Date: 19980611
Docket: A-737-97
Coram: MARCEAU J.A.
DÉCARY J.A.
LÉTOURNEAU J.A.
Between:
ABDEL KARIM EL MAKI
Applicant
AND
CANADA EMPLOYMENT INSURANCE COMMISSION
Respondent
AND
DEPUTY ATTORNEY GENERAL OF CANADA
Third Party
Hearing held at Montréal, Quebec on Thursday, June 11, 1998.
Judgment delivered at Montréal, Quebec on Thursday, June 11, 1998.
REASONS FOR JUDGMENT BY : LÉTOURNEAU J.A.
Date: 1990611
Docket: A-737-97
Coram: MARCEAU J.A.
DÉCARY J.A.
LÉTOURNEAU J.A.
Between:
ABDEL KARIM EL MAKI
Applicant
AND
CANADA EMPLOYMENT INSURANCE COMMISSION
Respondent
AND
DEPUTY ATTORNEY GENERAL OF CANADA
Third Party
REASONS FOR JUDGMENT
LÉTOURNEAU J.A.
[1] We are all of the view that this application for judicial review should be allowed in part.
[2] The Umpire was justified in intervening because it is clear from the decision of the Board of Referees that the Board ignored important evidence in the record which makes their conclusion unreasonable, such conclusion being that there was no conclusive evidence that the applicant was actively participating in the business which was operating out of the family home while he was receiving unemployment insurance benefits. This evidence included the following: the applicant financed the start-up of the business which he said belonged to his wife, he was a director of the business, he had full authority to represent the company in its banking, he worked in it every night and on weekends, he received goods for the business during its hours of operation, and he returned to the business right after the end of his benefit period and started to pay himself a weekly salary of $300.
[3] The Board of Referees was entitled to reject the evidence after weighing and assessing it, but could not ignore it (Boucher v. Attorney General of Canada, F.C.A. No. A-271-96 and A-272-96, October 17, 1996; Lépine v. Canada Employment and Immigration Commission and Deputy Attorney General of Canada, F.C.A. No. A-78-89, February 16, 1990; Rancourt v. Canada Employment and Immigration Commission and Deputy Attorney General of Canada, F.C.A. No. A-355-96, October 30, 1996).
[4] Even though the Umpire has the power to make the decision which should have been made when setting aside the decision of a Board of Referees, this can only be done when the evidence in the record is sufficiently clear and when it is does not lend itself to subjective interpretation and assessment.
[5] In the case at bar, we are satisfied that the Umpire was justified in giving the decision that the Board of Referees should have given, as he did, and in concluding that the claimant was regarded as working a full working week pursuant to paragraph 43(1) (a) of the Unemployment Insurance Regulations and had not discharged the burden of proving that he was covered by the exception provided in subsection (2) of that section.
[6] In setting aside the decision of the Board of Referees with regard to the unemployment status of the claimant, the Umpire was nevertheless required to rule as to this portion of the decision of the Commission, which the Board of Referees had not had to dispose of in light of its conclusion, to wit the falsehood of the statements that the claimant made during the benefit period at issue.
[7] The decision of the Umpire is laconic on this issue and does not indicate whether the Umpire considered whether or not the claimant knew subjectively that the statements he made were not the truth.
[8] The application for judicial review will accordingly be allowed in part, the portion of the decision of the Umpire upholding the penalties imposed on the claimant by the Commission for false or misleading statements will be set aside and the matter referred back to the Chief Umpire or an umpire designated by him to dispose of the appeal of the decision of the Board of
Referees by allowing it but returning the case to the Board of Referees to decide as to the validity of the penalties imposed by the Commission.
Gilles Létourneau
J.A.
Certified true translation
M. Iveson
Date: 19980611
Docket: A-737-97
Between:
ABDEL KARIM EL MAKI
Applicant
AND
CANADA EMPLOYMENT INSURANCE COMMISSION
Respondent
AND
DEPUTY ATTORNEY GENERAL OF CANADA
Third Party
REASONS FOR JUDGMENT
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: A-737-97
STYLE OF CAUSE: ABDEL KARIM EL MAKI
Applicant
AND
CANADA EMPLOYMENT INSURANCE COMMISSION
Respondent
AND
DEPUTY ATTORNEY GENERAL OF
CANADA
Third Party
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: June 11, 1998
REASONS FOR JUDGMENT OF THE COURT (THE HONOURABLE MR. JUSTICE MARCEAU, THE HONOURABLE MR. JUSTICE DÉCARY AND THE HONOURABLE MR. JUSTICE LÉTOURNEAU)
DELIVERED FROM THE BENCH BY: The Honourable Mr. Justice Létourneau
Dated: June 11, 1998
APPEARANCES:
Claudine Barabé for the applicant
Claude Provencher for the respondent and third party
SOLICITORS OF RECORD:
Campeau, Ouellet, Nadon, Barabé, Cyr, De Merchant,
Bernstein, Cousineau, Heap, Palardy
Montréal, Quebec for the applicant
George Thomson
Deputy Attorney General of Canada
Ottawa, Ontario for the respondent and third party
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