory
and automatic? Or does the Commission have a discretion?
(1) Previous decisions
of this Court
[18]
As
mentioned above, this is not the first time that this issue has come before
this Court. Seven decisions have dealt with or have touched upon this issue. Of
these, for reasons set out below, Savard is the most significant of the
seven. Therefore, in analyzing these cases, I shall divide them into three
categories: the four cases before Savard, the Savard case, and
the two cases after Savard.
(a) The
four cases before Savard
[19]
Before Savard,
there were four decisions that touched on this issue. In each of these cases, a
fully adversarial context was not present: a benefits claimant, who was
unrepresented by counsel, was pitted against the Crown, who was represented by
counsel. In three of these cases, Geoffroy, Limosi and Piovesan
– all of which Savard later corrected – the Court dealt with this issue
very briefly and in passing, without a full examination of the statutory
framework and the purposes of the Act. Here are the four decisions:
(a) Canada (Attorney General) v.
Geoffroy,
2001 FCA 105, 272 N.R. 372. In brief, eight paragraph reasons that did not
examine the full statutory context, the Court decided that a “violation” is
automatic.
(b) Canada (Attorney General) v. Limosi, 2003 FCA 215, [2003] 4 F.C.
481. In this case, the claimant argued that he had not accumulated a
“violation” because the notice of violation had not been delivered to him. In
the course of rejecting the claimant’s argument, this Court observed that a
“violation” is automatic. This observation was made in passing and was not
necessary to the outcome of the appeal.
(c)
Canada (Attorney General) v. Szczech, 2004 FCA 366. The issue
before this Court was whether the five year period for a “violation” runs from
the date of commission of the “violation” or when the Commission issues the
notice of violation. This Court held that the period runs from the time that
the Commission issues a notice of violation. Although not explicitly stated in Szczech,
this holding would be consistent with a view that a “violation” is not
automatic but happens if and only if the Commission decides to issue a notice
of violation – i.e. the Commission has a discretion whether or not to
issue a notice of violation.
(d)
Canada (Attorney General) v.
Piovesan,
2006 FCA 245. The issue before the Court was whether the giving of a warning,
instead of the imposition of a monetary penalty, triggered an increase in the
number of qualifying hours. This Court answered in the affirmative. In the
course of its brief, five paragraph reasons, it observed (at paragraph 4) that
“a person accumulates a violation if the Commission issues a notice of
violation.”
(b) The Savard case
[20]
In Canada
(Attorney General) v. Savard, 2006 FCA 327, [2007] 2 F.C.R. 429, this Court
considered whether a notice of violation must be served on the claimant, as
opposed to merely being issued, in order for the sanction of increased
qualifying hours to be applied. This Court answered that question in the
negative.
[21]
The Court
in Savard went further. Taking advantage of the presence of opposing
parties represented by counsel, it systematically and exhaustively dealt with
the prior four cases in light of the structure of the penalty/violation
provisions of the Act. It asked itself whether the earlier jurisprudence was
“manifestly wrong” under the test in Miller v. Canada (Attorney General), 2002 FCA 370, 220 D.L.R. (4th)
149 and required correction. The Court in Savard answered that in the
affirmative – after finally receiving the benefit of full argument and full
information (at paragraph 4, per Létourneau J.A.), it concluded that Geoffrey,
Limosi and Piovesan should be corrected.
Of the five challenges
that have been initiated, I must say that this is the first in which, thanks to
Quebec Legal Aid, the claimant is represented by counsel, i.e. Mr.
Jean-Pierre Marcotte. We were therefore able to have the advantage of some
enlightenment that had been absent up to the present, in the absence of
adversarial proceedings. I have been convinced, in the light of new arguments
made to the Court and of the new documentation filed by the respondent’s
counsel [the Human Resources and Social Development Canada Digest of Benefit
Entitlement Principles, chapter 18], of the need to revisit the four other
previous decisions. I am persuaded that three of these decisions [Geoffroy,
Limosi and Piovesan], in some aspects, would not have been the
same if this enlightening additional information could have been brought to the
attention of the members of the various panels that rendered them. This is a
situation that meets the test propounded in Miller v. Canada (Attorney
General) [citation
omitted], and it is warranted to make the necessary corrections to those
decisions.
[22]
Fortuitously,
a majority of the panel in Savard – Décary, Létourneau and Nadon JJ.A. –
had first-hand knowledge of some the cases it was correcting. Décary J.A.
authored the unanimous reasons in Geoffroy and Piovesan.
Létourneau J.A. wrote the unanimous reasons in Limosi, and Décary
J.A.was part of that panel too. A majority of the panel in Savard were
revisiting their own previous decisions – assisted, for the first time on this
issue, by counsel on both sides and by new information.
[23]
Writing
for the unanimous Court, in Savard, Létourneau J.A. examined the words
of subsection 7.1(4), the relevant scheme of the Act (namely sections 7.1, 38,
40, 41.1, 125 and 135), and the purpose of the Act. This was an approach to
interpretation consistent with that prescribed by the Supreme Court of Canada
in Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 59, 2002
SCC 42 at paragraphs 26 and 27. As a result of its examination, this Court
concluded that indeed the Commission does have the discretion to decide whether
or not to issue a notice of violation. Put another way, the Commission may
issue a notice of violation as an additional sanction, but it is not mandatory.
The Court put it this way in Savard (at paragraph 25):
If the act or omission
is serious enough, the Commission may decide it is appropriate to impose an
additional sanction and find that there has been a violation within the meaning
of section 7.1. This sanction takes the form of the issuance of a notice of
violation under subsection 7.1(4).
Later in its reasons, the Court added (at paragraphs 37-38):
The Commission has
discretion to impose sanctions when one or more of the acts or omissions set
out in subsection 38(1) have been committed. It also has the discretion, within
the limits provided by the Act, to choose the deterrent measure(s) appropriate
in the circumstances, should more than one punitive measure prove necessary to
fulfil the purposes of the Act. Instead of imposing a monetary penalty, it may
choose, as section 41.1 allows it to do, to give the claimant a warning, which may
be followed by a notice of violation as defined in section 7.1
…
On the other hand, if
the circumstances of the perpetration of the act or omission require, in the
Commission’s opinion, more than a monetary sanction, the Commission may
reinforce or augment the monetary sanction by issuing a notice of violation
pursuant to subsection 7.1(4). The violation then arises as of the day when
the notice is issued and the date of this violation is the date on which the
notice is issued. [emphasis added]
(c) The cases after Savard
[24]
Immediately
after Savard, this Court decided two more cases and made comments
consistent with Geoffroy, Limosi and Piovesan, and
inconsistent with Savard. These cases did not mention Savard; Savard
was not cited to the Court in argument. Just as in Geoffroy, Limosi
and Piovesan, the discussion of the issue in these two cases was brief,
in passing, and without a full examination of the statutory framework and the
purposes of the Act. Just as in Geoffroy, Limosi and Piovesan,
a fully adversarial context was not present: a benefits claimant, who was
unrepresented by counsel, faced the Crown, who was represented by counsel. These
two post-Savard cases are:
(a)
Canada (Attorney General) v. Kaur, 2007 FCA 287. The issue was
whether the Umpire could reverse the Commission’s decision to impose a penalty,
issue a warning instead, and cancel a notice of violation. This Court held that
the Umpire could not freely substitute his decision for that of the Commission.
In the course of its reasons, at paragraph 34, this Court observed in passing
that under subsection 7.1(1) of the Act, “a notice of violation follows when a
penalty is imposed under subsection 7.1(4) of the Act” and “neither the
Commission nor the Umpire has any discretion in this regard.” The benefits
claimant was unrepresented by counsel.
(b) Patry
v. Canada (Attorney General), 2007 FCA 301. In the course
of determining a judicial review from a decision of the Umpire under the Act,
the Court observed in passing (at paragraph 9) that a “notice of violation…was
a mandatory consequence of the imposition of the penalty under subsection 38(1)
of the Act.” Whether or not the notice of violation was mandatory does not
appear to have been the focus of the applicant’s judicial review proceeding.
(2) The parties’
submissions in this case
[25]
The
applicant submitted that this Court’s decision in Savard is the
governing authority, and the four decisions before it and the two decisions
after it should not be followed. In his view, subsection 7.1(4) of the Act, properly
interpreted, gives the Commission the discretion not to issue a notice of
violation.
[26]
The
respondent Crown submitted that this Court’s comments in Savard
concerning this issue were obiter. As a result, this Court should
revisit the issues in Savard. In its view, the Commission has no
discretion whether or not to issue a notice of violation. This result, it says
in its memorandum, is consistent with the Act’s purpose: “to deter abuse of the
employment insurance scheme by imposing an additional sanction on claimants who
attempt to defraud the system.” The respondent did not refer the Court to any
material, such as Hansard or legislative history, which might evidence
the purpose it posited. Such material has been found to be useful in
interpreting social benefits legislation: Finlay v. Canada (Minister of Finance), [1993] 1 S.C.R. 1080 at
pages 1105 to 1113.
(3) Is Savard obiter?
[27]
It is true
that the issue in Savard, narrowly construed, was whether a notice of
violation must be served on the claimant in order for the sanction of increased
qualifying hours to be applied. Its finding, that service is not required, did
not require the Court to determine whether issuance of a notice of violation is
mandatory or automatic. I agree with the respondent that that determination in Savard
was not legally necessary for its decision. In that most strict legal sense, it
was obiter. However, I do not agree with the respondent that this
Court’s comments in Savard should be disregarded. Far from it.
[28]
The
doctrine of “obiter dictum” used to hold sway in Anglo-Canadian
jurisprudence. Under that doctrine, later courts were not bound, and indeed
could ignore, rulings and observations that, strictly speaking, were
unnecessary for the case to be decided. But, in recent decades, this doctrine
has held much less sway. For example, in Hedley Byrne & Co. Ltd. v.
Heller & Partners Ltd., [1964] A.C. 465, [1963] 2 All E.R. 575 (H.L.),
the plaintiff alleged that the defendant bank was negligent when it provided an
opinion of creditworthiness. But the bank escaped liability because of an
exculpatory clause. Strictly speaking, the House of Lords did not have to rule
on whether negligent misstatement could give rise to liability, but did so, and
confirmed that liability could indeed arise. Ever since that time,
Anglo-Canadian courts have applied that ruling, a ruling that was indisputably obiter.
[29]
Today,
many decisions of our Supreme Court advance propositions that, strictly
speaking, are not central to the disposition of the case, yet those
propositions often are cited with appropriate force in later cases.
[30]
The real
question is the extent to which a later court should consider itself bound by
earlier obiter. Some obiter is purely gratuitous in the
circumstances and is not grounded on the full submissions of opposing parties. However,
some obiter is prompted by circumstances of strong practicality and
justice, and is informed by full submissions from adverse parties represented
by counsel.
[31]
In my
view, we should consider ourselves bound by the obiter determination in Savard.
That Court was prompted by strong practicality and justice and had the benefit,
a rare one in this context, of full submissions by adverse parties who were
represented. For the first time, it was “in a position to describe finally, and
with…some coherence, the [employment insurance] system adopted by Parliament
and how it works” (at paragraph 18). This enabled it to examine previous case
law that was not informed by adversarial submissions advanced by opposing
lawyers and to correct that case law if it turned out to be “manifestly wrong”:
Miller, supra at paragraph 10. Letting this opportunity slip by
might have left the shortcomings of earlier jurisprudence to continue to be
applied in future cases, with detrimental results. Further, as noted above, a
majority of the panel in Savard had sat on panels in the earlier cases
and felt the need to review and correct its previous decisions. In my view, in
these circumstances, Savard truly determined this matter for all
practical intents and purposes.
(4) Was Savard correctly decided?
[32]
The
respondent Crown argued that Savard was incorrectly decided and should
not be followed. To assess this submission, I examined the reasoning and result
in Savard in light of the language of subsection 7.1(4), the scheme of
the Act, and the purpose of the Act.
[33]
In my view
Savard is correct for the reasons it offered. Therefore, I adopt the
reasoning and result in Savard and apply it to this case. In my view,
the Commission does have discretion under subsection 7.1(4) of the Act to issue
a notice of violation or not to issue a notice of violation, depending on the
circumstances.
[34]
In
addition to the reasoning and result in Savard, and with the benefit of
the full submissions that the Court received from the parties before us who were
both represented, I offer four further reasons in support of my conclusion that
Savard was correctly decided and that the Commission has this discretion
under subsection 7.1(4).
I
[35]
Parliament
could have drafted the legislation to require that the Commission must issue a
notice of violation upon the happening of any circumstance described in section
7.1. It did not do so. Subsection 7.1(4) states that a person accumulates a
violation “if in any of the following circumstances the Commission
issues a notice of violation to the person” [emphasis added].
II
[36]
Interpreting
subsection 7.1(4) as imposing a mandatory or automatic sanction would sit in
startling contrast with the rest of this administrative regime. This is an administrative
regime that, at every step, bestows administrative discretion of the widest
sort to the Commission. The Commission has the discretion whether to proceed
with a penal process or an administrative process: section 40 and subsection
135(2) of the Act. If a penal process is chosen, the Commission has the
discretion to prosecute under subsection 135(1) of the Act or under the Criminal
Code. If an administrative process is chosen, the Commission has the
discretion under section 41.1 of the Act to impose a monetary sanction, or just
a warning. If a pecuniary sanction is chosen, the Commission has the discretion
under subsection 38 concerning the amount, up to the maximum under the Act. In
the midst of this sea of discretion, did Parliament really intend to create an
anomalous island of mandatory and automatic sanction, and a tough sanction at
that? In my view, given the framework of this administrative regime, only the
clearest of words would make that so.
III
[37]
The
overall purpose of the Act is “to create a social insurance plan to compensate
unemployed workers for loss of income from their employment and to provide them
with economic and social security for a time, thus assisting them in returning
to the labour market”: Tétreault-Gadoury v. Canada (Employment and
Immigration Commission), [1991] 2 S.C.R. 22 at page 41. In the case of
social benefits legislation such as this, “any doubt arising from the
difficulties of the language should be resolved in favour of the claimant”: Abrahams
v. Attorney General of Canada, [1983] 1 S.C.R. 2 at page 10 and see also Finlay
v. Canada (Minister of Finance), supra at page 1113 to
1115. To the extent that subsection 7.1(4) is ambiguous on the issue of whether
the Commission has the discretion not to issue a notice of violation, that
ambiguity should be resolved in favour of the claimant.
[38]
In this
regard, as noted above, the respondent Crown has asserted that the purpose of
section 7.1 is “to deter abuse of the employment insurance scheme by imposing
an additional sanction on claimants who attempt to defraud the system.” I agree
that that is the purpose of section 7.1. But that is the purpose that underlies
the rest of the sanctioning regime in the Act too. As we have seen, the sanctioning
regime in the Act is suffused with multiple administrative discretions. The
purpose that the Crown posits for section 7.1 does not necessarily lead to the
conclusion that when one of the circumstances in section 7.1(4) is present, a
notice of violation is, unlike all of the other sanctions in this sanctioning
regime, automatic.
IV
[39]
Interpretations
that give rise to unexpectedly harsh or inequitable consequences should be
avoided unless clearly required by the wording, structure and purposes of the
Act: Re Rizzo & Rizzo Shoes Ltd., [1998] 1 S.C.R. 27 at paragraph 27.
In a scholarly and helpful article, “Les sanctions administratives de
l’assurance-emploi: entre solidarité, assurance et répression” (2009) 50 Les
Cahiers de Droit 825, Professor Pierre Issalys addresses the harshness of
interpreting subsection 7.1(4) as imposing a mandatory “sur-sanction,” a severe
sanction on top of another sanction.
[40]
In my
view, the Crown’s interpretation of subsection 7.1(4) would impose an unexpectedly
harsh or inequitable consequence. Suppose that, as in the case at bar, the
Commission has levied the smallest of penalties against a claimant ($1.00) in
response to mitigating circumstances and out of humanitarian concern. The
Crown’s interpretation of subsection 7.1(4) would require the claimant to
accumulate a greater number of hours before qualifying for benefits and for
many that might be an extremely tough sanction. Such an interpretation would
have a particularly severe impact upon those who must claim benefits periodically
due to the nature of their employment, such as seasonal workers. In my view, to
effect such a result, clearer language in subsection 7.1(4) is necessary.
(5) Applying the
conclusions to the facts of this case
[41]
It follows
from the foregoing that the Commission did have the discretion under subsection
7.1(4) of the Act whether or not to issue a notice of violation. A notice of
violation is not mandatory or automatic under subsection 7.1(4). To the extent
that this Court’s decisions in Geoffroy, Limosi, Piovesan,
Kaur and Patry suggest otherwise, they should not be followed.
[42]
I conclude
that the Board of Referees did have the jurisdiction to set aside the notice of
violation. The Umpire erred in holding to the contrary.
C. Proposed disposition
[43]
Therefore,
I would grant the application for judicial review, quash the decision of the
Umpire, and restore the decision of the Board of Referees.
“David Stratas”
“I
agree
Gilles Létourneau J.A.”
“I agree
J.D. Denis
Pelletier J.A.”
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