Date: 20001128
Docket: A-387-99
CORAM: STRAYER J.A.
ROTHSTEIN J.A.
SEXTON J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
- and -
MARGARET RUMBOLT
Respondent
Heard at Toronto, Ontario, Monday, November 27, 2000
Judgment delivered at Toronto, Ontario,
on Tuesday, November 28, 2000
| REASONS FOR JUDGMENT BY: SEXTON J.A. |
| IN AGREEMENT: STRAYER J.A. |
| IN AGREEMENT: ROTHSTEIN J.A. |
Date: 20001128
Docket: A-387-99
CORAM: STRAYER J.A.
ROTHSTEIN J.A.
SEXTON J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
- and -
MARGARET RUMBOLT
Respondent
REASONS FOR JUDGMENT
SEXTON J.A.
| _. The Respondent applied for and received benefits under the Employment Insurance Act (the "Act"). The Commission found that the Respondent had falsely reported her earnings and imposed a penalty equal to 100% of the overpayment. |
| _. The Respondent appealed the Commission's decision with respect to the penalty to the Board of Referees (the "Board"). The Board dismissed the Respondent's appeal because it found that the Respondent had knowingly made false and misleading statements within the meaning of the Act in that she reported she had earned $164 during the benefit period when in fact she had earned $1840. The Respondent appealed to the Umpire who allowed the appeal and reduced the penalty to 25% of the overpayment. The Umpire held that: |
| The automatic imposition of a 100% penalty where there are "no extenuating circumstance" is not the exercise of a judicious discretion. If the legislation intended that a 100% penalty be imposed wherever there are "no extenuating circumstances", it would have said so. |
| _. The Umpire was referring to the decision of the Insurance Officer. He made no mention of the Reasons given by the Board. He also gave no reasons to indicate how he arrived at a penalty of 25% of the overpayment. |
| _. Section 38 of the Act gives to the Commission the power to impose a penalty when it is of the opinion that a claimant has made a representation that the claimant knew was false or misleading. The penalty imposed of 100% was well below the maximum limit set by Section 38. |
| _. Section 115 of the Act provides: |
| Appeal to umpire
|
Appel à un juge-arbitre
|
| 115. (1) An appeal as of right to an umpire from a decision of a board of referees may be brought by
(a) the Commission;
(b) a claimant or other person who is the subject of a decision of the Commission;
(c) the employer of the claimant; or
(d) an association of which the claimant or employer is a member.
Grounds of appeal
(2) The only grounds of appeal are that
(a) the board of referees failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
(b) the board of referees erred in law in making its decision or order, whether or not the error appears on the face of the record; or
(c) the board of referees based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.
|
115. (1) Toute décision d'un conseil arbitral peut, de plein droit, être portée
en appel devant un juge-arbitre par la Commission, le prestataire, son employeur, l'association dont le prestataire ou l'employeur est membre et les autres personnes qui font l'objet de la décision.
Moyens d'appel
(2) Les seuls moyens d'appel sont les suivants :
a) le conseil arbitral n'a pas observé un principe de justice naturelle ou a autrement excédé ou refusé d'exercer sa compétence;
b) le conseil arbitral a rendu une décision ou une ordonnance entachée d'une erreur de droit, que l'erreur ressorte ou non à la lecture du dossier;
c) le conseil arbitral a fondé sa décision ou son ordonnance sur une conclusion de fait erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des éléments portés à sa connaissance.
|
| _. The Commission found there to be no extenuating circumstances. It had the discretion to impose a penalty which suited the circumstances of the case and it did so. We are unable to conclude that the Commission exercised its discretionary power in a non-judicial manner or that it acted in a perverse or capricious manner without regard to the material before it. |
| _. Consequently, we agree that the Board was correct in upholding the decision of the Commission and we see no basis for the Umpire's interference with the Commission's decision. |
| _. We therefore allow this application and quash the decision of the Umpire. |
| "I agree" "Marshall Rothstein" |
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: A-387-99
| STYLE OF CAUSE: THE ATTORNEY GENERAL OF CANADA |
Applicant
Respondent
DATE OF HEARING: MONDAY, NOVEMBER 27, 2000
PLACE OF HEARING: TORONTO, ONTARIO
| REASONS FOR JUDGMENT BY: SEXTON J.A. |
| IN AGREEMENT: STRAYER J.A. |
| IN AGREEMENT: ROTHSTEIN J.A. |
| DATED: TUESDAY, NOVEMBER 28, 2000 |
APPEARANCES: Mr. A. Chamberlain
For the Applicant
Ms. M. Rumbolt
The Respondent on Her Own Behalf
| SOLICITORS OF RECORD: Morris Rosenberg |
| Deputy Attorney General of Canada |
Toronto, Ontario
M6N 4Y2
| The Respondent on Her Own Behalf |
FEDERAL COURT OF APPEAL
Date: 20001128
Docket: A-387-99
BETWEEN:
| THE ATTORNEY GENERAL OF CANADA |
Applicant
Respondent
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