Date: 20001011
Docket: A-434-98
CORAM: LINDEN, J.A.
EVANS, J.A.
MALONE, J.A.
BETWEEN:
ARTHUR V. DONNELLY
Applicant
- and -
| THE ATTORNEY GENERAL OF CANADA |
Respondent
Heard at Calgary, Alberta on Tuesday, the 10th day of October, 2000.
Delivered from the Bench at Calgary, Alberta on Tuesday, the 10th day of October, 2000.
| REASONS FOR JUDGMENT BY: EVANS, J. |
Date: 20001011
Docket: A-434-98
CORAM: LINDEN, J.A.
EVANS, J.A.
MALONE, J.A.
BETWEEN:
ARTHUR V. DONNELLY
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
(Delivered from the Bench at Calgary, Alberta on Tuesday, October 10, 2000)
EVANS, J.
| _. This is an application for judicial review by Arthur V. Donnelly in which he asks the Court to set aside a decision of the Umpire dated May 21, 1998 (CUB 41304). The Umpire dismissed an appeal by Mr. Donnelly from a decision of the Board of Referees, dated August 28, 1997, upholding a penalty of $17,136.00 imposed on him by the Commission under the Unemployment Insurance Act, R.S.C. 1985, C.U.-1, subsection 33(1), for making statements in relation to a claim for benefit that he knew to be false or misleading. |
| _. The Board of Referees based its decision on the reporting cards completed by Mr. Donnelly and returned to the Commission. In response to the question on the card, "Did you work during the period of this report?", Mr. Donnelly answered "No", in respect of 21 weeks in which he was in fact employed, and in receipt of remuneration. It is not disputed that Mr. Donnelly is liable to repay overpayments made to him by the Commission for those weeks |
| _. While acknowledging that it had no power to reverse a lawful exercise by the Commission of its discretion to impose a penalty under subsection 33(1), the Board recommended that it be reduced from double the amount of the overpayments to a sum equal to the overpayments, because there had been some confusion on the part of Mr. Donnelly. The Commission rejected the Board's recommendation, as was its right, because it considered that, in all the circumstances, the amount of the penalty was justifiable. |
| _. Before the Umpire the applicant submitted that the penalty had been imposed contrary to the Commission's policy to waive penalties for claimants who voluntarily disclose their abuse before they become aware that they are the subject of an investigation by the Commission. Mr. Donnelly relied on a letter, dated May 3, 1994, in which he disclosed that he was working for a named employer, and on another letter, dated December 4, 1995, advising the Commission that he would like to meet with an official to discuss the "overpayment situation" and to "figure out a repayment plan if necessary." The Commission advised the applicant in April, 1996 that it had information that he had been working while receiving benefits. |
| _. The Umpire concluded that the Commission had not exercised its discretion unlawfully by imposing the penalty that it did. The Commission had not misapplied its policy to the facts of Mr. Donnelly's case. His letter of May 3, 1994 was incomplete because it did not disclose the full extent of his employment, and his letter of December 4, 1995 did not disclose abuse by him, because it referred only to overpayments and not to statements that he had made to the Commission that he knew to be false or misleading. |
| _. Mr. Donnelly advanced three grounds of attack on the Umpire's decision. First, he repeated the argument that the Umpire had rejected, namely, that the Commission had arbitrarily imposed the penalty on him, even though he fell within its "voluntary disclosure" waiver policy, adding, for the first time, that he was thereby also denied the right to equality guaranteed by section 15 of the Charter. |
| _. In our opinion, it was open to the Board of Referees and the Umpire on the evidence before them to conclude that Mr. Donnelly had not made the full and voluntary disclosure contemplated by the Commission's waiver policy. In view of this conclusion, the Charter can add nothing to the applicant's case, even if he were entitled, which he is not, to raise a constitutional issue before this Court that he did not raise before the Umpire. |
| _. Second, Mr. Donnelly submitted that the Board of Referees had no jurisdiction to render its decision of August 28, 1997 because a differently constituted Board had convened a month earlier to hear the appeal but, in order to allow him to prepare for the appeal, had granted the applicant's request for an adjournment. |
| _. Since the second Board heard the appeal in its entirety and based its decision on the evidence and submissions of the parties, it acted with procedural fairness and otherwise within its jurisdiction. |
| _. Third, the applicant submitted that the Umpire's reasons did not deal with every submission that he had made, and that the absence of a court reporter at the hearing was improper. A duty to give reasons does not require a decision maker to address every argument made by a litigant, regardless of whether it has any merit. Nor is it necessary for a record to be made of what transpired at a hearing, unless its absence effectively presents a litigant from exercising a right of appeal, or, as here, a right to apply for judicial review. |
| _. Mr. Donnelly alleges that there was no evidence to support the Umpire's finding that the applicant had admitted before the Board of Referees that he had made statements to the Commission that he knew to be false. However, whether or not this allegation is correct, there is ample evidence in the record to support the Board's view that Mr. Donnelly had indeed made knowingly false statements to the Commission on numerous occasions. When a claimant states on a reporting card that he or she has not worked or been paid during the reporting period, and the statements are false, it is reasonable to infer, in the absence of any satisfactory explanation, that the claimant knew that the statements were false. There was no such explanation in this case. |
| _. For these reasons the application for judicial review is dismissed. |
"John M. Evans"
J.A.
CALGARY, Alberta
October 11, 2000
FEDERAL COURT OF CANADA
FEDERAL COURT OF APPEAL
Date: 20001011
Docket: A-434-98
BETWEEN:
ARTHUR V. DONNELLY
Applicant
- and -
THE ATTORNEY GENERAL
OF CANADA
Respondent
REASONS FOR JUDGMENT
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| STYLE OF CAUSE: Arthur V. Donnelly v. |
| The Attorney General of Canada |
| PLACE OF HEARING: CALGARY, Alberta |
| DATE OF HEARING: October 10, 2000 |
| REASONS FOR JUDGMENT BY: EVANS, J. |
APPEARANCES:
| Mr. Arthur V. Donnelly FOR THE APPLICANT |
Ms. Rhonda Nahorniak FOR THE RESPONDENT
SOLICITORS OF RECORD:
| Mr. Arthur V. Donnelly FOR THE APPLICANT |
Calgary, Alberta
Mr. Morris Rosenberg
Deputy Attorney General
of Canada
| Ottawa, Ontario FOR THE RESPONDENT |
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