Lanuzo v. Canada (Attorney General), 2005 FCA 324

Date: 20051005

Docket: A-2-05

Citation: 2005 FCA 324

CORAM:         DÉCARY J.A.

LÉTOURNEAU J.A.

PELLETIER J.A.

BETWEEN:

ANGELITO LANUZO

Applicant

and

THE ATTORNEY GENERAL OF CANADA

Respondent

Heard at Montréal, Quebec, on October 5, 2005.

Judgment delivered from the Bench at Montréal, Quebec, on October 5, 2005.

REASONS FOR JUDGMENT OF THE COURT BY:                               PELLETIER J.A.

Date: 20051005

Docket: A-2-05

Citation: 2005 FCA 324

CORAM:         DÉCARY J.A.

LÉTOURNEAU J.A.

PELLETIER J.A.

BETWEEN:

ANGELITO LANUZO

Applicant

and

THE ATTORNEY GENERAL OF CANADA

Respondent

REASONS FOR JUDGMENT OF THE COURT

(Delivered from the Bench at Montréal, Quebec, on October 5, 2005)

PELLETIER J.A.

[1]     This is a case in which a mistake by the Commission resulted in an overpayment to the applicant, which the Commission has now recovered. The applicant objects to this but, since he received the money, and since he was not entitled to it, the Commission's mistake does not excuse him from having to repay it.

[2]     In his application for benefits, the applicant accurately disclosed that his last day of work was October 1, 2002 and that in his last week of work, he earned $258 by working 16 hours. However, the Record of Employment prepared by the employer showed the applicant as having last worked on September 27, 2002. A benefit period was established for him commencing the week of September 29, 2002. For reasons which have not been explained, the Commission did not take the applicant's declaration of hours worked and amounts earned in the first week of the benefit period into account in calculating his benefit with the result that he was paid full benefits for that week.

[3]     The Commission subsequently became aware of its error and advised the applicant of the overpayment, indicating that it would seek recovery. The applicant took the position that the hours worked and amounts earned were included in the hours and earnings shown in the Record of Employment.    In light of information received from the employer, the Commission rejected this argument. In fact, the employer issued a supplemental Record of Employment showing that the earnings and hours worked during the week of September 29, 2002 were in addition to the hours and earnings shown in the original Record of Employment.

[4]     The applicant unsuccessfully appealed the Commission's decision to the Board of Referees, and then to the Umpire. The Umpire's reasons suggest that he believed that the applicant had failed to disclose the hours and earnings which are in question but it is clear that the applicant did so. The Umpire treated the case as one of innocent mistake on the applicant's part in relying upon the Record of Employment and upheld the Board of Referees' decision.

[5]     The Umpire's misapprehension as to the applicant's disclosure does not affect his conclusion that the applicant's hours and earnings for September 30 and October 1 were not included in the original Record of Employment, and that the amount of his benefits for that week should have been reduced to account for these earnings. This conclusion of fact is not only reasonable; on the basis of the evidence in the record, it is correct. We are therefore not in a position to intervene.

[6]     The application for judicial review will be dismissed but without costs.

"J.D. Denis Pelletier"