Date: 20120203
Docket: A-304-10
Citation: 2012 FCA 37
CORAM: PELLETIER J.A.
DAWSON J.A.
STRATAS J.A.
BETWEEN:
JOHN S.
MERCER
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
Heard at Halifax, Nova
Scotia, on January 31, 2012.
Judgment delivered at Ottawa,
Ontario, on February
3, 2012.
REASONS FOR JUDGMENT BY: STRATAS
J.A.
CONCURRED
IN BY: PELLETIER
J.A.
DAWSON J.A.
Date: 20120203
Docket: A-304-10
Citation: 2012 FCA 37
CORAM: PELLETIER
J.A.
DAWSON J.A.
STRATAS
J.A.
BETWEEN:
JOHN S.
MERCER
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
STRATAS J.A.
[1]
Mr. Mercer
applies for judicial review of the decision dated June 18, 2010 of the Umpire
(CUB 74655). The Umpire rejected Mr. Mercer’s appeal from the Board of
Referees.
[2]
Mr. Mercer
was being paid benefits under the Employment Insurance Act, S.C. 1996,
c. 23. Later, the Commission took the view that Mr. Mercer was overpaid and sought
repayment from him. Both the Board and the Umpire agreed with the Commission.
[3]
The
alleged overpayment stemmed from short-term disability benefits Mr. Mercer was
receiving under a private group plan. Such benefits are considered to be income
for the purposes of calculating benefits under the Act: Employment Insurance
Regulations, SOR/96-332, subparagraph 35(2)(c)(i), subsection 36(1)
and paragraph 36(12)(b). This inclusion into income reduces the benefits
to which Mr. Mercer was entitled.
[4]
In this
Court, Mr. Mercer admits he was overpaid. But he submits that the Commission
was aware that he was being overpaid and should have advised him of that, but
failed to do so. He also submits that the Commission should be accountable for
not counselling him on how to avoid the problem.
[5]
There is
no evidence in the record that the Commission’s advice was deficient. But even
if it were, such deficiency does not assist Mr. Mercer: Canada (Attorney General) v. Granger, [1986] 3 F.C. 70 (C.A.),
aff’d [1989] 1 S.C.R. 141. I would add that Mr. Mercer knew at an early stage
he would have to account for benefits received under the private group plan:
see, for example, Respondent’s Record, pages 49-52.
[6]
In his
written submissions, Mr. Mercer also submits that since the payments from the
private group plan are not included into income under the Income Tax Act,
R.S.C. 1985, c. 1 (5th Supp.) they should not be included into income for the
purposes of the Employment Insurance Act and the Employment Insurance
Regulations.
[7]
I reject
the submission. For the purposes of determining Mr. Mercer’s employment
insurance rights and obligations, the provisions of the Employment Insurance
Act and Regulations apply, not the provisions of other legislation.
[8]
Overall, I
see no reviewable error in the decision of the Umpire.
[9]
The
respondent has brought to our attention that the proper respondent to Mr.
Mercer’s judicial review is the Attorney General of Canada, not Human Resources and Skills
Development: Federal Courts Rules, SOR/98-106, rule 303(1). At the
hearing, the Court agreed that this change should be made and, accordingly,
these reasons and the Court’s judgment reflect this.
[10]
Therefore,
for the foregoing reasons, I would dismiss Mr. Mercer’s application with costs.
"David
Stratas"
“I
agree
J.D. Denis Pelletier J.A.”
“I
agree
Eleanor R. Dawson J.A.”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-304-10
AN APPLICATION FOR JUDICIAL REVIEW FROM A
DECISION OF THE UMPIRE, LOUIS S. TANNENBAUM, DATED JUNE 18, 2010
STYLE OF CAUSE: John
S. Mercer v. Attorney General of Canada
PLACE OF HEARING: Halifax, Nova Scotia
DATE OF HEARING: January 31, 2012
REASONS FOR JUDGMENT BY: Stratas J.A.
CONCURRED IN BY: Pelletier and Dawson
JJ.A.
DATED: February 3, 2012
APPEARANCES:
|
John S. Mercer
|
ON HIS OWN BEHALF
|
|
Sarah E. Drodge
|
FOR
THE RESPONDENT
|
SOLICITORS OF RECORD:
|
|
|
|
Myles J. Kirvan
Deputy
Attorney General of Canada
|
FOR
THE RESPONDENT
|
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