Date: 20061114
Docket: A-463-05
Citation:
2006 FCA 371
CORAM: LINDEN J.A.
NOËL J.A.
EVANS J.A.
BETWEEN:
THE
ATTORNEY GENERAL OF CANADA
Applicant
and
DANNY
MAXWELL
Respondent
Heard at Halifax,
Nova Scotia, on November 14, 2006.
Judgment delivered from the Bench at Halifax, Nova Scotia, on November 14, 2006.
REASONS
FOR JUDGMENT OF THE COURT BY: NOËL
J.A.
Date:
20061114
Docket: A-463-05
Citation:
2006 FCA 371
CORAM: LINDEN J.A.
NOËL
J.A.
EVANS
J.A.
BETWEEN:
THE ATTORNEY
GENERAL OF CANADA
Applicant
and
DANNY MAXWELL
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Halifax, Nova Scotia, on November 14, 2006)
NOËL J.A.
[1]
This
is an application for judicial review of a decision of an Umpire under the Employment
Insurance Act, S.C. 1996, c.23 (the “Act”) allowing in part the respondent’s
appeal from an earlier decision of the Board of Referees.
[2]
In
the case at bar, a warning was issued to the respondent instead of the
imposition of a monetary penalty as a result of a false representation made by
the respondent.
[3]
Although
this issue was not addressed by the Board of Referees, the Umpire queried whether
such a warning could result in the accumulation of a violation pursuant to
paragraph 7.1 (4)(a):
|
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 missions mentioned in section 38, 39 or 65.1;
…
|
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;
…
|
[4]
The authority
to issue a warning rather than imposing a penalty is provided in section 41.1(1):
|
41.1 (1) The Commission may issue a
warning instead of setting the amount of a penalty for an act or omission
under subsection 38(2) or 39(2).
|
41.1(1)
La Commission peut, en guise de pénalité pouvant être infligée au titre de
l’article 38 ou 39, donner un avertissement à la personne qui a perpétré un
acte délictueux.
|
[5]
The
Umpire held that a person does not ”accumulate[s] a violation” within the
meaning of paragraph 7.1(4)(a) as a result of the issuance of a notice of
warning under section 41.1(1). According to the Umpire, only a monetary penalty
can trigger the application of that paragraph and result in the accumulation of
a violation.
[6]
The
applicant maintains that the Umpire erred in coming to this conclusion.
Properly construed, the issuance of a notice of warning amounts to the
imposition of a penalty for purposes of paragraph 7.1(4)(a) and must be treated
as such.
[7]
In
a recent decision (Attorney General of Canada v. Piovesan 2006
F.C.A. 245) (Piovesan), this Court acknowledged that paragraph 7.1(4)(a)
was poorly drafted, but held that the reference to section 41.1 in that
provision led to the inescapable conclusion that a warning is to be treated as
a penalty.
[8]
Decary
J.A. writing for the Court said at paragraph 4:
4 …Section 41.1 empowers the
Commission to issue a warning instead of setting the amount of a penalty and
subparagraph 7.1(4)(a) states that a person accumulates a violation if the
Commission issues a notice of violation to a person where a penalty is imposed
under, among other, section 41.1. Paragraph 7.1(4)(a) is perhaps poorly drafted
but interpreted in context it can only mean that a warning is a penalty for its
purposes, albeit not a monetary penalty (see Canada (A.G.) v. Geoffroy,
[2001] F.C.J. No. 545, 2001 FCA 105; Canada (A.G.) v. Gauley,
[2002] F.C.J. No. 815, 2002 FCA 219 at paragraph 11 and CUB 58488).
[9]
In
our view, the reasoning in Piovesan is dispositive of the issue raised
in this application.
[10]
The
application for judicial review will accordingly be allowed, the decision of
the Umpire will be set aside and the matter will be referred back to the Chief
Umpire or his delegate for redetermination on the basis that the appeal from
the Board of Referees’ decision must be dismissed in its entirety. No costs
were sought.
"Marc
Noël"
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-463-05
(APPEAL FROM A JUDGMENT OR ORDER OF THE
(See comment in left margin) DATED (DATE), DOCKET NO. (DOCKET NUMBER)) if
applicable
STYLE OF CAUSE: The
Attorney General of Canada v.
Danny Maxwell
PLACE OF HEARING: Halifax, Nova Scotia
DATE OF HEARING: November 14, 2006
REASONS FOR JUDGMENT OF THE COURT BY: Linden
J.A.
Noël J.A.
Evans
J.A.
DELIVERED FROM THE BENCH BY: Noël J.A.
APPEARANCES:
|
Danny Maxwell
|
FOR THE APPLICANT
|
|
Sandra
Doucette
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
|
Self-represented
|
FOR THE
APPLICANT
|
|
John H. Sims,
Q.C.
|
FOR THE RESPONDENT
|
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