[1] This appeal and that of the claimant's wife, Gurbachan Kaur Sandhu v. AGC A-341-03, were heard together. As they involve virtually identical facts the reasons in this appeal apply equally to appeal A-341-03 and a copy will be placed on that file.

[2] The claimant and his wife made their initial claims for benefits in 1997, 1999, and 2000 based on employment on Pannu Farms.

[3] After some investigation the Commission referred to the Canadian Customs and Revenue Agency (CCRA) the question for determination as to whether the alleged employment was insurable employment. The CCRA determined that it was not. The claimant was advised of this decision and of his right to appeal it, but did not appeal.

[4] The Commission thus ruled that the claimant was not entitled to benefits. Further the Commission determined that in respect of each of the claims for benefit the claimant had made false statements and penalties were imposed in respect of the statements.

[5] The claimant appealed these decisions to a Board of Referees. The Board dismissed the appeals in respect of the entitlements to benefits. It held that as the claimant had not filed an appeal to the Minister from the insurability ruling of CCRA within the 90 day period permitted by section 91 of the Act, that decision was final and not one which the Board could review.

[6] The Board did however conclude that the claimant had worked in some form on Pannu Farm and that therefore he did not knowingly make false statements as to being so employed. Accordingly, the appeals against the penalties were allowed.

[7] The claimant appealed to an Umpire who confirmed the Board's conclusion on both issues.

[8] No issue is raised before us concerning the penalties which were quashed by the Board. The claimant argues before us that

(1) the Umpire should have directed the Commission to request a new insurability ruling; or

(2) a CCRA ruling on insurability is not final if new evidence later emerges.

[9] We are in agreement with the Board and the Umpire that by section 91 of the Employment Insurance Act ("the Act") the claimant had 90 days to appeal to the Minister of National Revenue after being notified of the insurability decision of CCRA. He failed to take such an appeal. Only the Minister, or on appeal from his decision, the Tax Court of Canada, can review a decision of insurability. Otherwise by subsection 104(2) of the Act such decisions on insurability are final and binding. Therefore neither the Board of Referees nor the Umpire could order the Commission to reconsider an insurability decision already taken and not appealed.

[10] We do note however that by section 91 of the Act it is open to the Commission at any time to appeal a CCRA insurability decision to the Minister. It might well be appropriate for the Commission to take that initiative in this case. We note, for example, that when the Commission requested an insurability ruling it advised CCRA as follows:

It is believed that claimant never ever worked farm labour for this employer [Pannu Farms] or any other employer and that all ROE's are fraudulent ... (Exhibit 21).

In the ruling which it sent to the claimant CCRA stated:

Your employment with Rupinder Pannu of Pan Pac Farms [sic] during the periods under review cannot be considered as insurable or pensionable employment as you were not an employee performing service under a contract of service. These rulings were based on the information obtained from Human Resources Development Canada only (Exhibit 22-2).

However the Board of Referees, after hearing several witnesses, stated its findings that

On the balance of probabilities the claimant did work for Pannu Farms during the three years in question and, consequently, did not knowingly provide false or misleading information in making applications of benefits on the basis of Records of Employment issued by his employer. Further, we find that the claimant did not make knowingly false statements in submitting report cards in support of the claims for benefits (Exhibit 39.9).

(For comparable passages in A-341-03 see there Exhibits 23, 28.2, 47)

[11] Given the careful findings of fact by the Board based on evidence from several eye-witnesses, findings which refute the Commission's own allegations upon which the original CCRA ruling was expressly based, it would appear appropriate for the Commission to have the insurability ruling reviewed as it appears to us that that ruling was based on the Commission's position at the time that there was in fact no employment.

[12] Such an appeal would of course be a matter within the discretion of the Commission and we cannot direct it to take such a step.

[13] In the circumstances, the application for judicial review must be dismissed but without costs.

(Sgd.) "B.L. Strayer"

J.A.

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-340-03

A-341-03

APPEAL FROM A Decision of the Umpire, Employment Insurance Act.

STYLE OF CAUSE: HARCHARAN SINGH SANDHU

GURBACHAN KAUR SANDHU and

ATTORNEY GENERAL OF CANADA

PLACE OF HEARING: VANCOUVER, B.C.

DATE OF HEARING: 01-APR-2004

REASONS FOR JUDGMENT: JUSTICE STRAYER

CONCURRED IN BY: JUSTICE NOËL

JUSTICE SEXTON

DATED: 01-APR-2004

APPEARANCES:

Mr. Gregory P. Bruce

FOR THE APPLICANT

Ms. Azalea Jin

Department of Justice

FOR THE RESPONDENT

SOLICITORS OF RECORD:

Mr. Gregory P. Bruce, Barrister & Solicitor, Vancouver, B.C.

FOR THE APPLICANT

Mr. Morris Rosenberg

Deputy Attorney General of Canada

FOR THE RESPONDENT

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Sandhu v. Canada (Attorney General), 2004 FCA 147

Citations2004 FCA 147

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2004 FCA 147