Date: 199991206
Docket: A-532-98
Ottawa, Ontario, Monday, December 6, 1999
LÉTOURNEAU J.A.
NOËL J.A.
Between:
THE ATTORNEY GENERAL OF CANADA,
Plaintiff,
- and -
SIMON LANDRY,
Defendant.
JUDGMENT
The application for judicial review is allowed, the decision of the umpire is quashed and the matter is referred back to the chief umpire or an umpire designated by him to be disposed of by allowing the Commission"s appeal and directing the board of referees to proceed with a re-hearing.
In the circumstances, no costs are awarded.
Certified true translation
Bernard Olivier, LL. B.
Date: 199991206
Docket: A-532-98
LÉTOURNEAU J.A.
NOËL J.A.
Between:
THE ATTORNEY GENERAL OF CANADA,
Plaintiff,
- and -
SIMON LANDRY,
Defendant.
Hearing held at Montréal, Quebec, Thursday, November 25, 1999.
Judgment rendered at Ottawa, Ontario, Monday, December 6, 1999.
REASONS FOR JUDGMENT BY: DÉCARY J.A.
CONCURRED IN BY: LÉTOURNEAU J.A.
NOËL J.A.
Date: 199991206
Docket: A-532-98
LÉTOURNEAU J.A.
NOËL J.A.
Between:
THE ATTORNEY GENERAL OF CANADA,
Plaintiff,
- and -
SIMON LANDRY,
Defendant.
REASONS FOR JUDGMENT
DÉCARY J.A.
[1] On September 8, 1993 a work sharing agreement was concluded, as authorized by s. 24 of the Unemployment Insurance Act, R.S.C. 1985, c. U-1, as amended ("the Act" " since replaced by the Employment Insurance Act , S.C. 1996, c. 23), between the employer (Socomar Inc.), its employees (including the defendant) and the Canada Employment and Immigration Commission ("the Commission"). That agreement covered the period from September 12, 1993 to March 12, 1994 and the employer undertook to reduce the number of hours worked by at least 20% during any week in which the employees made an application for work sharing benefits. The defendant acted as the employees" representative in discussions with the Commission and the employer.
[2] On September 7, 1993 the defendant made an initial application for work sharing benefits. Under the agreement the defendant was only to work 8 or 16 hours each week. From September 12, 1993 to March 12, 1994 the defendant reported on his claimant report cards that he worked 8 or 16 hours and was thus off work for 32 or 24 hours each week. The defendant received benefits throughout the period.
[3] Following an investigation by the R.C.M.P. and the Commission the latter learned in September 1995 that the employer, in collusion with its employees, never intended to observe the terms of the agreement and the employees had continued to work full weeks as they were doing before the agreement began.
[4] On March 29, 1996 the Commission rendered what it described as a [TRANSLATION] "decision . . . made pursuant to ss. 24 and 86 of the Act" that the agreement was [TRANSLATION] "void and rescinded since the date it took effect", namely September 12, 1993, and it informed the employer and the defendant, in his capacity as employee representative.
[5] On December 9, 1996 the Commission cancelled the defendant"s benefit period on the ground that there had been no work stoppage within the meaning of s. 37 of the Unemployment Insurance Regulations. This decision resulted in an overpayment of $7,256. On the same day, the Commission imposed a penalty of $3,336 on the defendant for false and misleading statements.
[6] The defendant appealed these two decisions to a board of referees, which on December 4, 1997 allowed the appeal.
[7] On July 28, 1998 the umpire affirmed the decision of the board of referees: hence the instant application for judicial review.
[8] The board of referees and the umpire said that in their opinion the Commission did not have the power to cancel the work sharing agreement. The umpire concluded that s. 24(2) of the Act did not give the Commission the power to cancel such an agreement and that clause 12 of the said agreement allowed the Commission to terminate the agreement only [TRANSLATION] "from the Saturday following the day on which notice of rescission is given to the other parties".
[9] Section 24(1) and (2) of the Act reads:
| 24. (1) Avec l"approbation du gouverneur en conseil, la Commission peut prendre des règlements prévoyant le versement, sous réserve du paragraphe (4), de prestations pour
travail partagé aux prestataires qui remplissent les conditions requises pour recevoir des prestations en vertu de la présente loi et qui sont employés en vertu d"un accord de travail partagé qu"elle a approuvé par une directive spéciale ou générale pour l"application du présent article, et notamment des règlements:
. . . . .
(2) Les directives spéciales ou générales de la Commission, approuvant ou désapprouvant un accord de travail partagé pour l"application du paragraphe (1), ne sont pas susceptibles d"appel en vertu des articles 79 ou 80.
|
|
| 24. (1) The Commission may, with the approval of the Governor in Council, make regulations providing for the payment, subject to subsection (4), of work sharing benefits to claimants who are qualified to receive benefits under this Act and are employed under a work sharing agreement that has been approved for the purposes of this section by special or general direction of the Commission including, without restricting the generality of the foregoing, regulations,
. . . . .
(2) No special or general direction of the Commission approving or disapproving any work sharing agreement for the purposes of subsection (1) is subject to appeal under section 79 or 80.
|
|
and clause 12 of the agreement reads:
| 12. (1) The COMMISSION may terminate this agreement at any time if the EMPLOYER or the EMPLOYEES do not observe any of the terms, conditions or obligations applicable to them. |
| (2) Either party to this agreement may terminate the agreement at any time from the Saturday following the day on which notice of rescission is given to the other parties. |
| (3) If the WORK SHARING UNIT resumes a normal full-time work schedule for six consecutive weeks this agreement shall terminate automatically at the end of the sixth consecutive week of that normal full-time work schedule. |
(Plaintiff"s record, p. 37)
[10] In this Court the Commission argued that the umpire did not have jurisdiction to rule on the validity of the "decision" of March 29, 1996 since s. 24(2) of the Act provided that such a decision was not subject to appeal and that in any case the defendant, in his notice of appeal, had not challenged this "decision".
[11] For the reasons I will shortly state, this discussion is a non-issue, but I feel I should indicate that in any case the Commission"s argument does not stand up to analysis.
[12] In arguing that the "decision" of March 29, 1996 is not subject to appeal, the Commission"s counsel relied on s. 24(2) of the Act. Like the umpire, I feel that this is misinterpreting the subsection in question. That subsection applies to the decision made by the Commission at the outset when it approved or rejected a work sharing agreement application. It does not apply to decisions the Commission has to make once the agreement is in place, such as terminating the agreement pursuant to clause 12.
[13] Alternatively, counsel argued that if there was no formal appeal against the "decision" of March 29, 1996 the board of referees could not rule on the validity of that "decision". This argument is procedural. The "decision" in question is a decision of general application sent to the employer and the [TRANSLATION] "employee representative". It was not sent to the other employees. It is true that by chance in the case at bar the defendant was the employee representative, but the real nature of a decision in legislation cannot be defined by chance. What is more, the "decision" did not inform the employees who learned of the consequences it had for their right to benefits or their repayment obligations. The "decision" only becomes concrete and specific when a claimant is formerly advised of the Commission"s decision to claim an overpayment from him and impose a penalty on him.
[14] I am not saying that there cannot be an immediate appeal from the "decision". I am saying that the claimant might well expect to know what is awaiting him at the end of the line before initiating the appeal process. When the Commission is proceeding step by step, as in the case at bar, it would be unfair and unrealistic to compel a claimant to appeal even before a decision produces any specific consequences for him. This reasoning is no different from that followed by this Court in Brien v. Canada Employment and Immigration Commission (1997), 216 N.R. 111, and in Canada (Attorney General) v. Rouleau (1997), 223 N.R. 146, when it found that a claimant"s deadline for appealing a decision by the Commission after reconsideration of a claim (s. 43 of the Act) did not run so long as the claimant was not notified of the amount of the overpayment.
[15] Counsel for the Commission argued that even if that was the case, in the case at bar no appeal was brought from the "decision" of March 29, 1996. This argument is based on a procedural formalism which fortunately no longer applies. The "decision" of March 29, 1996 is at the heart of the discussion which took place before the board of referees on December 2, 1997. At the beginning of the written argument which it had sent the board of referees, and which was dated on October 31, 1997, the Commission itself wrote that:
| The claimant"s appeal turns on the following two points: |
| 1. Cancellation of the benefit period which began on September 12, 1993, |
| 2. Imposition . . . of a penalty . . . |
(Plaintiff"s record, at p. 65)
In these circumstances, the Commission is hardly in a position to argue that the "decision" of March 29, 1996, which it said entailed cancellation of the agreement and so of the benefit period, could not be considered by the board of referees.
[16] This leads me to the non-issue to which I referred earlier, and the reason that I have put the word "decision" in quotation marks throughout these reasons when I was referring to the decision of March 29, 1996.
[17] In my opinion, it does not matter whether the work sharing agreement was formally cancelled by the Commission and it appears to me that the discussion between counsel for the parties over whether the "decision" to cancel may be challenged by appeal to the board of referees, by an application to the Federal Court for judicial review or by an action for a declaration of nullity in the Superior Court of Quebec is futile.
[18] There are two questions the board of referees must answer, one dealing with the work stoppage and the other with the penalty. In a case like the one at bar, the work sharing agreement serves as the background to the discussion. It may not be disregarded since it is what permits the payment of benefits to claimants outside the usual provisions. The board of referees must necessarily consider the actions of the employer and employees at the time the agreement was negotiated and during the benefit period at issue. If the board of referees comes to the conclusion that the employer or employees obtained the Commission"s approval at the outset by misrepresentations, or that at some point they failed to perform the respective duties imposed on them by the agreement, it must rule accordingly, in the first case as if there had never been an agreement, and in the second case as if the agreement terminated when the duties were not performed.
[19] It is worth noting that under s. 24(1) of the Act the payment of work sharing benefits can only be made "to claimants who are qualified to receive benefits under this Act and are employed under a work sharing agreement" (my emphasis), and that under s. 91 of the Unemployment Insurance Regulations "[w]ork sharing benefits are payable to a claimant who is employed in work sharing employment for each week of unemployment that falls in a benefit period established for him and, subject to this Part [dealing with work sharing benefits], the Act and any Regulations made thereunder apply to the claimant, with such modifications as the circumstances require" (my emphasis). For the claimant to be entitled to benefits, the existence of a work sharing agreement will not suffice. He must meet the other requirements of the Act and the Regulations and must be employed under the agreement. If the evidence so indicated, the board of referees could decide that benefits were not payable solely because the claimant did not meet the other requirements of the Act or Regulations or had not complied with the terms of the agreement.
[20] Counsel for the claimant dwelt at length on clause 12 of the agreement, covering "rescission" of the agreement. That clause allows the Commission to [TRANSLATION] "terminate" the agreement for cause at any time if the employer or employees do not perform their obligations (clause 12(1)) and each party to "terminate" the agreement for any reason whatever by giving notice to that effect, the rescission to take effect the following Saturday (clause 12(2)).
[21] Clause 12 is of no assistance in the case at bar, since the agreement had already expired at the time the Commission discovered what it alleged was fraud on the part of the employer or employees. I am not sure it was necessary, in such circumstances, for the Commission to "decide" that in its opinion the agreement was "void and rescinded". Cancellation is no longer possible since the agreement has expired and the fact that it is void is more a finding of fact than a conclusion of law. This finding of fact will lead the Commission to examine the benefit application again. If as in the case at bar it decides to claim an overpayment and impose a penalty, and if the claimant challenges this decision, it will be up to the board of referees to determine whether the finding of fraud arrived at by the Commission was correct. In short, the board of referees is not in any way bound by the Commission"s "decision" not to recognize the agreement and it is for the board of referees to decide, for the purposes of the appeal before it, whether the claimant may rely on the agreement and, if so, whether he complied with its requirements.
[22] Any suggestion that once the agreement has expired and clause 12 consequently become inapplicable the Commission is bound by the agreement and could no longer rely on its substantive defects must be rejected forthwith. It goes without saying, in present-day administration of employment insurance cases, that the Commission cannot check everything at the time it happens. The case at bar is an instance of this. It is precisely for these reasons that the Act allows the Commission to "rescind or amend . . . any decision given in any particular claim for benefit" (s. 86 ) and provides significant delays of between thirty-six months and seventy-two months (ss. 33(4), and 43(1) and (6)), to allow the Commission to retrace its steps and retroactively impose penalties. So long as these delays are observed the Commission can certainly question the validity of a work sharing agreement even if the agreement has in fact expired.
[23] In the case at bar the discussion was so poorly conducted before the board of referees and then before the umpire that the only solution is to start over from scratch before the board of referees, which will have to decide the appeal in light of these reasons.
[24] The application for judicial review should be allowed, the decision of the umpire quashed and the matter referred back to the chief umpire or an umpire designated by him to be disposed of by allowing the Commission"s appeal and ordering the board of referees to proceed with a re-hearing.
[25] In the circumstances, no costs should be awarded.
I concur.
Gilles Létourneau J.A.
I concur.
Marc Noël J.A.
Certified true translation
Bernard Olivier, LL. B.
FEDERAL COURT OF APPEAL
APPEAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| STYLE OF CAUSE: ATTORNEY GENERAL OF CANADA |
- and -
SIMON LANDRY
| PLACE OF HEARING: MONTRÉAL, QUEBEC |
| DATE OF HEARING: NOVEMBER 25, 1999 |
| REASONS FOR JUDGMENT OF THE COURT (DECARY, LÉTOURNEAU AND NOËL JJ.A.) |
APPEARANCES:
| Francisco Couto for the plaintiff |
| William De Merchant for the respondent |
SOLICITORS OF RECORD:
| Morris Rosenberg for the plaintiff |
Deputy Attorney General of Canada
| Campeau, Ouellet, Nadon et Associés for the respondent |
Montréal, Quebec
Date: 199991206
Docket: A-532-98
Ottawa, Ontario, Monday, December 6, 1999
LÉTOURNEAU J.A.
NOËL J.A.
Between:
THE ATTORNEY GENERAL OF CANADA,
Plaintiff,
- and -
SIMON LANDRY,
Defendant.
ORDER
The plaintiff"s application to delete from the defendant"s record the document [TRANSLATION] "Employment Programs and Services", which was not filed before the umpire, and which the defendant attached to his record without first requesting the Court"s leave to do so, is dismissed. Although counsel for the defendants acted very rashly and the Court would ordinarily refused to allow this document to be filed, the fact that this is (according to what was stated at the hearing) a standard case and the document, which is public, is issued by the Canada Employment and Immigration Commission, has induced the Court to be tolerant.
"G.L."
"M.N."
Certified true translation
Bernard Olivier, LL. B.
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