Date: 20000111
Docket: A-299-98
CORAM: STONE, J.A.
LÉTOURNEAU, J.A.
ROTHSTEIN, J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
- and -
EMA LEE
Respondent
Heard at Toronto, Ontario, Tuesday, January 11, 2000
Judgment delivered at Toronto, Ontario on Tuesday, January 11, 2000
REASONS FOR JUDGMENT OF THE COURT BY: STONE J.A.
Date: 20000111
Docket: A-299-98
CORAM: STONE, J.A.
LÉTOURNEAU, J.A.
ROTHSTEIN, J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
- and -
EMA LEE
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario
on Tuesday, January 11, 2000)
STONE J.A.
This is an application to review and set aside the decision of an Umpire, principally on the ground that he acted without jurisdiction or beyond jurisdiction in referring the matter of the amount of penalty assessed pursuant to section 33 of the Unemployment Insurance Act (the "Act") back to the Board of Referees (the "Board") for determination.
While it is arguable that the issue of amount of penalty was raised before the Board and that the Board did not expressly deal with that issue, it is also to be noted that prior to the decision of this Court in Canada (Attorney General) v. Dunham1, the power of a Board of Referees or of an Umpire to review the amount of penalty had not been clearly declared. The Board rendered its decision in this matter on December 20, 1995. The decision in Dunham, supra, was rendered September 27, 1996.
After the present matter was appealed to the Umpire and before he rendered his decision, the Commission reconsidered the amount of penalty in the light of the "extenuating circumstances" which the respondent had presented before the Board and the Umpire.2 These "circumstances"consisted chiefly of medical problem as well as pregnancy. As a result of that consideration, on August 13, 1997 the Commission further reduced the penalty from the sum of $3,740.00 to $3,000.00. The penalty had been originally set at $7,383.00. In making this reduction the Commission made explicit reference to this Court"s decision in Dunham, supra, as conferring jurisdiction on a Board of Referees and on an Umpire to alter the amount of penalty if the decision fixing it was made without regard to relevant factors.3 The Commission also indicated that the respondent"s file had been "carefully reviewed"4 and noted, particularly, that evidence of the respondent"s medical history was not known when the amount of penalty was fixed.
In our view, it would not appear that even if the matter were returned to the Board of Referees on the basis of the existing record, that the Board would be in a position to conclude that the important legal principle laid down in Dunham, supra, was not adhered to by the Commission in the particular circumstances of this case.
We would note as well that the Umpire"s decision that the Board write-off or waive the penalty is unsustainable as only the Commission may do so.5
The application will therefore be allowed, the decision of the Umpire of November 25, 1997 set aside and the matter referred back to the Chief Umpire or to an Umpire designated by him for reconsideration on the basis that the respondent"s appeal to the Umpire from the decision of the Board of Referees be dismissed.
"A. J. Stone"
J.A.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: THE ATTORNEY GENERAL OF CANADA |
Applicant
Respondent
DATE OF HEARING: TUESDAY, JANUARY 11, 2000
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT
| OF THE COURT BY: STONE J.A. |
Delivered at Toronto, Ontario on Tuesday, January 11, 2000
APPEARANCES: Mr. Derek Edwards
No One Appearing
| SOLICITORS OF RECORD: Morris Rosenberg |
| Deputy Attorney General of Canada |
FEDERAL COURT OF APPEAL
Date: 20000111
Docket: A-299-98
BETWEEN:
| THE ATTORNEY GENERAL OF CANADA |
Applicant
Respondent
__________________
1 (1997) 1 F.C. 462 (C.A.).
2 Applicant"s Application Record, at pp. 41-2 and p. 87.
3 Ibid., at p. 98.
4 Ibid.
5 See The Attorney General of Canada v. Idemudia (Court File No. A-9-98, Judgment rendered February 11, 1999).
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