A-6-97
MONTRÉAL, QUEBEC, THE 18TH DAY OF SEPTEMBER, 1997
| CORAM: THE HONOURABLE MR. JUSTICE MARCEAU |
| THE HONOURABLE MR. JUSTICE MacGUIGAN |
| THE HONOURABLE MADAM JUSTICE DESJARDINS |
| BETWEEN: THE ATTORNEY GENERAL OF CANADA, |
Applicant
Respondent
J U D G M E N T
The application is allowed, the decision of the umpire is set aside and the application is sent back to the chief umpire for reconsideration by him or by another umpire appointed by him, on the presumption that the Board of Referee"s decision approving the Commission"s determination shall be restored.
Certified true translation
Christiane Delon
A-6-97
| CORAM: THE HONOURABLE MR. JUSTICE MARCEAU |
| THE HONOURABLE MR. JUSTICE MacGUIGAN |
| THE HONOURABLE MADAM JUSTICE DESJARDINS |
THE ATTORNEY GENERAL OF CANADA,
Applicant
- and -
SIMONE GIRARD,
Respondent
Hearing held in Montréal, Quebec, Thursday, September 18, 1997.
Judgment rendered at the hearing, Thursday, September 18, 1997.
REASONS FOR JUDGMENT OF THE COURT BY: MARCEAU J.A.
A-6-97
| CORAM: THE HONOURABLE MR. JUSTICE MARCEAU |
| THE HONOURABLE MR. JUSTICE MacGUIGAN |
| THE HONOURABLE MADAM JUSTICE DESJARDINS |
THE ATTORNEY GENERAL OF CANADA,
Applicant
- and -
SIMONE GIRARD,
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Pronounced at the hearing in Montréal, Quebec,
Thursday, September 18, 1997)
MARCEAU J.A.
Here now is the other application for judicial review of this decision by an umpire, rendered under the Unemployment Insurance Act on October 8, 1996, that was at issue in application A-51-97. It has to do with the second aspect of the decision. After ruling that the sums received as overpayment by the claimant (the respondent herein) should be allocated for the purposes of establishing this repayment debt as the Commission had determined, under subsection 58(9) of the Unemployment Insurance Regulations, the umpire went on to say:
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However, when the Commission informed the claimant that this re-examination of the file under subsection 43(1) of the Act resulted in an overpayment, it did not notify her of the amount. Now, it is clear law that in order to meet the strict requirements of subsection 43(1), the Commission must not only calculate the sum paid but also inform the claimant thereof, which it failed to do in this case. ... |
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In the circumstances, the Commission"s decision is unlawful since it is in violation of the requirements of the Act. I am therefore intervening to write off the amount of the overpayment. |
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It seems clear to us that the umpire could not take upon herself to rule on the problem of whether the requirements of subsection 43(1) of the Act had been fulfilled, a problem that was not before her since it had never been raised before the Board of Referees and any consideration of it would of course have resulted in additional ad hoc evidence.1
It also seems clear to us that the umpire, who had just declared the Commission"s decision unlawful, is not using the phrase "write off" in its strict meaning of "deduction" or "remittance"; otherwise, it would be necessary to point out that the true write-off of a repayment debt resulting from an overpayment is not within the jurisdiction of an umpire.2
Finally, counsel for the applicant [sic] had to formally acknowledge at the beginning of his submissions, first, that, contrary to what the umpire thought, his client had indeed been notified of the amount of her repayment debt within the 36 months given the Commission to satisfy the requirements of subsection 43(1) of the Act, and second, that he was not challenging the accuracy of the amounts as then established, assuming that the mode of allocation then adopted was indeed the one that should have been applied. What counsel was attempting to argue was that these amounts could subsequently have been varied as a result of his client"s apparent right to obtain an extension of her benefit period, which would have resulted in some set-off up to the amounts to which she was entitled. However, counsel ultimately conceded that what he was raising could not come within the jurisdiction of this Court in the context of the appeal on which the Court had to adjudicate.
It is therefore unnecessary, for the purposes of disposing of this application, to rule on the central problem raised by the application in terms of the interpretation of subsection 43(1) of the Act, namely, whether the requirements for triggering the power of re-examination that the Commission is given by subsection 43(1) include a notice to the claimant made within 36 months following the time when the benefits were paid, which includes not only the result of the re-examination attesting the receipt of benefits that were not owing and stating all the information needed to calculate the overall amount but also the actual figure for the overpayment established by the calculation. We know that this Court, in two recent decisions rendered together on the basis of the same reasons, seems inclined to answer the problem in the affirmative,3 even though only indirectly, since the precise question was not before it in that instance. In our opinion, however, this obiter position might appropriately be re-examined when the occasion arises, since we could see, in light of the facts in the case at bar, that this is a requirement without a specific purpose which could actually become hard to reconcile with the requirements of practice where the mode of allocation or the figures adopted by the Commission were being disputed.
For the moment, however, we can only allow the application for judicial review and set aside the umpire"s decision in so far as its conclusion is concerned, and send the matter back for restoration of the decision of the Board of Referees upholding the Commission"s determination.
Certified true translation
Christiane Delon
FEDERAL COURT OF APPEAL
A-6-97
THE ATTORNEY GENERAL OF CANADA.
Applicant
- and -
SIMONE GIRARD,
Respondent
REASONS FOR JUDGMENT
OF THE COURT
| NAMES OF COUNSEL AND SOLICITORS OF RECORD |
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| STYLE:Attorney General of Canada v. Simone Girard |
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| PLACE OF HEARING:Montréal, Quebec |
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| DATE OF HEARING:September 18, 1997 |
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| REASONS FOR JUDGMENT OF THE COURT: (Marceau, MacGuigan & Desjardins, JJ.A.) |
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| RENDERED AT THE HEARING BY: Marceau, J.A. |
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| Carole BureauFOR THE APPLICANT |
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| William de MerchantFOR THE RESPONDENT |
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| Deputy Attorney General of Canada |
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| Ottawa, OntarioFOR THE APPLICANT |
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| Campeau, Ouellet, Nadon, Cyr, Rainville, |
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| de Merchant, Bernstein, Cousineau |
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| Montréal, QuebecFOR THE RESPONDENT |
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1 See Athey v. Leonati et al. (1996), 203 N.R. 36 (S.C.C.); [1984] 2 S.C.R. 232">Perka v. The Queen, [1984] 2 S.C.R. 232; Mon-Oil Ltd. v. Canada (1993), 152 N.R. 210 (F.C.A.).
2 See paragraph 44(i) of the Act, complemented by section 60 of the Regulations. See the following cases: Cornish-Hardy v. Board of Referees, [1979] 2 F.C. 437 (F.C.A.), upheld by [1980] 1 S.C.R. 1218">[1980] 1 S.C.R. 1218; Paidel v. Board of Referees, unreported (October 24, 1981), file no. T-2979-81 (F.C.T.D.); Attorney General of Canada v. Opigez, unreported (October 24, 1995), file no. A-370-94 (F.C.A.).
3 See Michel Brien v. C.E.I.C. et al., unreported (April 23, 1997), file no. A-425-96 (F.C.A.); Michel Rajotte v. C.E.I.C. et al., unreported (April 23, 1997), file no. A-426-96 (F.C.A.).
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