Date:
20071017
Docket: A-369-06
Citation: 2007 FCA 328
CORAM: LÉTOURNEAU
J.A.
PELLETIER
J.A.
TRUDEL
J.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
and
RONNIE RENAUD
Respondent
REASONS FOR JUDGMENT
LÉTOURNEAU J.A.
[1]
This is an
application for judicial review challenging a decision by the Umpire
(CUB 64629A) dated June 19, 2006. In my view, this application for
judicial review should be allowed for the following reasons.
RELEVANT FACTS
[2]
The
respondent was present at the hearing but did not file a written memorandum.
Nonetheless, we allowed him to make submissions. He performed this task well.
[3]
It is not
necessary to repeat in detail the facts and procedural incidents in this case.
Suffice it to say that the respondent filed two separate applications for
employment insurance benefits. The first covered the period beginning September
15, 2002, and ending May 10, 2003; the second began on September 28, 2003.
Although separate for purposes of assessing entitlement to the benefits and
determining the amount of the benefits, the two applications for benefits were
consolidated, at the respondent’s request, for the appeal hearing before the
Board of Referees. The following facts gave rise to the respondent’s appeal.
[4]
The
respondent’s employment was seasonal, which explains why the two applications
for benefits were filed at roughly the same time of year in 2002 and 2003. In
April 2004, the Employment Insurance Commission (Commission) learned that the
respondent was the director of two companies, the Poissonnerie des Iles and the
Homards du Cap des Iles. He was the directing mind of both until his retirement
in the fall of 2003.
[5]
Once the
Commission became aware of this fact, which the respondent had failed to
disclose, the issue of whether he was unemployed and available for work arose.
The issue applied to both benefit periods.
[6]
The
Commission informed the respondent that was not entitled to the benefits he had
received beginning September 15, 2002, because, in its view, he was neither
unemployed nor available for work. This conclusion was based on the fact that
the respondent had been occupied full‑time managing his companies and had
taken profits from them.
[7]
The
Commission also imposed a penalty of $7,434 for the first benefit period,
claiming that the respondent had knowingly filed seventeen false statements
about his involvement in managing the companies. As permitted by the Employment
Insurance Act, S.C. 1996, c. 23 (Act), the Commission doubled this penalty
further to a notice of very serious violation.
BOARD OF REFEREES’ HEARING
[8]
At the
Board of Referees’ hearing on January 18, 2005, the respondent submitted
evidence, as mentioned earlier, that he had retired as director of the
companies in the fall of 2003. This is set out in the two affidavits dated
January 17, 2005, at pages 330 and 331, volume 2 of the respondent’s record.
One of the deponents replaced the respondent as the head of Poissonnerie des
Iles Renaud, the other is the respondent’s brother. The latter confirmed that
his brother had been replaced as director of Homards du Cap des Iles and that
he was no longer employed by the company.
[9]
In its
decision of January 18, 2005, the Board of Referees concluded that the
respondent was unemployed for the two periods in question. It therefore allowed
the respondent’s appeal of the Commission’s decision.
APPEAL TO UMPIRE
[10]
The
Commission appealed the Board of Referees’ decision. However, before the
Umpire, the Commission withdrew the appeal dealing with the second benefit
period established on September 28, 2003. Accordingly, only the first benefit
period remained at issue. The Umpire therefore had to determine whether the
Board of Referees had erred in finding that the respondent met the eligibility
criteria for benefits, as set out in the Act, for the period beginning
September 15, 2002.
APPLICANT’S SUBMISSIONS
[11]
Counsel
for the applicant submits that the Umpire should have intervened. She argues
that the Board of Referees accepted facts favourable to the respondent that
occurred subsequent to the period in dispute and that only applied to the
second benefit period, particularly the fact that the respondent had retired as
director of the companies. She also alleges that both the Board of Referees and
the Umpire, who confirmed the Board’s decision, failed to consider relevant
evidence about the only period then at issue.
DECISION
[12]
There is
no doubt that the submissions of the Commission are correct.
[13]
Although
the two benefit periods were consolidated for purposes of the hearing before
the Board of Referees, the Board had to determine whether the respondent was
unemployed and available for work for each of the periods in question. It had
to consider the facts and circumstances specific to each period. It could not
assess the two periods as a whole because, as the evidence shows in this case,
conditions and circumstances can change.
[14]
It is
clear from the Board of Referees’ reasons that it spent some time on the facts
and circumstances surrounding the second benefit period to make a determination
that it applied indiscriminately to the first period. The Board did this
without analyzing the facts and the evidence regarding the first benefit period
and the respondent’s involvement during that period in the day-to-day
management and development of the companies he had founded. The evidence from
the respondent’s statements established that he was the director of the
companies, [TRANSLATION] “the president with signing power for
various documents” and that he negotiated contracts for loans and premises: see
the respondent’s statutory declaration, respondent’s record, volume 1, page 18.
The Board of Referees mentioned this evidence but did not consider or analyze
it when making its decision.
[15]
The
following passages from the Board of Referees’ decision clearly illustrate the
Board’s approach and the emphasis it put on the second benefit period:
[TRANSLATION]
Mr. Renaud maintained that the
management company (Aéroculture Renaud) never took any of his time. In the
summer of 2003, Pierre Sénécal was hired to replace Mr. Renaud in his
duties (see affidavit from Mr. Sénécal). Beginning in the fall of 2003 and
after that, the claimant performed only isolated tasks when required and these
did not affect his availability (see affidavit from Danis Renaud).
[Emphasis
added.]
(a)
the time devoted to the company. In this case,
Mr. Renaud claims to spend approximately 75 hours a week (see Exhibit 2-1)
during the high season but only residual time at other times. He also
explained his withdrawal from the family companies as of 2003.
(b)
the nature and amount of capital and other
resources invested. Both the family companies and the creation of his new
company are serious projects that the claimant wanted to succeed. However,
effective 2003, Mr. Renaud no longer really had any commitment toward Homard
des Iles and La Poissonnerie des Iles Renaud. And the sole reason for
incorporating Aéroculture Renaud was to acquire an investment loan.
(c)
the financial success or failure of the company.
Mr. Renaud indicated that Poissonnerie des Iles Renaud had ceased operations
and that Aéroculture Renaud was totally inactive.
(d)
maintaining the company. Mr. Renaud is only
paying back the loan for Aéroculture Renaud and has no management authority for
the other family companies.
[Emphasis
added]
What about the period from September 15, 2002, to May 10,
2003? For all practical purposes, the decision is silent on this point.
[16]
Continuing
with the issue of the respondent’s availability, the Board of Referees wrote at
page 5 of its decision, applicant’s record, volume 2, page 343:
[TRANSLATION]
In order to qualify for
employment insurance benefits, Mr. Renaud must also be able to prove that he
was capable of work and unable to find suitable employment (section 18(a)
of the Act).
Therefore, the burden of proof is on the claimant. Availability
is a question of fact that is based on the claimant’s desire to return to the
labour market as soon as he is offered suitable employment. This desire is
shown through reasonable ongoing efforts to find suitable employment as quickly
as possible (Bois A-31-00, Cornelissen‑O’Neil A-652-93
and Bertrand A-631-81).
[Emphasis
added.]
The Board of Referees stated that it was satisfied that the
respondent had succeeded in proving his availability.
[17]
The Board
of Referees’ reasons refer to a statement by the respondent in his application
for benefits, but again the Board ignores this in making its decision. In this
statement, the respondent indicated that he had done [TRANSLATION] “hardly any” job searches in
2002, 2003 and 2004: see applicant’s record, volume 1, page 22. This statement
by the respondent, along with the statement regarding his involvement in the
management of the two companies during the first benefit period, should have
been examined seriously by the Board to ascertain whether the respondent was
unemployed and available for work.
[18]
In his
testimony before the Board of Referees, the respondent distanced himself from
his previous statements and tried to downplay their significance. The Board of
Referees found him to be credible. But the Board did not try in the slightest
to explain why it disregarded the respondent’s previous statements and
preferred a version of the facts that was not just different, but apparently contradictory
in some aspects.
[19]
In short,
the Board of Referees disregarded the documentary evidence in the record that
suggested that the respondent operated a business and had not looked for work.
This evidence discredited the respondent’s testimony at the hearing. The Board
of Referees was entitled, for valid reasons, to reject this evidence after
weighing and assessing it but could not ignore it as the Board did, especially
since this evidence and other evidence in the record went to the core of the issue
of the respondent’s unemployment status and availability: see Canada
(Attorney General) v. Bellavance, 2005 FCA 87, at paragraph 7; and Maki
v. Canada (Employment Insurance Commission), [1998] F.C.J. No. 1129, at
paragraph 3.
[20]
The Umpire
justified his refusal to intervene in the Board of Referees’ decision on the
ground that unemployment status and availability are questions of fact and that
[translation] “the Board of Referees is responsible for examining and interpreting
the facts”: see
page 2 of the Umpire’s decision. But again, the Board of Referees must assess
them and assess the correct ones, i.e., those that are relevant to the period
in question. In my view, this did not happen here, and the Umpire should have
intervened and ordered a new hearing. It is unfortunate that another hearing
must be held with the costs and inconvenience entailed, but absent an
agreement, this is the only fair solution for the two parties.
CONCLUSION
[21]
For these
reasons, the application for judicial review will be allowed without costs as
the applicant requested. The decision of the Umpire will be set aside. The
matter will be returned to the Chief Umpire or to his or her designate for
rehearing by a differently constituted Board of Referees to determine:
(a) whether
the respondent was unemployed and available for work from September 15, 2002,
to May 10, 2003; and
(b) whether
the respondent knowingly made false and misleading statements about this
period, which resulted in the imposition of a penalty and a notice of very
serious violation,
and the Board is to disregard the facts that occurred after
May 10, 2003.
“Gilles
Létourneau”
“I
concur.
J.D.
Denis Pelletier, J.A.”
“I concur.
Johanne
Trudel, J.A.”
Certified
true translation
Mary
Jo Egan, LLB
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