Docket: A-44-14
Citation:
2015 FCA 50
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CORAM:
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RYER J.A.
WEBB J.A.
NEAR J.A.
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BETWEEN:
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PRASHANTH PATHMANATHAN
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Applicant
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and
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OFFICE OF THE UMPIRE
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Respondent
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REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario, on February 18, 2015).
RYER J.A.
[1]
The applicant, Mr. Prashanth Pathmanathan,
applied for benefits under the Employment Insurance Act, S.C.
1996, c. 23 (the “Act” ) on the basis that he
had been employed by an employer known as Liansons, but had lost that
employment because of a shortage of work.
[2]
In support of his application, Mr. Pathmanathan
filed a record of employment (the “ROE”), which
was prepared by Mr. Karunathirajah Wilson Singarayar (the “Owner”), the owner of Liansons and which stipulated
that Mr. Pathmanathan had worked for Liansons from July 5, 2008 to December 12,
2008. The Employment Insurance Commission (the “Commission”)
granted his application and Mr. Pathmanathan received 27 weeks of benefits,
which commenced on December 14, 2008 and which totalled $9,126.
[3]
The Commission determined that the ROE that
supported Mr. Pathmanathan’s application for benefits was fraudulently issued
by the Owner to him and that, in fact, he was never employed by Liansons. This
determination was based upon a confession by the Owner to the effect that he had
sold over 800 ROEs to individuals who were never his employees. The Owner,
through his legal counsel, provided a list of the 12 ROEs that he had issued to
the individuals who had been employed by him and Mr. Pathmanathan’s ROE was not
on the list. In addition, the Commission’s determination was based upon an
interview with Mr. Pathmanathan in which it questioned the credibility of his
assertion that he had, in fact, been employed by Liansons.
[4]
As a consequence of its determinations that Mr.
Pathmanathan’s ROE, which underpinned his application for benefits, was
fraudulent and that he had never been employed by Liansons, the Commission
cancelled Mr. Pathmanathan’s claim for benefits, which began on December 14,
2008. The Commission determined that this cancellation was warranted on the
basis that because Mr. Pathmanathan was never employed by Liansons, he had not
accumulated the number of hours of insurable employment that are stipulated in
subsection 7(2) of the Act as a precondition to qualifying to receive benefits
under subsection 7(1) of the Act.
[5]
Mr. Pathmanathan’s disqualification for benefits
led the Commission to issue Mr. Pathmanathan a Notice of Debt which stipulated
that he had received an overpayment of benefits in the amount of $9,126 and
that he was required to repay such amount.
[6]
The Commission also assessed a penalty of $3,698
against Mr. Pathmanathan under subsection 38(1) of the Act, on the basis that
he had made misrepresentations to the Commission in his application for
benefits by asserting that he had been an employee of Liansons. In total, 17
such misrepresentations were asserted: in his application for benefits, in the
ROE that he filed in support of his application, in the interview with the
investigation arm of the Commission, and in 14 bi-weekly reports he filed
during the 27 - week period that he received benefits.
[7]
Finally, the Commission issued a notice of a
very serious violation of the Act to Mr. Pathmanathan under subsection 7.1(4)
of the Act as a result of the imposition of the penalty under subsection 38(1)
of the Act.
[8]
Mr. Pathmanathan appealed to the Board of
Referees (the “Board”), which upheld the
determinations of the Commission and dismissed his appeal. In doing so, the
Board found that Mr. Pathmanathan made false representations when he maintained
that he was employed by Liansons and used the ROE, which contained false or
misleading information, to support his claim for benefits.
[9]
Unhappy with the decision of the Board, Mr.
Pathmanathan appealed that decision to the Umpire.
[10]
In his notice of appeal, Mr. Pathmanathan
alleged that the Board made an error of law but in elaborating upon his grounds
of appeal, Mr. Pathmanathan simply reiterated that he had, in fact, worked as
an employee of Liansons.
[11]
The Umpire determined that the major issue was
whether Mr. Pathmanathan was or was not one of the 12 individuals who were
actually employed by Liansons. He reviewed the documentary evidence, as well
as Mr. Pathmanathan’s oral testimony on this issue and concluded that the Board
had before it sufficient evidence to enable it to reach its conclusion that Mr.
Pathmanathan had not, in fact, been employed by Liansons.
[12]
The Umpire went on to conclude that the Board’s
decision was compatible with the applicable law and that the Board had observed
the principles of natural justice in granting Mr. Pathmanathan a fair hearing.
As a consequence, he dismissed the appeal.
[13]
Mr. Pathmanathan applied to this Court for
judicial review of the Umpire’s decision. In his application, Mr. Pathmanathan
once again asserted that he had, in fact, worked as an employee of Liansons.
He also stated that he was not aware that the ROE, upon which his application
for benefits was based, was false.
[14]
To succeed in this application, Mr. Pathmanathan
must convince the Court that the Umpire chose the wrong standard of review when
he reviewed the decision of the Board or, if the Umpire chose the correct
standard of review, he applied it incorrectly in his review of the decision.
[15]
The applicable standard of review is largely
determined by the nature of the issue that is being reviewed. Umpires are
required to review questions of law on the standard of correctness, and
questions of fact and mixed fact and law involving no readily extricable
question of law are reviewed on the standard of reasonableness. (See De
Jesus v. Canada (Attorney General), 2013 FCA 264 at paragraph 30). De
Jesus further stipulates that this Court will also review questions of law
on the standard of correctness and questions of fact or mixed fact and law
involving no readily extricable question of law on the standard of
reasonableness.
[16]
Before the Board, the essential question was
whether or not Mr. Pathmanathan worked as an employee of Liansons. This is
largely, if not completely, a question of fact and therefore should have been reviewed
by the Umpire on the more deferential standard of reasonableness.
[17]
While the Umpire did not specifically enunciate
the standard upon which he reviewed the Board’s decision on this factual
question, it is evident that he concluded that the Board had sufficient
evidence before it to reach the factual conclusion that Mr. Pathmanathan had
not worked for Liansons, as he had asserted in his application for benefits.
In essence, the Umpire reviewed this factual question on the standard of
reasonableness.
[18]
Before this Court, Mr. Pathmanathan is
essentially asserting that the Umpire misapplied the reasonableness standard of
review when he upheld the Board’s factual findings on the critical issue of
whether or not Mr. Pathmanathan had worked for Liansons.
[19]
In our view, this assertion is untenable. The
evidence before both the Board and the Umpire is clearly sufficient to support
the factual finding that Mr. Pathmanathan was not employed by and did not work
for Liansons at the times stipulated in the ROE that he submitted in support of
his claims for benefits. In terms of the grounds of appeal stipulated in
paragraph 115(2)(a) of the Act and subsection 18.1(4)(d) of the Federal
Courts Act, this critical factual finding cannot be said to have been an
erroneous finding of fact made by the Board in a perverse or capricious manner
or without regard for the material before it. Accordingly, we are of the view
that this critical finding of fact was reasonable.
[20]
Since this factual finding underpins each of the
three determinations of the Commission, namely:
(a)
the cancellation of Mr. Pathmanathan’s claim for
benefits and the resulting overpayment of $9,126;
(b)
the imposition of the $3,698 penalty on Mr.
Pathmanathan; and
(c)
the issuance to Mr. Pathmanathan of a very
serious violation.
we are of the view
that these determinations should stand.
[21]
For these reasons, the application will be
dismissed, with costs.
"C. Michael Ryer"
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