Date:
20070921
Docket: A-32-07
Citation: 2007
FCA 301
CORAM: DESJARDINS
J.A.
DÉCARY
J.A.
RYER J.A.
BETWEEN:
RAYMOND PATRY
Applicant
and
THE ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT OF THE
COURT
RYER J.A.
[1]
This
is an application for judicial review of a decision of Umpire Haddad (CUB
65132A) dated November 21, 2006, under the Employment Insurance Act S.C.
1996 c. 23 (the Act) dismissing the Applicant’s appeal from a decision of the
Board of Referees, dated December 7, 2004, which upheld a decision of the Canada
Employment Insurance Commission (the Commission) dated May 3, 2004.
[2]
The
Applicant applied for benefits following his suspension, in October 2001, from
his employment with the Canada Customs and Revenue Agency (as it was then
known). Approximately six weeks after his suspension the Applicant was
reinstated and returned to work until near the end of July of 2002. While
working he also collected benefits.
[3]
During
the period in which the Applicant was collecting benefits, he filed 18 reports
with the Commission in which he specified that he was not working and had no
earnings. As a result of these reports and having determined that the Applicant
had actually earned $27, 971.61 during this period, the Commission, by letter
dated May 3, 2004, notified the Applicant that he was required to repay benefits
in the amount of $14,145 that had been overpaid. In addition, he was assessed a
penalty under subsection 38(1) of the Act, in the amount of $7,434, for having
knowingly made false representations. Finally, the Commission issued a notice
of violation pursuant to subsection 7.1(4) of the Act.
[4]
The
Applicant appealed the decision of the Commission to the Board of Referees.
While the Applicant did not appear at the hearing of his appeal, after having
requested and received an adjournment of the initial hearing date, he provided
the Board of Referees with some 63 pages of materials, including medical
reports and photographs, which related to a motor vehicle accident that had
occurred in late 1996, and submissions to the effect that the injuries that he
has sustained in the accident affected his ability to correctly record his
earnings in the reports that were filed with the Commission. In addition, the
Applicant requested that the hearing be tape recorded and that a copy of the
tape be provided to him.
[5]
The
Board of Referees upheld the determinations of the Commission that the
Applicant had earnings in his benefit period, those earnings led to an overpayment
of benefits and a repayment of the overpayment of benefits was required. They
also held that the imposition of the penalty under subsection 38(1) of the Act
was appropriate, as was the issuance by the Commission of a notice of violation,
pursuant to subsection 7.1(4) of the Act, that classified the violation as a
“very serious violation”, in accordance with subparagraph 7.1(5)(a)(iii) of the
Act. With respect to the penalty, the Board of Referees gave consideration to
the medical evidence that had been submitted to them by the Applicant and
stated in their reasons:
The Board
reviewed in detail this most lengthy file and found no compelling evidence that
post traumatic syndrome from his accident caused Mr. Patry to create 18 false
statements.
[6]
The
Applicant appealed the decision of the Board of Referees to the Umpire and once
again having requested and received an adjournment of the initial hearing date,
did not appear at the scheduled hearing of that appeal.
[7]
The
Umpire confirmed the decision of the Board of Referees, holding that the Board
of Referees correctly determined that the Applicant had derived earnings in the
benefit period that mandated the repayment of the overpayment of benefits in
the amount of $14,145.
[8]
With
respect to the penalty under subsection 38(1) of the Act, the Umpire concluded
that the Board of Referees had made no specific findings that would have
established that the Applicant had knowingly made false statements. The Umpire
then went on to make these findings and to give the decision on that point that
the Board of Referees should have given, citing subsection 117(b) of the Act as
his authority for so doing. In that respect, the Umpire concluded that the
Applicant had made 18 incorrect reports with respect to his earnings in the
benefit period and that having received a request from the Commission for
clarification of these errors, he failed to clarify or explain them. The Umpire
decided that the failure of the Applicant to explain away the errors enabled
him to draw the inference that the representations or statements with respect
to earnings in the benefit period were false statements that were knowingly
made. The Umpire then concluded that the penalty of $7,434 that was imposed by
the Commission, while substantial, was justified.
[9]
With
respect to the notice of violation, the Umpire concluded that its issuance
pursuant to subsection 7.1(4) of the Act was a mandatory consequence of the
imposition of the penalty under subsection 38(1) of the Act.
[10]
Finally,
the Umpire concluded that since there was no statutory requirement that a tape
recording of the proceedings at the hearing of the Board of Referees must be
provided to the Applicant, the failure of the Board or Referees to provide a
tape recording did not invalidate the proceedings before, or the decisions of,
the Board of Referees.
[11]
Having
reviewed the submissions made by the Applicant, I am not persuaded that the
Umpire made any error in reaching his conclusions that would warrant
intervention by the Court. However, the conclusion of the Umpire with respect
to the imposition of the penalty under subsection 38(1) of the Act appeared to
be of particular concern to the Applicant and requires specific consideration. Contrary
to the Applicant’s contention, in my view the portion of the reasons of the
Board of Referees that is reproduced above, in paragraph 5, establishes that
they did consider the medical evidence that was provided to them by the
Applicant and that such evidence did not persuade them that the false
statements were attributable to the medical condition of the Applicant that was
described in that evidence.
[12]
For
the foregoing reasons, I would dismiss this application for judicial review,
without costs in the circumstances.
"C.
Michael Ryer"
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A-32-07
STYLE OF CAUSE: Raymond
Patry v. AGC
PLACE OF
HEARING: Vancouver, British Columbia
DATE OF
HEARING: September
19, 2007
REASONS FOR JUDGMENT BY: RYER
J.A.
CONCURRED IN BY: DESJARDINS J.A.
DÉCARY J.A.
DATED: September 21, 2007
APPEARANCES:
Raymond Patry FOR
THE APPLICANT
Cindy W. Mah FOR
THE RESPONDENT
SOLICITORS
OF RECORD:
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John H. Sims,
Q.C.
Deputy Attorney
General of Canada
Ottawa, Ontario
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FOR THE RESPONDENT
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