Date: 19991215
Docket: A-378-98
CORAM: STONE, J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
- and -
ELLEN A. PYNE
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario
on Wednesday, December 15, 1999)
STONE J.A.
[1] We are all of the view that this section 28 application must succeed.
[2] It is clear that an Umpire, on an appeal of a decision of a Board of Referees which had in turn reviewed a decision of the Commission imposing an amount of penalty pursuant to subsection 33(1) of the Unemployment Insurance Act (the "Act"), possesses the jurisdiction to review such a discretionary decision, but there are evident limits to that jurisdiction.
[3] In the most recent decision of this Court on the point, these limits were described as follows1:
| A discretionary decision made on the basis of irrelevant considerations, or without regard for all the relevant considerations, must be disapproved and set aside by the appeal or review tribunal. The Court has repeatedly stated that discretionary decisions of the Commission do not fall outside that rule. |
| It is therefore settled today that the Board of Referees and the Umpire have jurisdiction to exercise the discretion that the Commission exercised in a judicially incorrect manner. |
[4] In the present case the Board of Referees found that there was not "sufficient evidence to overcome the general presumption that the statements [of the respondent] were knowingly made falsely".2 The learned Umpire, however, determined that he had jurisdiction to adjust the penalty and that this had been made clear by this Court in the case just referred to. There was in his view "extenuating circumstances" for reducing the penalty, namely, that the respondent had serious health problems, i.e. acute stress.3 Some evidence that this was so was presented to the Board of Referees.
[5] We are unable, with respect, to agree that the Umpire had jurisdiction in the matter. The Board of Referees itself found that evidence on the point was not "sufficient". According to the record, the fact that the respondent"s earnings had not been declared was drawn to her attention by the Commission sometime prior to the decision to allocate such earnings and to impose the penalty4, and the position that the alleged false reporting had occurred when she was "under doctor"s care for stress" was taken only after the penalty had been fixed 5. There is no evidence that the Commission was made aware of the claimed extenuating circumstances, and, accordingly, the Commission can hardly be criticized for not considering a piece of evidence that was not put forward before the amount of penalty was fixed. In our view, the discretionary decision imposing the amount of penalty was not made "on the basis of irrelevant considerations, or without regard for all the relevant considerations" and, therefore, that the discretion was not "exercised in a judicially incorrect manner." Hence, the Umpire possessed no jurisdiction to reduce the penalty.
[6] Nor, in our view, did the Umpire have jurisdiction to allow the respondent to repay the penalty as reduced by way of monthly installments. The Act simply does not confer such a power on an Umpire. The matter of arrangements for repayment of a penalty are clearly left for the Commission to make with a particular claimant.
[7] The section 28 application will be allowed, the decision of the Umpire of November 27, 1997 will be set aside and the matter will be referred back to the Chief Umpire or to an Umpire designated by him for redetermination on the basis that in the circumstances of the case the Umpire had no jurisdiction to reduce the penalty imposed by the Commission pursuant to subsection 33(1) of the Act or to allow the reduced penalty to be paid by way of monthly installments.
"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: WEDNESDAY, DECEMBER 15, 1999
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT
| OF THE COURT BY: STONE J.A. |
Delivered at Toronto, Ontario on Wednesday, December 15, 1999
APPEARANCES: Mr. Derek Edwards
No One Appeared on Behalf of the Respondent
| SOLICITORS OF RECORD: Morris Rosenberg |
| Deputy Attorney General of Canada |
176 The Explanade
Toronto, Ontario
| The Respondent on Her Own Behalf |
FEDERAL COURT OF APPEAL
Date: 19991215
Docket: A-378-98
BETWEEN:
| THE ATTORNEY GENERAL OF CANADA |
Applicant
Respondent
__________________
1 Canada (Attorney General) v. Dunham, [1997] 1 F.C. 462 (C.A.), per Marceau J.A. at p.p. 469, 470.
2 Applicant"s Application Record, at p. 63.
3 Ibid, at p. 93.
4 Ibid, at p.p. 30, 32, 33-4.
5 Ibid, at p. 35.
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