Docket: T-903-15
Citation:
2016 FC 199
Ottawa, Ontario, February 15, 2016
PRESENT: The
Honourable Mr. Justice Russell
BETWEEN:
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SUSAN AUCH
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Applicant
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and
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ATTORNEY
GENERAL OF CANADA
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Respondent
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JUDGMENT AND REASONS
I.
INTRODUCTION
[1]
This is an application under s 18.1 of the Federal
Courts Act, RSC 1985, c F-7 [Act] for judicial review of a decision of a
member of the Appeal Division of the Social Security Tribunal [SST-AD] dated
March 23, 2015 [Decision] refusing leave to appeal a decision of the General
Division of the Social Security Tribunal [SST-GD].
II.
BACKGROUND
[2]
The Applicant received maternity/parental
benefits pursuant to the Employment Insurance Act, SC 1996, c 23 [EI
Act] from June 3, 2007 to May 17, 2008.
[3]
On June 21, 2007, the Canada Employment
Insurance Commission [Commission] telephoned the Applicant, advising her that
any earnings made as a real estate agent should be communicated to the
Commission so that they could be deducted from her benefits. On the same day,
the Commission sent a letter explaining how self-employment affects a claim.
[4]
In 2011, the Commission became aware that the
Applicant declared self-employment earnings of $90,000 on her T-1 statement for
2008.
[5]
On November 4, 2011, the Commission, unaware
that the Applicant had moved, mailed a letter to her address on file requesting
additional information regarding her earnings from 2008. On January 5, 2012, a
follow-up letter was sent. These communications were left unanswered by the
Applicant.
[6]
On November 19, 2012, the Commission, believing
the Applicant to have made a false or misleading statement because her earnings
had not been reported while she was in receipt of benefits and no contradictory
information had been submitted, issued a Record of Decision Violation. The earnings
declared for 2008 were allocated at a rate of $1,746.00 for 19 weeks and
$1,396.00 for 1 week, generating an overpayment of $8,707.32.
[7]
In March, 2013, the Commission was notified by
the Applicant that she had never received its letters and had moved to
Manitoba. The Commission subsequently permitted the Applicant further time to
supply the additional information regarding her 2008 earnings.
[8]
On June 11, 2013, the Applicant wrote to the
Commission, advising that she had not worked or received a salary while on
maternity leave. She did not provide any accompanying documentation to
corroborate her account and claimed that the business income she earned as a
real estate agent was earned subsequent to her maternity leave so that there
was no basis for a redetermination of income. The letter was resent by the
Applicant twice and was received by the Commission on September 12, 2013 and
again on October 18, 2013.
[9]
On October 25, 2013, the Applicant filed a
Request for Reconsideration of the overpayment. On November 26, 2013, by way of
letter the Commission acknowledged receipt of the request and asked again for
documentary proof that she did not generate earnings while in receipt of
benefits.
[10]
On December 5, 2013, the Commission, having
received no response from the Applicant, attempted to telephone her with no
success. On December 6, 2013, a letter was sent to the Applicant advising her
that reconsideration was denied as no documentation had been provided to
corroborate her position.
[11]
On January 13, 2014, a Notice of Debt was issued
for the $8,707.32 overpayment.
[12]
On January 28, 2014, the SST-GD advised the
Applicant by letter that it would be proceeding by written questions and
answers. The deadline for receipt of the Applicant’s written answers was
February 21, 2014; the SST-GD received no written answers from the Applicant.
[13]
On February 25, 2014, the SST-GD dismissed the
Applicant’s appeal. On June 26, 2014, the Applicant applied for leave to appeal
to the SST-AD. On March 23, 2015 the Application for Leave to Appeal was
dismissed by a member of the SST-AD.
III.
DECISION UNDER REVIEW
A.
Appeal Division Decision
[14]
The SST-AD’s Decision of March 23, 2015, denying
the Applicant’s leave to appeal, is the subject of this judicial review. The
Decision found that the Applicant simply repeated the same submissions she had
offered the SST-GD. The member concluded that the Applicant was essentially
asking that the case be reheard and that a different conclusion be reached. The
Applicant failed to explain how the SST-GD had made at least one reviewable
error. The member said that, as such, the law would not permit the intervention
of the SST-AD.
B.
General Division Decision
[15]
Following a question and answer hearing, the
SST-GD decided on February 25, 2014 that monies received by the Applicant
during the period in which she was also receiving benefits were properly
allocated by the Commission as “earnings” as per s 35 of the Employment
Insurance Regulations, SOR/96-332 [EI Regulations], and that the
Commission’s imposition of a warning penalty pursuant to ss 38 and 41.1 of the EI
Act was justified.
[16]
Holding that the onus was on the Applicant to
show that any money she had earned was received after the benefits period
ceased, the SST-GD concluded that the Applicant had not met her burden of proof
as she did not provide any supporting evidence indicative of the dates of the
payment on which she had received the monies at issue.
[17]
As regards the warning issued by the Commission,
the SST-GD examined whether a false or misleading statement had been made,
whether it had been made knowingly and whether the Commission had properly
exercised its discretionary authority in calculating the amount of the penalty.
It was determined that, on a balance of probabilities, the Applicant did make a
false or misleading statement by omitting to declare her earnings while in
receipt of benefits, despite being advised that she must do so. The SST-GD
found that the warning letter was a proper exercise of the Commission’s
discretion to impose penalties under s 38 of the EI Act.
IV.
ISSUES
[18]
This judicial review is principally concerned
with determining whether the SST-AD’s Decision refusing leave to appeal was
reasonable. From her written submissions, the Applicant raises the following as
points in issue:
1)
Subsection 52(1) of the EI Act creates a
36 month limitation period. The Respondent did not commence an action against
the Applicant within that limitation period.
2)
Subsection 52(5) of the Act states that if, in
the opinion of the Commission, a false or misleading statement or representation
has been made in connection with a claim, the Commission has 72 months within
which to reconsider the claim.
3)
The Applicant submits that she did not provide
any false or misleading statement or representation in connection with a claim
and that the Respondent abused its discretion to claim that the Applicant made
a false or misleading statement or representation in order to extend the limitation
period.
4)
The Decision decided that the Applicant “received money which was paid to her as business income from
her employment as a real estate agent.”
5)
The Applicant submits that this is not true and
that the Applicant did not earn real estate commission during the benefit period.
V.
STANDARD OF REVIEW
[19]
The Supreme Court of Canada in Dunsmuir v New
Brunswick, 2008 SCC 9 [Dunsmuir] held that a standard of review
analysis need not be conducted in every instance. Instead, where the standard
of review applicable to a particular question before the court is settled in a
satisfactory manner by past jurisprudence, the reviewing court may adopt that
standard of review. Only where this search proves fruitless, or where the
relevant precedents appear to be inconsistent with new developments in the
common law principles of judicial review, must the reviewing court undertake a
consideration of the four factors comprising the standard of review analysis: Agraira
v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at para
48.
[20]
The points in issue raised by the Applicant have
brought forward three principal concerns: points 1) and 2) address the SST’s
interpretation of a limitation period; point 3) speaks of an alleged abuse of
discretion on the part of the SST, and points 4) and 5) ask the Court to
determine whether the SST was incorrect in its conclusion that the Applicant
had earned income outside of the benefit period.
[21]
The Respondent submits, and I concur, that the two-step analysis that previously guided this
Court when reviewing decisions of the former Pensions Appeals Board (now
replaced by the SST) on applications for leave to appeal, should be
reconsidered. That analysis involved ascertaining: (1) whether the correct test
was applied; and (2) whether an error had occurred in determining whether there
was an arguable case. The Department of Employment and Social
Development Act, 2005, c 34, s 1 [DESDA], the SST-AD’s enabling statute,
now establishes the test for leave to appeal at s 58.
[22]
In Atkinson v Canada (Attorney General),
2014 FCA 187, the Federal Court of Appeal reviewed the appropriate
standard of review for decisions of the SST-AD in relation to the Canada
Pension Plan. There, the Court concluded that because the SST-AD was
interpreting and applying its home statute and the presumption of a standard of
reasonableness had not been rebutted, it was the correct standard of review (at
paras 24-32). This reasoning was recently applied in Thibodeau v Canada (Attorney
General), 2015 FCA 167 at para 35, where the Court found that the EI Act
was closely connected to the SST’s mandate and deference should be presumed.
See also Tracey v Canada (Attorney General), 2015 FC 1300. Similarly, the
concerns raised by the Applicant each relate to the SST’s interpretation of its
home legislation, its capacities and its discretion and are questions of mixed
fact and law. Consequently, the standard of reasonableness applies to each of
the points in issue raised in the present application.
[23]
When reviewing a decision on the standard of
reasonableness, the analysis will be concerned with “the
existence of justification, transparency and intelligibility within the
decision-making process [and also with] whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law”: see Dunsmuir, above, at para 47; Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 59. Put another
way, the Court should intervene only if the Decision was unreasonable in the
sense that it falls outside the “range of possible,
acceptable outcomes which are defensible in respect of the facts and law.”
VI.
STATUTORY PROVISIONS
[24]
The following provisions of the EI Act
are applicable in this proceeding:
Undeclared Earnings
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Rémunération non déclarée
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…
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…
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19(3) If the claimant has failed to
declare all or some of their earnings to the Commission for a period,
determined under the regulations, for which benefits were claimed,
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19(3) Lorsque le prestataire a omis
de déclarer à la Commission tout ou partie de la rémunération qu’il a reçue à
l’égard d’une période, déterminée conformément aux règlements, pour laquelle
il a demandé des prestations :
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(a) the following amount shall be
deducted from the benefits paid to the claimant for that period:
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(a) la Commission déduit des
prestations versées à l’égard de cette période un montant correspondant :
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(i) the amount of the undeclared
earnings, if, in the opinion of the Commission, the claimant knowingly failed
to declare the earnings, or
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(i) à la rémunération non déclarée
pour cette période, si elle estime que le prestataire a sciemment omis de
déclarer tout ou partie de cette rémunération,
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(ii) in any other case, the amount of
the undeclared earnings less the difference between
(A) all amounts determined under
paragraph (2)(a) or (b) for the period,
and
(B) all amounts that were applied
under those paragraphs in respect of the declared earnings for the period;
and
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(ii) dans tout autre cas, à celui
obtenu par soustraction, du total de la rémunération non déclarée qu’il a
reçue pour cette période, de la différence entre l’exemption à laquelle il a
droit, pour cette période, au titre du paragraphe (2) et celle dont il a
bénéficié;
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(b) the deduction shall be made
(i) from the benefits paid for a
number of weeks that begins with the first week for which the earnings were
not declared in that period, and
(ii) in such a manner that the amount
deducted in each consecutive week equals the claimant’s benefits paid for
that week.
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(b) ce montant est déduit des
prestations versées à l’égard des semaines commençant par la première semaine
à l’égard de laquelle la rémunération n’a pas été déclarée, de sorte que le
montant de la déduction pour chaque semaine consécutive soit égal au montant
des prestations versées
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…
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…
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Penalty for claimants, etc.
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Pénalité : prestataire
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38 (1) The Commission may impose on a
claimant, or any other person acting for a claimant, a penalty for each of
the following acts or omissions if the Commission becomes aware of facts that
in its opinion establish that the claimant or other person has
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38 (1) Lorsqu’elle prend connaissance
de faits qui, à son avis, démontrent que le prestataire ou une personne
agissant pour son compte a perpétré l’un des actes délictueux suivants, la
Commission peut lui infliger une pénalité pour chacun de ces actes :
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(a) in relation to a claim for
benefits, made a representation that the claimant or other person knew was
false or misleading;
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(a) à l’occasion d’une demande de
prestations, faire sciemment une déclaration fausse ou trompeuse;
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(b) being required under this Act or
the regulations to provide information, provided information or made a
representation that the claimant or other person knew was false or
misleading;
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(b) étant requis en vertu de la
présente loi ou des règlements de fournir des renseignements, faire une
déclaration ou fournir un renseignement qu’on sait être faux ou trompeurs;
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(c) knowingly failed to declare to
the Commission all or some of the claimant’s earnings for a period determined
under the regulations for which the claimant claimed benefits;
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(c) omettre sciemment de déclarer à
la Commission tout ou partie de la rémunération reçue à l’égard de la période
déterminée conformément aux règlements pour laquelle il a demandé des
prestations;
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(d) made a claim or declaration that
the claimant or other person knew was false or misleading because of the non-disclosure
of facts;
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(d) faire une demande ou une
déclaration que, en raison de la dissimulation de certains faits, l’on sait
être fausse ou trompeuse;
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(e) being the payee of a special
warrant, knowingly negotiated or attempted to negotiate it for benefits to
which the claimant was not entitled;
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(e) sciemment négocier ou tenter de
négocier un mandat spécial établi à son nom pour des prestations au bénéfice
desquelles on n’est pas admissible;
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(f) knowingly failed to return a
special warrant or the amount of the warrant or any excess amount, as
required by section 44;
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(f) omettre sciemment de renvoyer un
mandat spécial ou d’en restituer le montant ou la partie excédentaire comme
le requiert l’article 44;
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(g) imported or exported a document
issued by the Commission, or had it imported or exported, for the purpose of
defrauding or deceiving the Commission; or
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(g) dans l’intention de léser ou de
tromper la Commission, importer ou exporter, ou faire importer ou exporter,
un document délivré par elle;
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(h) participated in, assented to or
acquiesced in an act or omission mentioned in paragraphs (a) to (g).
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(h) participer, consentir ou
acquiescer à la perpétration d’un acte délictueux visé à l’un ou l’autre des
alinéas a) à g).
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Limitation on imposition of penalties
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Restrictions relatives à
l’imposition des pénalités
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40. A penalty shall not be imposed
under section 38 or 39 if
(a) a prosecution for the act or
omission has been initiated against the employee, employer or other person;
or
(b) 36 months have passed since the
day on which the act or omission occurred.
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40. Les pénalités prévues aux
articles 38 et 39 ne peuvent être infligées plus de trente-six mois après la
date de perpétration de l’acte délictueux ni si une poursuite a déjà été
intentée pour celui-ci.
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Warning
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Avertissement
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41.1 (1) The Commission may issue a
warning instead of setting the amount of a penalty for an act or omission
under subsection 38(2) or 39(2).
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41.1 (1) La Commission peut, en guise
de pénalité pouvant être infligée au titre de l’article 38 ou 39, donner un
avertissement à la personne qui a perpétré un acte délictueux.
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Limitation period
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Prescription
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(2) Notwithstanding paragraph 40(b),
a warning may be issued within 72 months after the day on which the act or
omission occurred.
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(2) Malgré l’article 40,
l’avertissement peut être donné dans les soixante-douze mois suivant la
perpétration de l’acte délictueux.
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Reconsideration
of claim
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Nouvel
examen de la demande
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52 (1) Despite
section 111, but subject to subsection (5), the Commission may consider a
claim for benefits within 36 months after the benefits have been paid or
would have been payable.
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52 (1) Malgré
l’article 111 mais sous réserve du paragraphe (5), la Commission peut, dans
les trente-six mois qui suivent le moment où des prestations ont été payées
ou sont devenues payables, examiner de nouveau toute demande au sujet de ces
prestations.
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Decision
|
Décision
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52 (2) If the Commission decides that
a person has received money by way of benefits for which the person was not qualified
or to which the person was not entitled, or has not received money for which
the person was qualified and to which the person was entitled, the Commission
must calculate the amount of the money and notify the claimant of its
decision.
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(2) Si elle décide qu’une personne a
reçu une somme au titre de prestations pour lesquelles elle ne remplissait
pas les conditions requises ou au bénéfice desquelles elle n’était pas
admissible, ou n’a pas reçu la somme pour laquelle elle remplissait les
conditions requises et au bénéfice de laquelle elle était admissible, la
Commission calcule la somme payée ou à payer, selon le cas, et notifie sa
décision au prestataire.
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Extended time to reconsider claim
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Prolongation du délai de réexamen
de la demande
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(5) If, in the opinion of the
Commission, a false or misleading statement or representation has been made
in connection with a claim, the Commission has 72 months within which to
reconsider the claim.
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(5) Lorsque la Commission estime
qu’une déclaration ou affirmation fausse ou trompeuse a été faite
relativement à une demande de prestations, elle dispose d’un délai de
soixante-douze mois pour réexaminer la demande.
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Definition
of insured participant
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Définition
de participant
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58 In this
Part, insured participant means an insured person who requests assistance
under employment benefits and, when requesting the assistance, is an
unemployed person
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58 Dans la
présente partie, participant désigne l’assuré qui demande de l’aide dans le
cadre d’une prestation d’emploi et qui, à la date de la demande, est un
chômeur, selon le cas :
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(a) for whom a benefit period is
established or whose benefit period has ended within the previous 60 months;
or
|
(a) à l’égard de qui une période de
prestations a été établie ou a pris fin au cours des soixante derniers mois;
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(b) who would have had a benefit
period established for them within the previous 60 months if it were not for
the fact that they have had fewer than the hours referred to in subsection
7(4) in the last 52 weeks before what would have been their qualifying period
and who, during what would have been that qualifying period, has had at least
the number of hours of insurable employment indicated in the table set out in
subsection 7(2) or 7.1(1) in relation to their applicable regional rate of
unemployment.
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(b) à l’égard de qui une période de
prestations aurait été établie au cours des soixante derniers mois n’était le
fait que le nombre d’heures qu’il a cumulées au cours de la période de
cinquante-deux semaines qui précède le début de ce qui aurait été sa période
de référence est inférieur à celui visé au paragraphe 7(4) et qui, au cours
de ce qui aurait été sa période de référence, a exercé un emploi assurable
pendant au moins le nombre d’heures indiqué au tableau figurant au paragraphe
7(2) ou 7.1(1) en fonction du taux régional de chômage qui lui est
applicable.
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[25]
The following provisions of the EI
Regulations are applicable in this proceeding:
Determination
of Earnings for Benefit Purposes
|
Détermination
de la rémunération aux fins du bénéfice des prestations
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35 (2) Subject
to the other provisions of this section, the earnings to be taken into
account for the purpose of determining whether an interruption of earnings
under section 14 has occurred and the amount to be deducted from benefits
payable under section 19, subsection 21(3), 22(5), 152.03(3) or 152.04(4) or
section 152.18 of the Act, and to be taken into account for the purposes of
sections 45 and 46 of the Act, are the entire income of a claimant arising
out of any employment, including:
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35 (2) Sous
réserve des autres dispositions du présent article, la rémunération qu’il
faut prendre en compte pour vérifier s’il y a eu l’arrêt de rémunération visé
à l’article 14 et fixer le montant à déduire des prestations à payer en vertu
de l’article 19, des paragraphes 21(3), 22(5), 152.03(3) ou 152.04(4), ou de
l’article 152.18 de la Loi, ainsi que pour l’application des articles 45 et
46 de la Loi, est le revenu intégral du prestataire provenant de tout emploi,
notamment :
|
(a) amounts payable to a claimant in
respect of wages, benefits or other remuneration from the proceeds realized
from the property of a bankrupt employer;
|
(a) les montants payables au
prestataire, à titre de salaire, d’avantages ou autre rétribution, sur les
montants réalisés provenant des biens de son employeur failli;
|
(b) workers’ compensation payments
received or to be received by a claimant, other than a lump sum or pension
paid in full and final settlement of a claim made for workers' compensation
payments;
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(b) les indemnités que le prestataire
a reçues ou recevra pour un accident du travail ou une maladie
professionnelle, autres qu’une somme forfaitaire ou une pension versées par
suite du règlement définitif d’une réclamation;
|
(c) payments a claimant has received
or, on application, is entitled to receive under
|
(c) les indemnités que le prestataire
a reçues ou a le droit de recevoir, sur demande, aux termes :
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(i) a group wage-loss indemnity plan,
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(i) soit d’un régime collectif
d’assurance-salaire,
|
(ii) a paid sick, maternity or
adoption leave plan,
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(ii) soit d’un régime de congés payés
de maladie, de maternité ou d’adoption,
|
(iii) a leave plan providing payment
in respect of the care of a child or children referred to in subsection 23(1)
or 152.05(1) of the Act,
|
(iii) soit d’un régime de congés
payés pour soins à donner à un ou plusieurs enfants visés aux paragraphes
23(1) ou 152.05(1) de la Loi,
|
(iv) a leave plan providing payment
in respect of the care or support of a family member referred to in
subsection 23.1(2) or 152.06(1) of the Act, or
|
(iv) soit d’un régime de congés payés
pour soins ou soutien à donner à un membre de la famille visé aux paragraphes
23.1(2) ou 152.06(1) de la Loi,
|
(v) a leave plan providing payment in
respect of the care or support of a critically ill child;
|
(v) soit d’un régime de congés payés
pour soins ou soutien à donner à un enfant gravement malade;
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(d) notwithstanding paragraph (7)(b)
but subject to subsections (3) and (3.1), the payments a claimant has
received or, on application, is entitled to receive from a motor vehicle
accident insurance plan provided under a provincial law in respect of the
actual or presumed loss of income from employment due to injury, if the
benefits paid or payable under the Act are not taken into account in
determining the amount that the claimant receives or is entitled to receive
from the plan;
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(d) malgré l’alinéa (7)b) et sous
réserve des paragraphes (3) et (3.1), les indemnités que le prestataire a
reçues ou a le droit de recevoir, sur demande, dans le cadre d’un régime
d’assurance-automobile prévu par une loi provinciale pour la perte réelle ou
présumée du revenu d’un emploi par suite de blessures corporelles, si les
prestations payées ou payables en vertu de la Loi ne sont pas prises en
compte dans l’établissement du montant que le prestataire a reçu ou a le
droit de recevoir dans le cadre de ce régime;
|
(e) the moneys paid or payable to a
claimant on a periodic basis or in a lump sum on account of or in lieu of a
pension; and
|
(e) les sommes payées ou payables au
prestataire, par versements périodiques ou sous forme de montant forfaitaire,
au titre ou au lieu d’une pension;
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(f) where the benefits paid or
payable under the Act are not taken into account in determining the amount
that a claimant receives or is entitled to receive pursuant to a provincial
law in respect of an actual or presumed loss of income from employment, the
indemnity payments the claimant has received or, on application, is entitled
to receive pursuant to that provincial law by reason of the fact that the
claimant has ceased to work for the reason that continuation of work entailed
physical dangers for
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(f) dans les cas où les prestations payées
ou payables en vertu de la Loi ne sont pas prises en compte dans
l’établissement du montant que le prestataire a reçu ou a le droit de
recevoir en vertu d’une loi provinciale pour la perte réelle ou présumée du
revenu d’un emploi, les indemnités que le prestataire a reçues ou a le droit
de recevoir, sur demande, en vertu de cette loi provinciale du fait qu’il a
cessé de travailler parce que la continuation de son travail mettait en
danger l’une des personnes suivantes :
|
(i) the claimant,
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(i) le prestataire,
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(ii) the claimant's unborn child, or
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(ii) l’enfant à naître de la
prestataire,
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(iii) the
child the claimant is breast-feeding.
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(iii)
l’enfant qu’allaite la prestataire.
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[26]
The following provisions of the DESDA are
applicable in this proceeding:
Grounds of Appeal
|
Moyens d’appel
|
58 (1) The only grounds of appeal are
that
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58 (1) Les seuls moyens d’appel sont
les suivants :
|
(a) the General Division failed to
observe a principle of natural justice or otherwise acted beyond or refused
to exercise its jurisdiction;
|
(a) la division générale n’a pas
observé un principe de justice naturelle ou a autrement excédé ou refusé
d’exercer sa compétence;
|
(b) the General Division erred in law
in making its decision, whether or not the error appears on the face of the
record; or
|
(b) elle a rendu une décision
entachée d’une erreur de droit, que l’erreur ressorte ou non à la lecture du
dossier;
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(c) the General Division based its
decision on an erroneous finding of fact that it made in a perverse or
capricious manner or without regard for the material before it.
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(c) elle a fondé sa décision sur une
conclusion de fait erronée, tirée de façon abusive ou arbitraire ou sans
tenir compte des éléments portés à sa connaissance.
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VII.
ARGUMENTS
A.
Applicant
[27]
The Applicant submits that she had regular
communication with Canada Revenue Agency [CRA], who had all of her current contact
information, and the Commission would have had access to this information
through its communications with CRA. The Commission should have been able to
contact her on all of the dates that it claims it attempted to reach her by
phone or letter.
[28]
The Applicant says that according to s 52(1) of
the EI Act, the legislated limitation period for reclaiming overpayment
on benefits expired on May 17, 2011; the Respondent did not attempt to contact
the Applicant prior to this date. The first time that the Respondent did
communicate with the Applicant was in a letter dated November 4, 2011 – 41
months after the expiry of the limitation period. Because the Commission found
that the Applicant had made false or misleading statements, it extended the
limitation period to 72 months as per s 52(5) of the EI Act. The
Applicant denies that she made any false or misleading statements and says that
the limitation period should not have been extended, as this was an abuse of
the Commission’s power.
[29]
The Applicant submits that she did not earn any
income attributed to her during the time she was in receipt of maternity
benefits (calculated at $1,746.00 for 19 weeks and $1,396.00 for 1 week) and
claims she provided evidence supporting this assertion. She says she did not
misrepresent her earnings and did provide enough evidence to demonstrate that
she did not earn income during this period. The Respondent’s submissions
asserting the opposite are consequently unfair and the Applicant says she should
not be faced with a penalty. Furthermore, the Respondent made an error of fact
by allocating income annually when the Applicant received income periodically,
and never at a point that fell within the maternity benefit period.
B.
Respondent
[30]
The Respondent submits that the SST-AD did not
err in denying the Applicant leave to appeal the SST- GD decision and that the
Decision reasonably addressed the issue of whether the Applicant had raised
grounds of appeal that bore a practical chance of success. The Respondent says
that the Applicant simply argued that the SST-GD had made an erroneous finding
of fact; this amounts to the Applicant asking the SST-AD to rehear her case and
to come to a different conclusion. The SST-AD concluded that the Applicant had
not presented a ground of appeal that had a reasonable chance of success, as
required by s 58 of the EI Act.
[31]
The Respondent argues that the Commission
properly allocated the Applicant’s earnings. As per s 35(2) of the EI
Regulations, earnings are “any pecuniary or
non-pecuniary income that is or will be received by a claimant from an employer
or any other person, including a trustee in bankruptcy.”
[32]
The Respondent says that the SST-GD’s decision
was also reasonable in confirming that the Commission had applied the law
governing reconsideration of claims, allocation of earnings, and warnings in
accordance with the EI Act and its regulations.
[33]
With regard to the statutory scheme governing reconsideration,
the Respondent submits that once the Commission is aware of an issue that
pertains to the qualification or entitlement to benefits of a claimant – which
includes undeclared earnings – it may, by virtue of s 52(5) of the EI Act,
initiate a reconsideration of the benefits received up to 72 months after a
claim for benefits is made. This time period allows the Commission to retrace
its steps and retroactively impose penalties: Canada (Attorney General) v
Landry, [1999] FCJ No 1872 at para 22.
[34]
The Respondent notes that in her application for
judicial review, the Applicant alleges for the first time that the Commission
was “statute barred” by s 52 to reconsider her claim after 36 months. This
argument was not raised before either of the SST divisions and is not relevant
in determining this judicial review.
[35]
Furthermore, the Applicant’s Record for this
judicial review contains new evidence that was not part of the material in possession
of the SST-AD when it rendered its Decision and is therefore inadmissible. The
only material that can be considered on judicial review is that which was
available to the decision-maker: Lemiecha (Litigation guardian of) v Canada
(Employment and Immigration), [1993] FCJ No 1333 (FCTD) at para 4; Canada
(Attorney General) v Merrigan, 2004 FCA 253. The new evidence includes a
copy of an email from the Calgary Real Estate Board confirming commissions and
copies of listing sheets from transactions with commissions earned.
[36]
In submissions on the statutory scheme governing
the issuance of warnings and penalties (including ss 38, 40 and 41.1 of the EI
Act), the Respondent submits that the Court has established that the onus
is initially on the Commission to prove, on a balance of probabilities, that a
claimant knowingly made a false or misleading statement. Once this is
established from the evidence, the onus shifts to the claimant to provide an
explanation that rebuts the inference that the false statements were knowingly
made: Canada (Attorney General) v Gates, [1995] FCJ No 736 at paras 6,
9; Nangle v Canada (Attorney General), 2003 FCA 210. The Respondent
submits that it was probable that the Applicant had generated or received some
of the $90,800 declared within the first five months of 2008 during which she
was receiving benefits. When the Applicant refused to provide additional
information that could have allowed the Commission to determine otherwise, this
probability increased. The Commission therefore acted judicially in imposing
the warning that it did and it was reasonable for the SST-GD to uphold this
conclusion.
VIII.
ANALYSIS
[37]
Having reviewed the record before me in this
application, and having heard the parties in open Court, I am convinced that
Ms. Auch did not receive monies during the benefits period and that she did
not, in fact, misrepresent the situation to the SST. This does not, of course,
render the decisions that found otherwise either unreasonable or procedurally
unfair. The Commission, the SST-GD and the SST-AD could only act upon the
information and submissions that Ms. Auch provided to them at the material
times, and on judicial review, those decisions have to be assessed on the basis
of the record that was before each tribunal. Strictly speaking, of course, I am
only reviewing the March 23, 2015 Decision of the SST-AD, but a fuller context
is required in order to understand what has happened here and how that Decision
came to be made.
[38]
In this motion, Ms. Auch focusses upon the
applicable limitation period. She points out that the 36 month limitation
period in s 52(1) of the EI Act had expired before the Respondent
commenced any action against her to reclaim benefits she had received. She
argues that, in order to overcome this hurdle, the Commission invented “a false and misleading statement or representation”
that she never made so that the Commission could use the 72 month limitation
period set out in s 52(5) of the Act. So this dispute centres upon whether Ms.
Auch could be said to have made a false and misleading statement. If she didn’t,
then the 36 month limitation period had expired and the SST had no right to try
and reclaim benefits paid. If she did make a false and misleading statement,
then the SST could reclaim those benefits.
[39]
In her correspondence with the SST, Ms. Auch has
been entirely consistent. She has repeatedly told them that she neither worked,
nor received monies from employment during the benefit period. The work and
monies at issue relate to Ms. Auch’s work as a real estate agent. Given this
consistency of Ms. Auch, how did the Commission conclude that a
misrepresentation occurred and that she did receive monies from the real estate
work during the benefits period?
[40]
In 2011, on the basis of information from CRA,
the Commission became aware that Ms. Auch had declared self-employment
earnings of $90,800 in her T-1 statement for the year 2008. Because the
benefits period ended on May 17, 2008, these monies could have been earned
either inside or outside the benefits period. The Commission did not know which
it was. So in November 2011 (approximately 41 months after Mr. Auch had
received her last benefit payment, and so outside the 36 month limitation period)
the Commission sent a letter to Ms. Auch at the address on her file and
requested additional information about her 2008 earnings. After receiving no
response from Ms. Auch, the Commission sent a follow-up letter in January 2012.
This letter was not answered.
[41]
The letters were not answered because Ms. Auch
had moved to a new address in Manitoba. There was no reason why Ms. Auch needed
to inform the Commission of this change of address. The time for receiving
benefits had past and there was no reason for her to expect that the Commission
would need to contact her.
[42]
Having heard nothing from Ms. Auch however, the
Commission issued a Record of Decision Violation and decided, on the basis of
the CRA information, that Ms. Auch had made a false and misleading statement
because she had not reported her 2008 earnings while she was in receipt of EI
benefits and because no documentation had been tendered to contradict the
Commission’s conclusions. As a result, and in accordance with the EI Regulations,
the earnings declared for 2008 were allocated (19 weeks at $1,746.00 and 1 week
at $ 1,396.00) which created and overpayment of $8,707.32.
[43]
The reason Ms. Auch had not reported these
earnings is that they were all made from real estate commissions in 2008 that she
had earned, and for work she had done, outside of the benefits period. The
reason she had not been able to explain this was that she had moved houses and,
as a result, never received the Commission’s letters. At this point in the
process, the Commission’s decision was procedurally unfair. It never
communicated its concerns to Mr. Auch or tried to find out why she didn’t
answer the letters. After 41 months, it should have been obvious that she could
have moved houses and the Commission could easily have found her present
address through CRA. Furthermore, the decision was also unreasonable and beyond
the limitation period. Ms. Auch had not, in fact, misrepresented anything.
[44]
It was not until March 2013 that Ms. Auch found
out what had happened and notified the Commission that she had never received
the letters. Quite properly, the Commission accepted this and allowed Ms. Auch
further time to provide additional information regarding her 2008 declared
earnings.
[45]
By letter dated June 11, 2013, Ms. Auch
confirmed to the Commission that she had moved to Manitoba and had not received
the Commission’s letters. She also told the Commission that she had not worked
or received a salary while she was on maternity leave. She explained that the
business income she had earned as a real estate agent in 2008 was earned after
the expiry of her maternity leave. All of this was true, but Ms. Auch did not
provide any documentation to corroborate her account. In fact, Ms. Auch sent
the same letter a second time in September 2013, and a third time on October
2013, but each time without any documentation to support that she had not
generated or earned any income while in receipt of maternity benefits. This, in
essence, is why the parties are before the Court: Ms. Auch’s failure to
corroborate with appropriate documentation what was, we now know, the truth.
[46]
On October 10, 2013, Ms. Auch filed a request
for reconsideration of the overpayment. By letter dated November 26, 2013 the
Commission acknowledged the request for reconsideration and requested proof
that she did not generate earnings while in receipt of EI benefits. That letter
read:
We are writing to let you know that we have
received on October 25, 2013 your Request for Reconsideration of the
decisions(s) made regarding your claim for Employment Insurance benefits.
We are now reviewing your claim and every
effort will be made to render a decision in writing within 30 days. We tried to
contact you to obtain additional information, unfortunately without success. It
is important that you contact the undersigned at Service Canada by fax with the
following information.
You stated that you were not self employed
or in receipt of self employment income during your employment insurance
benefit period June 7, 2007 to May 17, 2008. Please provide documentary proof
to show you were not self employed during this time in order to support your
statement. Please fax your response to us to 604-666-9350 before December 7[,]
2013, or within 10 days of the date of this letter. If we do not hear from you,
we will proceed with our review and a decision will be made with the
information on file.
[47]
Ms. Auch provided no response to this letter.
The Commission attempted to contact her by telephone on December 5, 2013 but
was unable to do so. Consequently, a letter was sent to Ms. Auch on December 6,
2013 advising her that her reconsideration request had been denied because she
had failed to provide any documentation to support her position that she did
not have self-employment income during the benefit period. Subsequently, in
January 13, 2014, the Notice of Debt was issued.
[48]
So the record is clear that Ms. Auch was fully
informed that she needed to provide supporting, corroborating documentation,
but she failed to do it. She says now that 2013 was a long time after 2008 and
she couldn’t easily access corroborating documentation. But the affidavit she
has filed with this application does not explain why not. It also does not
explain why, if she was having difficulties and wanted more time, she did not
contact the Commission and request it. After the change of address issue was
clarified, the Commission was quite prepared to allot Ms. Auch full scope to demonstrate
that she had not received earnings during the benefits period but, apart from
the assertions in her letter, she failed to provide any such evidence. She has
provided some evidence in her record for this application, so it is difficult
for the Court to understand why she could not have gone to the trouble earlier of
finding some documentation that would support her case before the Commission.
She said at the hearing before me that she thought her word should be enough.
But that is naïve and unconvincing.
[49]
Ms. Auch is an intelligent, professional woman
and highly articulate. She works in real estate. She knows that formalities
have to be observed and she was specifically told by the Commission that she
needed to provide corroborative documentation, and yet she failed to do so.
That is the nub of this application. Ms. Auch has produced no evidence, nor any
convincing explanation before the Court as to why she couldn’t provide the
corroborating documentation requested or why, if she was having difficulties
finding it, she didn’t contact the Commission and seek more time and advice on
what she could do to satisfy them on the issue of earnings.
[50]
Because there was no information before the
Commission to dispute the information from CRA, the Commission followed the EI
Regulations and made the allocations set out above. The burden of proof
was upon Ms. Auch to show that she had not received earnings during the
benefits period and, after being advised in writing of what was required, she
failed to provide information necessary to support her assertions. The
Commission also determined that a misrepresentation had occurred. This is because
the CRA information showed reported earnings for 2008 and Ms. Auch declined to
provide the information needed to show that she had not worked or received
income during the benefits period. Nor did she provide a reason why she couldn’t
do this. As a consequence, on a balance of probabilities, the Commission
concluded that her failure to provide the information requested meant that she
had earned and received income during the benefits period. Why else would she
not respond when asked to provide corroborating documentation?
[51]
Ms. Auch then appealed to the SST-GD who
confirmed the Commission’s approach and provided legal authorities for doing
so. In her appeal to the SST-AD, Ms. Auch failed to put forward any grounds of
appeal stipulated in s 58(1) of the Department of Employment and Social
Development Act. Consequently, that appeal had to be refused.
[52]
Ms. Auch now comes before the Court on a
judicial review basis. She swears that she did not receive earnings during the
benefit period and that she did not misrepresent this to the Commission. I
believe her, but unfortunately that does not assist her. She has failed to
demonstrate that the SST-AD (or indeed the Commission decision or the SST-GD decision)
lacked procedural fairness or was unreasonable. The simple fact is that she did
not discharge the onus upon her to provide the requested corroborating
documentation when it was needed by the Commission to determine whether she had
received earnings during the benefit period, and she has provided no convincing
explanation as to why she did not or could not have done this, or could not
have approached the Commission with any problems and seek more time to do so.
[53]
As a result, I can find no reviewable error in
the Decision before me and I have to dismiss this application. I do this
reluctantly because I believe Ms. Auch is being honest with the Court and that
she did not receive earnings during the benefit period. But she failed to
demonstrate this in the right way when she was asked to do so, so that she
cannot claim she has been dealt with unfairly. If she now has the corroborative
evidence to back up what she said to the Commission, she should at least
provide this to the Commission and ask if there is some way that her case can
be reconsidered on the basis of this evidence. Whether that can be done, or
should be done, is not a matter before me in this application so I can do no
more than suggest she approach the Commission to see what, if anything, can be
done at this point to rectify the situation.