Date: 20010205
Docket: A-686-99
Citation: 2001FCA6
CORAM: NOËL, J.A.
EVANS, J.A.
SHARLOW, J.A.
BETWEEN:
DAVID MORETTO
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
(By the Court, delivered at Vancouver,
British Columbia on February 5, 2001)
[1] The underlying issue in this case is the applicant's liability for a penalty of $5,535.00 imposed by the Commission on the ground that he had knowingly made false or misleading statements with respect to his claim for employment insurance benefits in 1995. The applicant's position is that, since he received no remuneration while he was working in a retail business that he owned, he did not realize that he was "employed" for the purpose of the Act, and accordingly did not knowingly provide a false or misleading statement when he answered "No" to the question on the reporting card that asked if he was working.
[2] This is the second judicial review application brought by the applicant in connection with this issue. The decision now sought to be reviewed (CUB34290A) was given further to the Judgment of this Court rendered on March 24, 1998, allowing the applicant's first application in part and referring the matter back for further consideration as follows:
The application is allowed in part only, that part of the decision of the Umpire relating to the penalty imposed on the applicant is set aside and the matter is referred to the Chief Umpire in order that it be decided by him or another umpire on the basis that the Board of Referees erred in law by not considering properly whether the statements made by the claimant were subjectively known to be false.
[3] Nevertheless, the Umpire who decided the matter further to this referral held that the Board of Referees had properly considered whether the statements made by the applicant were subjectively known to be false. He did so without prior notice or receiving any submission from either party. He said:
The only criticism which can be levelled at the Board's decision in the present case is that it did not use the precise terminology of Gates; most particularly the words, "subjective knowledge of falsity". However, as stated by the Court of Appeal in Roberts v. Canada (Employment and Immigration Canada) (A-595-84, May 9, 1985), "[h]earings before the Board and Board decisions are intended to be an informal process for resolving the problems of ordinary people, and their reasons should not be read microscopically."
Here the Board's reasons make it abundantly clear that while it understood Mr. Moretto's explanation for the false statements in question and gave due consideration to that explanation, it simply did not accept, given the circumstances and the evidence, that he was honestly confused when he answered "no" to the question "Did you work?". On the contrary, the Board's conclusion was that there was knowledge of falsity on the claimant's part and the penalty imposed was therefore appropriate. That was a finding entirely within the Board's jurisdiction as trier of fact and one which should not be disturbed on either appeal or review.
[4] The Umpire's conclusion is not one which was open to him since this Court had already ruled that the Board of Referees had failed to properly consider the subjective aspect of the applicant's statements. Whether the Umpire agreed with this decision or not, his only option was to give effect to it by allowing the appeal and referring the matter back to a Board of Referees on the basis set out by the Court of Appeal or, if he saw fit to do so, determine the issue for himself on the basis that the Board of Referees had committed the error identified by the Court of Appeal and dispose of the appeal accordingly. Rejecting the appeal on the basis that the Board of Referees had properly considered whether the statements made by the applicant were subjectively known to be false was not an option that was open to him.
[5] In light of the delays which have plagued this matter, the respondent has invited us to dispose of the merits of the case rather than send the matter back to the Umpire. This is something which we cannot do on judicial review (see Tétrault-Gaboury v. C.E.I.C., [1991] 2 S.C.R. 22 at 37, para. 28).
[6] The application for judicial review is allowed with costs, the decision of the Umpire is set aside and the matter is referred back to the Chief Umpire with a direction that the appeal be allowed and the matter be referred to a differently constituted Board of Referees and decided in accordance with the Judgment of the Court of Appeal of March 24, 1998.
(Sgd.) "Marc Noël"
J.A.
(Sgd.) "John M. Evans"
J.A.
(Sgd.) "K. Sharlow"
J.A.
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