Date: 20050217
Docket: A-316-04
Citation: 2005 FCA 70
Toronto, Ontario, February 17th, 2005
CORAM: ROTHSTEIN J. A.
SEXTON J.A.
EVANS J. A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Appellant
and
MARTIN JAMIESON
Respondent
Heard at Toronto, Ontario, on February 17, 2005.
Judgment delivered from the Bench at Toronto, Ontario on February 17, 2005.
REASONS FOR JUDGMENT OF THE COURT BY: SEXTON J.A.
Date: 20050217
Docket: A-316-04
Citation: 2005 FCA 70
Toronto, Ontario, February 17th, 2005
CORAM: ROTHSTEIN J. A.
SEXTON J.A.
EVANS J. A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Appellant
and
MARTIN JAMIESON
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario, on February 17, 2005)
SEXTON J.A.
[1] The Respondent while receiving Employment Insurance benefits was otherwise employed and earning income.
[2] The Employment Insurance Commission accordingly ordered the Respondent to repay the benefits to which the Respondent was not entitled and imposed a penalty of $ 1,935.00 based on the fact that the Respondent had made five false statements in which he reported no income to the Commission.
[3] The Board of Referees dismissed the appeal of the Respondent on the same basis.
[4] The Umpire, on appeal, from the Board of Referees found the penalty to be excessive and reduced it to $ 500.00. The Umpire treated the five false statements as one continuing violation rather than five violations.
[5] The law is clear that as long as the Commission exercises its power judicially, that is, that it has taken all relevant considerations into account and has not been influenced by improper considerations, the Umpire may not substitute his opinion for that of the Board of Referees as to the amount of the penalty. Canada v. Antonio [1998] F.C.J. No. 1518 (FCA), Canada v. Rumbolt [2000] F.C.J. No. 1968 (FCA), Canada v. McLean [2001] F.C.J. No. 176.
[6] In the present case the Umpire did not find that the Board of Referees had failed to take into consideration relevant matters nor that it had been influenced by improper considerations.
[7] In the circumstances, we are of the view that the Umpire had no jurisdiction to substitute his opinion as to the amount of the penalty for that of the Board of Referees. In the present case there were five violations, not one as found by the Umpire. Canada v. Smith [1994] F.C.J. No. 165.
[8] Accordingly, the decision of the Umpire is set aside and the decision of the Board of Referees is restored.
"J. E. Sexton"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-316-04
STYLE OF CAUSE: THE ATTORNEY GENERAL OF CANADA
Appellant
and
MARTIN JAMIESON
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: FEBRUARY 17, 2005
REASONS FOR JUDGMENT
OF THE COURT: (ROTHSTEIN, SEXTON, EVANS JJ.A.)
DELIVERED FROM THE
BENCH BY: SEXTON J.A.
APPEARANCES:
Sadian Campbell For the Appellant
Martin Jamieson For the Respondent, On His Own Behalf
SOLICITORS OF RECORD:
John H. Sims, Q.C.
Deputy Attorney General of Canada
Toronto, Ontario For the Appellant
Martin Jamieson For the Respondent, On His Own Behalf
Mississauga, Ontario
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