Date: 19981201
Docket: A-171-98
MONTRÉAL, QUEBEC, THE 1st DAY OF DECEMBER 1998
CORAM: THE HONOURABLE MR. JUSTICE PRATTE
THE HONOURABLE MADAME JUSTICE DESJARDINS
THE HONOURABLE MR. JUSTICE DÉCARY
BETWEEN: ROBERT DEMERS
Applicant
AND
CANADA EMPLOYMENT INSURANCE COMMISSION
Respondent
AND
ATTORNEY GENERAL OF CANADA
Third Party
J U D G M E N T
The application for judicial review is allowed, the impugned decision is quashed insofar as it affirms the imposition of a penalty on the applicant and the matter is referred back to the Chief Umpire or an umpire designated by him to determine whether the Board of Referees committed an error justifying his or her intervention when it affirmed the Commission"s decision to impose a penalty on the applicant, as a penalty cannot be imposed under subsection 33(1) of the Act unless the claimant has made a representation that the claimant "knew" was false or misleading, which means that no penalty can be imposed on a claimant who made a false representation unless it is determined that in that case the claimant acted in bad faith, or in other words, dishonestly (see the decisions of this Court in Canada v. Gates , [1995] 3 F.C. 17, and Moretto v. Canada (Vancouver, March 24, 1998, A-667-96)).
Louis Pratte
J.A.
Certified true translation
M. Iveson
Date: 19981201
Docket: A-171-98
Coram: THE HONOURABLE MR. JUSTICE PRATTE
THE HONOURABLE MADAME JUSTICE DESJARDINS
THE HONOURABLE MR. JUSTICE DÉCARY
Between: ROBERT DEMERS
Applicant
AND:
CANADA EMPLOYMENT INSURANCE COMMISSION
Respondent
AND:
ATTORNEY GENERAL OF CANADA
Third Party
Hearing held at Montréal on Tuesday, December 1st, 1998
Judgment delivered at Montréal on Tuesday, December 1st, 1998
REASONS FOR DECISION BY: THE HONOURABLE MR. JUSTICE PRATTE
Date: 19981201
Docket: A-171-98
CORAM: THE HONOURABLE MR. JUSTICE PRATTE
THE HONOURABLE MADAME JUSTICE DESJARDINS
THE HONOURABLE MR. JUSTICE DÉCARY
BETWEEN: ROBERT DEMERS
Applicant
AND:
CANADA EMPLOYMENT INSURANCE COMMISSION
Respondent
AND
ATTORNEY GENERAL OF CANADA
Third Party
REASONS FOR DECISION
(Delivered from the bench at Montréal
on Tuesday, December 1st, 1998)
PRATTE J.A.
[1] We are all of the view that the impugned decision must be quashed on the ground that the Umpire failed to give an opinion on one of the issues before the Umpire, namely whether the Board of Referees erred when it affirmed the Commission"s decision to impose a penalty of $4,068.00 on the applicant for false and misleading representations.
[2] In our view, the applicant"s contention that the Umpire should have quashed the Board of Referees" decision because the latter did not really consider the question whether the applicant was entitled to the exception provided in subsection 43(2) of the Regulations, is not sound. Despite the terseness of its decision, we consider that the Board of Referees did give its opinion on this question.
[3] The application for judicial review will accordingly be allowed, the impugned decision will be quashed insofar as it affirms the imposition of a penalty on the applicant and the matter will be referred back to the Chief Umpire or an umpire designated by him to determine whether the Board of Referees committed an error justifying his or her intervention when it affirmed the decision of the Commission to impose a penalty on the applicant, as a penalty cannot be imposed under section 33(1) of the Act unless the claimant has made a representation that the claimant "knew" was false or misleading, which means that no penalty can be imposed on a claimant who made a false representation unless it is determined that in that case the claimant acted in bad faith, or in other words, dishonestly (see the decisions of this Court in Moretto v. Attorney General of Canada , Vancouver, March 24, 1998 in A-667-96 and in Canada v. Gates, [1995] 3 F.C. 17).
Louis Pratte
J.A.
Certified true translation
M. Iveson
FEDERAL COURT OF APPEAL
Date: 19981201
Docket: A-171-98
Between: ROBERT DEMERS
Applicant
AND
CANADA EMPLOYMENT
INSURANCE COMMISSION
Respondent
AND
ATTORNEY GENERAL OF CANADA
Third Party
REASONS FOR DECISION
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: A-171-98
STYLE OF CAUSE: ROBERT DEMERS
Applicant
AND
CANADA EMPLOYMENT INSURANCE COMMISSION
Respondent
AND
ATTORNEY GENERAL OF CANADA
Third Party
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: December 1st, 1998
REASONS FOR DECISION OF THE COURT (THE HONOURABLE MR. JUSTICE PRATTE, THE HONOURABLE MADAME JUSTICE DESJARDINS AND THE HONOURABLE MR. JUSTICE DÉCARY)
DELIVERED FROM THE BENCH BY: Pratte J.A.
DATED: December 1st, 1998
APPEARANCES: André Drouin for the applicant
Francisco Couto/ for the respondent
S. Létourneau
- 2 -
SOLICITORS OF RECORD:
André Drouin for the applicant
LaSalle, Quebec
Morris Rosenberg for the respondent
Deputy Attorney General of Canada
Montréal, Quebec
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