Date: 20121114
Docket: A-280-12
Citation: 2012 FCA
290
CORAM: NOËL J.A.
PELLETIER J.A.
TRUDEL J.A.
BETWEEN:
MÉLANIE INKELL
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS
FOR JUDGMENT
NOËL J.A.
[1]
This is an application for judicial review of a decision by Umpire
Hurtubise (CUB 78964), dated April 20, 2012, upholding an earlier decision
by the Board of Referees (the Board) dated September 29, 2011.
[2]
Both parties ask that the application for judicial review be
allowed summarily on the ground that the Umpire failed in several respects to
intervene when he should have.
[3]
In my view, this application for judicial review should be allowed
for the reasons set out below.
Eligibility
[4]
The Board of Referees ruled that the applicant was ineligible
under sections 8 and 11 of the Employment Insurance Act, S.C. 1996,
c. 23 (the Act), and section 30 of the Employment Insurance Regulations
SOR/96-332 (the Regulations) because she failed to establish that she had
been unemployed during the period from September 27, 2009, to
January 15, 2010, as she was operating a business.
[5]
However, the Board does not seem to have taken into account the
principles set out in Martens v. Canada (Attorney General), 2008 FCA 240
(Martens). It does not appear to have raised the question whether the
extent of the applicant’s engagement in her business during the benefit period,
determined according to the factors listed at subsection 30(3) of the
Regulations, was such that she could not rely on it as her principal means of
livelihood. The Board simply set out its findings of fact in the light of the
factors enumerated in subsection 30(3) of the Regulations without drawing
any explicit conclusions as to the use of the test described in
subsection 30(2).
[6]
The Board also appears to have erred in its analysis in that it
was supposed to deal with the issue of unemployment status and instead made
findings as to the applicant’s availability, and so it failed to decide the
issue before it.
Allocation of earnings from the applicant’s business
[7]
With respect to the application of earnings from the applicant’s
business, the Board did not set out its findings of fact as required by
subsection 114(3) of the Act, namely, whether the amounts from the applicant’s
business constituted earnings within the meaning of section 35 of the
Regulations, as it should have done.
[8]
The Board similarly erred with respect to the issue of whether the
earnings under subsection 36(6) of the Regulations were correctly
allocated by the Canada Employment Insurance Commission (the Commission),
having even ignored the explanations provided by the Commission in
Exhibits 45.12 and 45.13 of the appeal docket before the Umpire, before returning
the docket to the Commission.
[9]
In the circumstances, the Umpire should have overturned the
Board’s decision.
Allocation of earnings from Distribution JMF 2010 Inc.
[10]
With respect to the allocation of earnings from the company
Distribution JMF 2010 Inc., the Board did not set out its findings of fact as
required by subsection 114(3) of the Act, namely, whether the earnings
from Distribution JMF 2010 Inc. had been correctly allocated by the Commission
pursuant to subsection 36(6) of the Regulations, having even ignored the
explanations provided by the Commission in Exhibits 45.13 and 45.14 of the
appeal docket before the Umpire, before returning the docket to the Commission.
[11]
The Umpire should therefore have overturned the Board’s decision.
Penalty
[12]
In the light of the errors described above, the penalty assessed
against the applicant pursuant to section 38 of the Act must be redetermined
by the Board once it has decided these issues.
Notice
of violation
[13]
The same is true for the notice of violation issued pursuant to
section 7.1 of the Act.
Decision
[14]
For these reasons, I would allow the application for judicial
review and remit the matter to the Umpire in Chief or his designate for
redetermination on the basis that the appeal must be allowed and the matter
referred to another Board for a new hearing in accordance with the following
instructions:
(1) apply
the objective test set out at subsection 30(2) of the Regulations and ask
whether the extent of the applicant’s participation in her business during the
benefit period, determined according to each of the six (6) circumstances
listed in subsection 30(3) of the Regulations, was such that she could not
rely on it as her principal means of livelihood (Martens).
(2) set
out its material findings of fact by deciding the issues of the determination
and allocation of earnings from the applicant’s business between
September 27, 2009, and January 15, 2010, pursuant to section 35
and subsection 36(6) of the Regulations.
(3) set
out its material findings of fact by deciding the issue of the allocation of
earnings from Distribution JMF 2010 Inc. pursuant to subsection 36(6) of
the Regulations.
(4) determine
whether the applicant knowingly made false or misleading representations once
it has correctly determined issues (1), (2) and, in part, (3), namely:
-
whether the work in her company was more extensive than she had
reported;
-
whether she failed to report earnings from her company;
-
whether she failed to report earnings made as a co-adventurer in
Distribution JMF 2010 Inc.
(5) apply
the principle set out in Gill v. Canada (Attorney General), 2010 FCA
182, to the effect that a notice of violation is not automatic.
“Marc Noël”
“I agree.
J.D. Denis Pelletier J.A.”
“I agree.
Johanne Trudel J.A.”
Certified true translation
François Brunet, Revisor
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