Date: 20020724
Docket: T-576-01
Neutral citation: 2002 FCT 811
Ottawa, Ontario July 24, 2002
Present: The Honourable Madam Justice Danièle Tremblay-Lamer
BETWEEN:
DONALD CAMPBELL
Applicant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
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- [1] This is an application for judicial review of a decision of the Canada Employment Insurance Commission (the "Commission") dated December 5, 2000, denying a write-off of overpayment of employment insurance benefits received by the applicant.
- [2] In 1984, the applicant became a one-third shareholder in Cascade Woodworking Ltd. He first applied for unemployment insurance benefits that same year. Because the applicant was not certain whether he was eligible for benefits, he requested that the Commission investigate, which it did and concluded that he was eligible for benefits.
- [3] In 1998, after another investigation, the Commission determined that the applicant was not entitled to benefits because he had made a false or misleading statement in that he was not unemployed at the time he received the benefits. The applicant was required to repay the overpayment of benefits received for the last six years, an amount of $11,716.00. He was also assessed a penalty and issued a Notice of Violation.
- [4] The applicant appealed these determinations to the Board of Referees, which dismissed the appeal on the issue of overpayment but found that the applicant was credible and had made no false or misleading statements. It therefore dismissed the Notice of Violation and the penalty issued. The Board of Referees also recommended that the Commission write-off the overpayment "as a means of addressing the injustice caused by reliance on bad advice and/or decision concerning eligibility upon which the appellant [applicant] relied to his detriment."
- [5] In light of this decision, the applicant requested that the Commission consider writing off the overpayment of benefits pursuant to subsection 56(2) of the Employment Insurance Regulations, SOR/96-332 (the "Regulations").
- [6] By letter dated December 5, 2000, the Commission denied the write-off request on the basis that an error occurred on the application form in that there was no mention made of the applicant's involvement with the Company, Cascade Woodworking Ltd.
- [7] The applicant seeks judicial review of this decision.
- [8] The applicant submits that he met the criteria set out in subsection 56(2) of the Regulations and that the Commission could have exercised its discretion to write-off the overpayment of benefits. He states that the Commission should have taken into account the findings of fact of the Board of Referees which concluded that he had not made any false of misleading statements. The applicant argues that in failing to do so, the Commission fettered its discretion.
- [9] The respondent submits that the power to write-off an overpayment of benefits pursuant to subsection 56(2) of the Regulations is within the exclusive jurisdiction of the Commission and the Commission is under no obligation to follow the recommendations of the Board of Referees.
- [10] For the respondent, the Commission can come to a different conclusion than the Board of Referees with respect to the determination as to whether the applicant made an error or misleading statement.
[11] Paragraph 56(2) of the Regulations reads in part as follows:
| Write-off of Benefits Wrongly Paid
56.(2) That portion of an amount owing under section 47 or 65 of the Act in respect of benefits received more than 12 months before the Commission notifies the debtor of the overpayment may be written off by the Commission if
(a) the overpayment does not arise from an error made by the debtor or as a result of a false or misleading declaration or representation made by the debtor, whether the debtor knew it to be false or misleading or not; and
(b) the overpayment arises as a result of
. . .
(ii) retrospective control procedures or a retrospective review initiated by the Commission,
. . .
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Défalcation des prestations indûment versées
56. (2) La Commission peut défalquer la partie de toute somme due aux termes des articles 47 ou 65 de la Loi qui se rapporte à des prestations reçues plus de 12 mois avant qu'elle avise le débiteur du versement excédentaire, si les conditions suivantes sont réunies :
a) le versement excédentaire ne résulte pas d'une erreur du débiteur ni d'une déclaration fausse ou trompeuse de celui-ci, qu'il ait ou non su que la déclaration était fausse ou trompeuse;
b) le versement excédentaire est attribuable à l'un des facteurs suivants:
. . .
(ii) des mesures de contrôle rétrospectives ou un examen rétrospectif entrepris par la Commission,
. . .
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- [12] It is now well settled that the Commission alone has the discretion to write-off an overpayment (Canada (Attorney General) v. Filiatrault (1998), 235 N.R. 274 (F.C.A.)). However, it must act judiciously in exercising this discretion. In Canada (Attorney General) v. Lai (1998), 229 N.R. 42 at para. 2 (F.C.A.), Marceau J. explained:
... As long as the Commission exercises this discretionary power judicially, that is to say by taking into account all relevant considerations and without being influenced by any improper ones, neither the Board, the umpire nor this Court, is entitled to interfere.
- [13] In the exercise of its discretion, can the Commission make a different finding of fact than the Board of Referees? I do not think so. The jurisprudence has established that the Board of Referees, which functions as a quasi-judicial body, is in a better position than the Commission, which does not function as a quasi-judicial body, to make findings of fact. The Board of Referee's findings are owed deference, not those of the Commission. Robertson J.A. notes one reason for this in Canada (Attorney General) v. Purcell, [1996] 1 F.C. 644 at 662 (C.A.) where he explains that "... the Board is called upon to hear and receive evidence from the parties to an appeal and is expressly required to make findings of fact pursuant to subsection 79(2) of the Act." The same cannot be said of the Commission, which does not hold any hearings on the merits of a claim for waiver of repayment. Of this, Collier J. (sitting as an Umpire) has said that it is probably a violation of the rules of natural justice (CUB 12443).
- [14] Similarly, in Guay v. Canada (Employment and Insurance Commission), [1997] F.C.J. No. 1223 at para. 2 (C.A.), Marceau J. described the Board as "... the pivot of the entire system put in place by the Act for the purpose of verifying and interpreting the facts ..." These comments are indicative of the deference that should be given to findings of fact of the Board of Referees.
[15] In Purcell, supra, the Federal Court of Appeal confirmed the respective role of both the Commission and the Board of Referees with regards to findings of fact. It clearly explained the reasons why the Board of Referees is owed deference on decisions turning on questions of fact. It states at p. 663:
By contrast, the role of the Commission is limited to rendering a decision on the basis of evidence that it deems relevant. 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. It is the decisions of the Board turning on questions of fact which are owed deference, not those of the Commission.
- [16] In my view, this role does not change because the Commission has been given full discretion to write-off an overpayment of benefits pursuant to subsection 56(2) of the Regulations.
- [17] In the case at bar, the Commission took the view that Mr. Campbell has made false or misleading statements by omitting information regarding his precise relationship with Cascade Woodworking Ltd. (Affidavit of S. MacDonald at para. 11; Affidavit of S. Trojanoski at para. 11).
- [18] By contrast, the Board of Referees found that Mr. Campbell made no false or misleading statements.
- [19] The Commission could not disregard the findings of fact made by the Board of Referees on that point.
- [20] By failing to take into account the findings of fact of the Board of Referees, the Commission fettered its discretion and it cannot be said that it exercised its discretion judicially.
- [21] For these reasons, the judicial review is allowed. The matter is sent back for reconsideration directing the Commission to take into account the findings of fact of the Board of Referees that the overpayment did not arise from a false or misleading statement from the applicant.
ORDER
[1] The judicial review is allowed.
[2] The matter is sent back for reconsideration directing the Commission to take into account the findings of fact of the Board of Referees that the overpayment did not arise from a false or misleading statement from the applicant.
"Danièle Tremblay-Lamer"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-576-01
STYLE OF CAUSE: DONALD CAMPBELL
Applicant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: July 9, 2002
REASONS FOR ORDER AND ORDER OF
THE HONOURABLE MADAM JUSTICE TREMBLAY-LAMER
DATED: July 24, 2002
APPEARANCES:
Mr. Leigh P. Gagnon FOR APPLICANT
Mr. Glenn D. Rosenfeld FOR RESPONDENT
SOLICITORS OF RECORD:
Dinning Hunter Lambert & Jackson
Victoria, British Columbia FOR APPLICANT
Morris Rosenberg
The Attorney General of Canada
Vancouver, British Columbia FOR RESPONDENT
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