A-464-96
MONTREAL, QUEBEC, THE
17TH DAY OF JANUARY 1997
CORAM: THE HONOURABLE MR. JUSTICE
HUGESSEN
THE
HONOURABLE MR. JUSTICE DÉCARY
THE
HONOURABLE MR. DEPUTY JUSTICE CHEVALIER
BETWEEN: ISABELLA MUCCIARONE,
Applicant,
AND
EMPLOYMENT
AND IMMIGRATION
COMMISSION
OF CANADA,
Respondent.
J
U D G M E N T
The application for judicial review is allowed,
the decision of the umpire set aside and the matter referred back to the chief
umpire or such umpire as is designated by him for reconsideration in accordance
with the reasons given by this Court.
James K. Hugessen
J.A.
Certified true
translation
C. Delon, LL.L.
A-464-96
CORAM: THE
HONOURABLE MR. JUSTICE HUGESSEN
THE
HONOURABLE MR. JUSTICE DÉCARY
THE
HONOURABLE MR. DEPUTY JUSTICE CHEVALIER
BETWEEN:
ISABELLA
MUCCIARONE,
Applicant,
AND
EMPLOYMENT
AND IMMIGRATION
COMMISSION
OF CANADA,
Respondent.
Hearing
held at Montréal
on
Friday, January 17, 1997
Judgment
delivered at Montréal
on
Friday, January 17, 1997
REASONS FOR JUDGMENT OF
THE COURT BY: DÉCARY J.A.
A-464-96
CORAM: THE
HONOURABLE MR.JUSTICE HUGESSEN
THE
HONOURABLE MR. JUSTICE DÉCARY
THE
HONOURABLE MR. DEPUTY JUSTICE CHEVALIER
BETWEEN:
ISABELLA
MUCCIARONE,
Applicant,
AND
EMPLOYMENT
AND IMMIGRATION
COMMISSION
OF CANADA,
Respondent.
REASONS
FOR JUDGMENT OF THE COURT
(Delivered
from the bench at Montréal
on
Friday, January 17, 1997)
DÉCARY J.A.
The
applicant knowingly made eighteen false statements and the Commission imposed
on her, as it was authorized to do by s. 33(1) of the Unemployment
Insurance Act,[1]
a penalty amounting to eighteen times the benefit rate determined in the case
at bar, namely $4,536 (252 x 1 x 18). The board of
referees reduced this penalty to the token amount of $18, that is one dollar
for each of the false statements, citing the applicant's precarious situation
and relying on the decision of an umpire in CUB 21472 (Adhémard Simard).
Relying on
the precedents of the time the umpire concluded that the board of referees had
no jurisdiction to alter the amount of the penalty imposed by the Commission,
and he therefore allowed the Commission's appeal without ruling on the merits
of the board of referees' decision as to the amount of the penalty.
The basis
of the umpire's decision cannot of course stand in view of the subsequent shift
in case law in this Court (see Morin v. Employment and Immigration
Commission (1996), 134 D.L.R. (4th) 724 (F.C.A.), and Dunham v. Attorney
General of Canada (September 27, 1996), A‑857‑95 and A‑708‑95,
F.C.A., not reported).
It is clear
that the umpire's decision must be set aside. He should have considered
whether the board of referees' decision on the amount of the penalty was
justified. The matter will accordingly be referred back to the umpire for him
to determine, based on the applicant's financial situation and such other
factors as he considers relevant, whether the board of referees exercised its
discretion judicially by for all practical purposes cancelling the penalty
imposed by the Commission. In this connection, the Court would note that a
board of referees should only cancel a penalty or reduce it to a token amount
in exceptional circumstances.
The
judicial review application will be allowed, the decision of the umpire set
aside and the matter referred back to the chief umpire or an umpire designated
by him for reconsideration based on these reasons.
Robert Décary
J.A.
Certified true
translation
C. Delon, LL.L.
FEDERAL
COURT OF APPEAL
A-464-96
BETWEEN:
ISABELLA
MUCCIARONE,
Applicant,
AND:
EMPLOYMENT
AND IMMIGRATION
COMMISSION
OF CANADA,
Respondent.
REASONS
FOR JUDGMENT OF THE COURT
FEDERAL
COURT OF APPEAL
NAMES
OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE No.:A-464-96
STYLE OF CAUSE:ISABELLA MUCCIARONE,
Applicant,
AND:
EMPLOYMENT AND IMMIGRATION COMMISSION OF CANADA,
Respondent.
PLACE OF HEARING:Montréal, Quebec
DATE OF HEARING:January 17, 1997
REASONS FOR JUDGMENT OF
THE COURT (THE HONOURABLE MESSRS. JUSTICES HUGESSEN AND DÉCARY AND DEPUTY
JUSTICE CHEVALIER) READ FROM THE BENCH BY:
Décary J.A.
DATED:January 17, 1997
APPEARANCES:
Claudine Barabéfor the applicant
William de Merchant
Sylvie Martinfor the respondent
Carole Bureau
SOLICITORS OF RECORD:
Campeau, Ouellet et Associésfor the applicant
Montréal, Quebec
George Thomsonfor the respondent
Deputy Attorney General
of Canada
Ottawa, Ontario
Email this Content