[1] This appeal from a decision of Dubé J. of the Trial Division deals with the interpretation of subsection 35(4) of the Unemployment Insurance Act, R.S.C. 1985, C. U-1, as amended. Section 35(4) provides:

(4) No amount due as a debt to Her Majesty under this section may be recovered after seventy-two months from the date on which the liability arose.

(4) Le recouvrement des crèances visées au présent article se prescrit par soixante-douze mois à compter de la date où elles ont pris naissance.

[2] Dubé J. found that the effect of subsection 35(4) was to bar recovery by the Unemployment Insurance Commission of overpayments and penalties under the Unemployment Insurance Act by any means after seventy-two months from the date on which liability arose.

[3] Counsel for the Commission agrees that subsection 35(4) bars recovery under statutory collection procedures under the Unemployment Insurance Act. However, he says subsection 35(4) does not bar collection procedures if the Commission registers a certificate for the amount owing in the Federal Court under subsection 94(1) of the Unemployment Insurance Act or seeks to obtain recovery under setoff procedures under section 155 of the Financial Administration Act R.S.C. 1985, c. F-11, as amended.

[4] Commission counsel urges the Court to adopt a contextual and purposive approach to the meaning of subsection 35(4). He also says that, from a practical perspective, precluding recovery entirely after seventy-two months will force the Commission to become more aggressive in its collection efforts than it has been in the past, which is inconsistent with the social policy nature of the unemployment insurance legislation.

[5] We agree with the Minister that legislation must be interpreted having regard to context or more specifically, to "the modern principle of interpretation". See E.A. Driedger, Construction of Statutes (2^nd ed., 1983), at p. 87. However, the modern rule of interpretation does not permit the Court to read words into legislation. The Court must take the statute as it finds it.

[6] The Commission has argued that if a certificate is registered in the Federal Court, it is the limitation periods applicable to collection procedures under the Federal Court rules that should apply and that subsection 35(4) cannot be read to make the Federal Court limitations inapplicable.

[7] However, the terms of subsection 35(4) are unrestricted. They do not, read in their own context or together with subsection 94(1) of the Act, envision that the Commission may recover after seventy-two months if the means for recovery involves registration of a certificate in the Federal Court. Nor is there any suggestion that they do not apply to recovery by way of setoff under section 155 of the Financial Administration Act.

[8] We agree with Dubé J. that if the Commission's argument were accepted, it would render subsection 35(4) meaningless. The Commission could simply circumvent the seventy-two month limitation period in subsection 35(4) by registering a certificate in the Federal Court or by taking recovery steps provided in the Financial Administration Act.

[9] Indeed, the Minister's argument is internally inconsistent. Whether the Commission attempts to recover under statutory collection provisions in the Unemployment Insurance Act or whether it attempts to recover in the Federal Court or under the Financial Administration Act, in all cases it is the Commission that is taking steps to recover. To somehow construe subsection 35(4) to apply to some steps that the Commission might take, but not to others, is simply not supported by the words of subsection 35(4).

[10] We would observe that the limitation words in subsection 35(4) are not like limitation words in provincial limitation acts generally or in section 39 of the Federal Court Act. The usual limitation formula precludes the commencement of a proceeding or the taking of steps to recover on a cause of action. Had subsection 35(4) been worded to say that the Commission could not commence recovery proceedings after seventy-two months, the situation would be entirely different, at least with respect to Federal Court proceedings for recovery. However, subsection 35(4) precludes recovery and not the commencement of steps for recovery.

[11] It is open to Parliament to change subsection 35(4) should it wish to permit the Commission to be able to recover indebtedness after seventy-two months from the date on which the liability arose.

[12] The appeal will be dismissed with costs.

"Marshall Rothstein"

J.A.

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-546-00

STYLE OF CAUSE: Canada Employment Insurance Commission et al.

V. Brian Bentley

PLACE OF HEARING: Halifax, Nova Scotia

DATE OF HEARING: January 31, 2002

REASONS FOR JUDGMENT OF THE COURT: (Desjardins,Rothstein & Noël JJ.A.)

RENDERED FROM THE BENCH BY: Rothstein J.A.

APPEARANCES:

Mr. Michael Donovan

Ms. Kathleen McManus FOR THE APPELLANTS

Mr. Donald Murray FOR THE RESPONDENT

SOLICITORS OF RECORD:

Mr. Morris Rosenberg

Deputy Attorney General of Canada FOR THE APPELLANTS

Ottawa, Ontario

Pink, Murray, Graham

Halifax, Nova Scotia FOR THE RESPONDENT

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Canada (Employment Insurance Commission) v. Bentley, 2002 FCA 49

Citations2002 FCA 49

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2002 FCA 49