BETWEEN:
LISA NITTI
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
A-452-02
BETWEEN:
EMILIO FRANCELLA
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
A-453-02
BETWEEN:
ELENA VALELA
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
A-454-02
BETWEEN:
SALVATORE FRANCELLA
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
Heard at Toronto, Ontario, on November 5, 2003.
Judgment delivered at Ottawa, Ontario, on November 21, 2003.
REASONS FOR JUDGMENT BY: ROTHSTEIN J.A.
CONCURRED IN BY: EVANS J.A.
PELLETIER J.A.
A-450-02
BETWEEN:
DOMENIC VALELA
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
A-451-02
BETWEEN:
LISA NITTI
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
A-452-02
BETWEEN:
EMILIO FRANCELLA
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
A-453-02
BETWEEN:
ELENA VALELA
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
A-454-02
BETWEEN:
SALVATORE FRANCELLA
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
ROTHSTEIN J.A.
[1] These are applications for the judicial review of decisions of an Umpire, dated January 18, 2002, under the Employment Insurance Act, S.C. 1996, c. 23. The applicants' appeals to the Umpire were heard jointly and he released one set of reasons which applied to all of the claimants.
FACTS
[2] The Employment Insurance Commission assessed penalties against the applicants because they each knowingly made false and misleading statements on a significant number of reporting cards in one or more of the years 1992, 1993, 1994 and 1995. Appeals from the Commission to a Board of Referees were dismissed by decisions dated March 24, 1999. The appellants appealed from the Board to an Umpire. It would appear from the Umpire's reasons dated August 1, 2000, that he proceeded on the basis of a "representative file." He stated that for each year he had only one reporting card before him. The Umpire rejected the Commission's argument that the one card was sufficient evidence for a finding that there were false or misleading statements on all the other cards for the year. He therefore allowed the applicants' appeal in the following words:
The appeal is allowed with respect to the alleged false and misleading statements based on the regular reporting of employment status to the extent that the issue is remitted to a board differently constituted for an appropriate finding as to whether the Commission has submitted appropriate support evidence upon which to base its ruling.
[3] The matters were considered by a second Board of Referees on December 6, 2000. Before this Board of Referees, the Commission attempted to introduce into evidence the reporting cards that it did not put in evidence before the first Board of Referees. The applicants objected to the introduction of the cards on the ground that they constituted new evidence. The Board accepted the cards submitted by the Commission since "this is a 'Case de Novo'". In a decision dated December 6, 2000, the second Board of Referees relied on the newly submitted cards to deny the applicants' appeals in respect of the penalty issue.
[4] The applicants appealed the December 6, 2000, decisions of the second Board of Referees to the Umpire. According to the Umpire's reasons, the sole issue before him on this second appeal was "whether the Board was entitled to proceed to hear this matter de novo therefore allowing new evidence." The Umpire decided that the hearings before the second Board were de novo and that the reporting cards not submitted before the first Board of Referees were properly submitted before the second Board of Referees. The Umpire dismissed the applicants' appeals in decisions dated January 18, 2002. It is those decisions that are before this Court on this judicial review.
[5] In the January 18, 2002, decisions, the Umpire explains the circumstances that led him to make his initial decisions of December 6, 2000, specifically, the absence of support evidence before the first Board and the Umpire in respect of the false and misleading statements. The Umpire stated:
It must be made quite clear that the basis for the return to a newly constituted Board was the absence of support evidence with respect to the false or misleading statements. As I said in my earlier decision, at Exhibit 59-2 of the file of appeal, the Commission at the hearing before me in March 2000 was unable to provide cards with respect to the false or misleading statements. I accordingly directed that without the cards there could not be an affirmation of the Commission's ruling nor of the Board's decision. Accordingly, this material, which was missing before the Board and before the undersigned, was produced at the hearing before the newly constituted Board. Does this constitute a reversible error? The answer is definitely "no".
[6] In finding that the hearings before the second Board of Referees were de novo, thereby allowing for the introduction of new evidence, the Umpire relied upon the decision of this Court in Canada (Attorney General) v. Purcell, [1996] 1 F.C. 644, in which Robertson J.A. wrote at pages 662-663:
Having regard to the fact that an appeal to the Board is a de novo proceeding, the Board is in a better position to render a decision on the facts than the Commission itself.
...
Before the Commission the claimant has neither any right to a hearing, nor any assurance that evidence presented to it will be given proper weight. This explains why a claimant is entitled to challenge a decision of the Commission on a de novo basis. It is the Board which functions as a quasi-judicial body not the Commission.
ANALYSIS
[7] I am of the respectful opinion that the learned Umpire erred in his reasoning and in his reliance on Purcell. The context of Purcell was an appeal to a Board of Referees from a decision of the Commission. There is no doubt that Purcell is authority for the proposition that such an appeal is de novo in the sense that new evidence may be received by a Board of Referees that was not before the Commission. The other authorities cited by the Commission before this Court are to the same effect. See Canada (Attorney General) v. Dunham, [1997] 1 F.C. 462 at para. 9 (C.A.), and Canada (Attorney General) v. Gauley, 2002 FCA 219 at para. 8. However, the Commission has provided no authority for the proposition that when a matter is remitted by an Umpire to a Board of Referees, the Board of Referees' hearing is, of necessity, de novo.
[8] When an Umpire remits a matter to either the same or a differently constituted Board of Referees for reconsideration, whether the reconsideration hearing is de novo will depend on the terms on which the matter has been remitted by the Umpire and on the requirements of procedural fairness. Providing there is no overriding unfairness, it is open to an Umpire to specify the manner in which a matter which is remitted for rehearing is to proceed, whether by way of a fresh hearing on new evidence, a hearing on the record before the first Board of referees or a combination of the two. It may be that the new evidence will be limited to specific issues. I do not suggest these options are exhaustive. The point is that, provided the procedure is fair, there are a number of options open to an Umpire when remitting a matter for redetermination to a Board of Referees. Certainly, it is not inevitable that the redetermination hearing must be conducted de novo.
[9] As to fairness, I do not purport to list exhaustively the circumstances in which allowing or not allowing new evidence might be unfair. Each case must be considered on its own facts. However, it would seem to me that, except in the most unusual circumstances, it would be procedurally unfair to remit a matter for reconsideration for the sole purpose of giving one party an opportunity to introduce new evidence that could have been introduced at a prior hearing. Generally, once parties close the evidentiary portion of their cases, they proceed to argument and the case is decided on the basis of the evidence submitted. If evidence was deliberately or even accidentally withheld and it is later found that the evidence would be helpful to the party, it will generally be too late to admit it. The opposing party may have determined its strategy on the basis of evidence that was not adduced, or may even have made prejudicial admissions on this basis.
[10] Both because of the way in which the Umpire remitted the matter and because of fairness concerns, I do not think that, in this case, the second Board of Referees should have received new evidence from the Commission. The words in the Umpire's August 1, 2000, decision "to the extent that the issue is remitted to a Board differently constituted for an appropriate finding as to whether the Commission has submitted appropriate support evidence upon which to base its ruling" are in the past tense. As best as I can construe the words, they do not envisage the introduction of new evidence before the second Board of Referees.
[11] However, even if the words could be construed as permitting the introduction of new evidence, I think that it would be unfair to allow new evidence in this case.. In his August 1, 2000, decision, the Umpire was not satisfied that the evidence before the first Board of Referees supported a finding that false or misleading statements were knowingly made on reporting cards. In his January 18, 2002, decisions, he confirmed that the sole basis for remitting the matter to a newly constituted Board of Referees was the absence of evidence to support the allegation that the applicants had made false and misleading statements. It was unfair to give the Commission "a second kick at the can." The Commission was not the appellant before the Umpire. There was no finding of an error of law or procedure at the first Board of Referees hearings. It would be unfair to grant relief to the Commission on the applicants' appeals, especially when there was no finding of error on the part of the first Board of Referees.
CONCLUSION
[12] These applications for judicial review should be allowed with costs and the matters remitted to the Chief Umpire to have them redetermined in accordance with these reasons and, specifically, on the basis that,
(1) the hearing before the second Board of Referees was not de novo;
(2) new evidence should not have been submitted before the second Board of Referees and the second Board of Referees should have decided the issue of penalty solely on the basis of the record before the first Board of Referees; and
(3) the penalties assessed against the applicants that are based on reporting cards not before the first Board of Referees cannot be upheld having regard to the findings of the Umpire in both of his decisions with respect to the insufficiency of the evidence before the first Board of Referees.
"Marshall Rothstein"
J.A.
"I agree
John M. Evans J.A."
"I agree
J.D. Denis Pelletier J.A."
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-455-02
STYLE OF CAUSE: MARIA FRANCELLA
and
ATTORNEY GENERAL OF CANADA
DOCKET: A-199-02
STYLE OF CAUSE: NADA FRANCELLA
and
ATTORNEY GENERAL OF CANADA
DOCKET: A-450-02
STYLE OF CAUSE: DOMENIC VALELA
and
ATTORNEY GENERAL OF CANADA
DOCKET: A-450-02
STYLE OF CAUSE: LISA NITTI
and
ATTORNEY GENERAL OF CANADA
DOCKET: A-452-02
STYLE OF CAUSE: EMILIO FRANCELLA
and
ATTORNEY GENERAL OF CANADA
DOCKET: A-453-02
STYLE OF CAUSE: ELENA VALELA
and
ATTORNEY GENERAL OF CANADA
DOCKET: A-454-02
STYLE OF CAUSE: SALVATORE FRANCELLA
and
ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: NOVEMBER 5, 2003
REASONS FOR JUDGMENT
BY: ROTHSTEIN J.A.
CONCURRED IN BY:
DATED: NOVEMBER 21, 2003
APPEARANCES:
Mr. Dharamjit Singh FOR THE APPLICANTS
Sharon McGovern FOR THE RESPONDENT
SOLICITORS OF RECORD:
Battiston & Associates
Toronto, Ontario FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada FOR THE RESPONDENT
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