Date: 20111121
Docket: A‑481‑10
Citation:
2011 FCA 320
CORAM: NOËL J.A.
TRUDEL J.A.
MAINVILLE J.A.
BETWEEN:
CLAUDE
BLAIS AND OTHER APPLICANTS
IDENTIFIED
IN THE APPENDED LIST
Applicants
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
TRUDEL J.A.
Introduction
[1]
By order of this Court, the case at bar is an
application for judicial review involving 165 Employment Insurance
claimants, whose names appear in the Appendix to the forthcoming judgment. The
file of Claude Blais is the reference file. When required by these reasons, the
examples given will be drawn from his file.
[2]
The application is filed in respect of CUB
decision No. 75340, delivered by Umpire Guy Goulard on September 24,
2010, (decision under appeal) by which he allowed the Commission’s appeal and
set aside the June 26, 2009, decision of the Board of Referees (the third
Board of Referees or the Board), which had ruled in the applicants’ favour.
[3]
The litigation between the parties arises from
their dispute over the effect, on the allocation of earnings for benefit
purposes, of a decision made on December 13, 2007, by a second Board of
Referees, which had determined that the date of termination of the claimants’
employment was the date on which the factory where they were employed closed
for good, that is, December 31, 1999, rather than their individual layoff
dates, which ranged from before to after December 31, 1999. More
specifically, the applicants take issue with the reallocation of earnings by
the Commission following that decision and with the ensuing consequences for
them: the Commission’s claim for repayment of the overpayments for the period
before December 26, 1999.
[4]
In my opinion, the application must be dismissed
for the reasons that follow.
Relevant facts
and applicable legislative framework
[5]
For the purposes of this application, it
suffices to know that the applicants all worked for Abitibi Consolidated Inc.
at the Chandler plant (Chandler
Mill – Abitibi Price). In late October 1999, the employer announced that
its operations in Chandler
would be ending permanently. Initial benefit periods were established for each
of the applicants, in accordance with their respective files. A few weeks
later, the employees learned that the plant was closing its doors for good and
that the employer would be paying them, in compensation, for amounts including
floating holiday pay, vacation pay and severance pay.
[6]
For the purposes of the Employment Insurance
Act, S.C. 1996, c. 23 (the Act) and the Employment Insurance
Regulations, SOR/96‑332 (the Regulations), this sequence of events
was experienced by Mr. Blais as follows.
[7]
On October 16, 2009, Mr. Blais
completed his final day of work at the Chandler plant. Two days later, he filed a claim for unemployment benefits
(to use the former term, applicants’ record, volume 1, page 55). On
October 28, 1999, he was informed by a letter from the employer that the Chandler plant was closing for good (ibidem,
page 61).
[8]
Over the period from November 1999 to
February 2000, Mr. Blais received $18,415.53 in compensation payments
from the employer.
[9]
In February 2000, the Commission allocated
this amount under section 54 of the Act and sections 35 and 36 of the
Regulations, explaining its approach as follows:
[translation] We wish
to inform you of how your floating holidays, vacation pay for the year 2000 and
severance pay, totalling $18,415.53 . . . affect your Employment
Insurance benefits.
This overall income, before deductions, constitutes earnings that will
be deducted from your benefits on the basis of your normal weekly salary of
$896.80. As a result, you will receive no benefits from October 24, 1999, to
March 11, 2000. A balance of $480 will be
deducted in the week of March 12, 2000. Once you become entitled to benefits, you will have to serve a two‑week
waiting period, during which no benefits are payable.
Please note that your benefit period has been extended by
20 weeks, and will thus end, at the latest, on March 3, 2001
. . . (ibidem, page 54) [Emphasis added.]
[10]
This process implemented the applicable
legislative framework respecting Employment Insurance eligibility. Indeed,
section 7 of the Act sets out the conditions that must be met in order to
receive benefits. More specifically, subsection 7(2) provides that a
person is eligible for Employment Insurance if he or she has had an
interruption of earnings from employment and has held an insurable employment
for the number of hours set out in the Act.
[11]
Furthermore, section 14 of the Regulations
states that an interruption of earnings occurs where,
. . . following a period of employment with an employer,
an insured person is laid off or separated from that employment and has a
period of seven or more consecutive days during which no work is performed for
that employer and in respect of which no earnings that arise from that
employment, other than earnings described in subsection 36(13) [earnings paid
or payable to a claimant in respect of a holiday or non-working day that is
observed as such by law], are payable or allocated.
[12]
This regulatory provision must be read in
conjunction with section 35 of the Regulations, which identifies what
constitutes earnings for benefit purposes. For this application, it is
sufficient to know that the case law is consistent in stating that severance
pay (CUB 178052, 17564, 13063, 20753) and vacation pay (Scully v.
Canada (Commission of Employment and Immigration), [1989] F.C.J. No. 965,
107 N.R. 142) are earnings that disentitle the claimant concerned from
receiving benefits. Many situations may lead to the allocation of earnings. In
the applicants’ case, the Commission applied subsection 36(9) of the
Regulations, which provides as follows:
Subject to subsections (10) and (11), all earnings paid or
payable to a claimant by reason of a lay‑off or separation from an
employment shall, regardless of the period in respect of which the earnings
are purported to be paid or payable, be allocated to a number of weeks that
begins with the week of the lay‑off or separation in such a manner
that the total earnings of the claimant from that employment are, in each
consecutive week except the last, equal to the claimant’s normal weekly
earnings from that employment. [Emphasis added.]
[13]
Accordingly, the Commission made its initial
decision and, on February 24, 2000, sent Mr. Blais a notice of
overpayment in the amount of $3,304, as evidenced by a certificate issued under
subsection 134(2) of the Act (ibidem, page 85).
[14]
The Commission took the same legal approach in
respect of the other claimants, with varying figures and dates for each of
them.
[15]
This allocation as of October 24, 1999, was
appealed. The applicants submit that their employment terminated on
December 31, 1999, as was negotiated between the employer and the union (applicants’
memorandum, paragraph 4). On appeal, the first Board of Referees accepted
the Commission’s position regarding the date of allocation (decision dated September 8, 2004). However, Umpire Goulard
allowed Mr. Blais’ appeal in a decision dated September 9, 2005
(CUB 64293). It is important to reproduce the relevant passage:
I find that the Board erred in law and in fact in finding that the
date that should apply to determine when to allocate the amounts received by
the claimant should be the date the Canada Customs and Revenue Agency ruled was
the date the claimant’s employment terminated. . . . That ruling
could not be considered determinant on the issue of the date the employment was
definitively terminated and the amounts paid became payable. The Board should
not only determine when each of the claimants was laid off but also when their
employment was definitively terminated and the date the amounts received by the
claimants became due and payable. In addition, the new Board should consider
the particular situation of each claimant involved in the appeal, because the
situation is obviously different for many of the claimants. (applicants’ record,
volume I, page 81).
[16]
This returning of the file led to the decision
by the second Board of Referees on December 13, 2007. In its decision, the
second Board of Referees found that the claimants’ date of termination of employment
was December 31, 1999, that is, the date on which the plant closed for
good. Allocation of the amounts received by those claimants therefore had to
begin on that date (applicants’ record, volume 1, page 123).
[17]
In this decision, the Board also stated that it
had no need to reconsider the matter of the overpayment calculations, since it
[translation] “concurs with both
counsel, who argued that the Commission will have to amend its calculations in
each case pursuant to this Board’s decision” (ibidem).
[18]
That decision was not appealed. Consequently,
the Commission reallocated the earnings (second allocation) using this termination
of employment date, that is, December 31, 1999, and issued new notices of
debt showing, for Mr. Blais, an overpayment in the same amount of $3,304 (ibidem,
page 126). The allocation previously determined over the period from
October 24, 1999, to March 11, 2000, was now determined over the
period from December 26, 1999, to May 13, 2000. The recovery
of overpayments began on March 19, 2000 (week coded 1187) and continued until May 20, 2000 (week
coded 1195), as shown in the table below.
[19]
The calculations used to arrive at this sum are
broken down in a table created by the Commission, reproduced at pages 135
and 136 of volume 1 of the applicants’ record. I reproduce the relevant
portions below, with the addition of the calendar date corresponding to the
beginning of the period identified by week codes.
[translation]
|
Week Code
|
Date
|
Breakdown of
calculations following decision by the Board of Referees (BR) dated December 13, 2007
|
Balance of Overpayment (OP)
|
|
1165 Claim
effective 17/10/1999 (Beginning of the benefit periods at issue (BBP))
|
|
1166
|
24/10/1999
|
No OP. Waiting
Period (WP) (Week 2)
|
none
|
|
1167
|
31/10/1999
|
OP 413
|
cancelled
|
|
1168
|
07/11/1999
|
OP 413
|
cancelled
|
|
1169
|
14/11/1999
|
OP 413
|
cancelled
|
|
1170
|
21/11/1999
|
No OP. Pay of $1434.88
reported for floating holidays included in the amounts considered by the BR
to be allocated as of 1175.
|
($413 payable)
|
|
1171
|
28/11/1999
|
OP 413
|
cancelled
|
|
1172
|
05/12/1999
|
OP 413
|
cancelled
|
|
1173
|
12/12/1999
|
OP 413
|
cancelled
|
|
1174
|
19/12/1999
|
OP 413
|
cancelled
|
|
Total:
|
$2,891
|
OP ($2,891) cancelled
|
|
|
|
Allocation following
the BR from 1175 to 1195.
|
|
|
1175
|
26/12/1999
|
OP 413 already
established
This balance will
be “absorbed” by the $413.00 now payable for week 1170
|
Balance TP $413
|
|
Initial
OP: $3,304 – OP $2,891 cancelled following the BR – credit 1170 = Balance
OP $0.00
|
|
1176 to 1186
|
02/01/2000
|
Allocation
already established. No benefits claimed.
|
No OP
|
|
1187
|
19/03/2000
|
Allocation
established, Employment Insurance (EI) benefits of $36 paid on account of Pay
in WP.
|
OP $36
|
|
1188
|
26/03/2000
|
Allocation
established, EI benefits paid OP established
|
OP $413
|
|
1189
|
02/04/2000
|
Allocation
established, EI benefits paid OP established
|
OP $413
|
|
1190
|
09/04/2000
|
Allocation
established, EI benefits paid OP established
|
OP $413
|
|
1191
|
16/04/2000
|
Allocation
established, EI benefits paid OP established
|
OP $413
|
|
1192
|
23/04/2000
|
Allocation
established, EI benefits paid OP established
|
OP $413
|
|
1193
|
30/04/2000
|
Allocation
established, EI benefits paid OP established
|
OP $413
|
|
1194
|
07/05/2000
|
Allocation
established, EI benefits paid OP established
|
OP $413
|
|
1195
|
14/05/2000
|
End of established
allocation, balance of $480 = $36 payable
EI benefits paid
$413 – $ 36 = $377 OP established
|
OP $377
|
|
OP
established: following the BR’s decision = OP
$3,304
|
|
1196 to 1199
|
21/05/2000
|
EI benefits paid
(4 x $413).
|
No OP
|
|
1200 to 1213
|
18/06/2000
|
No benefits
claimed.
|
No OP
|
|
1214 to 1228
|
24/09/2000
|
EI benefits paid,
(15 x $413).
|
No OP
|
|
Grand Total of OP balance
|
|
Initial OP:
|
|
Balance of
initial OP
|
$0.00
|
|
OP
established:
|
|
Following the
BR’s decision
|
$3304.00
|
|
Total:
|
|
Grand Total of
OP balance
|
$3304.00
|
|
|
|
|
|
[20]
Although the balance of the overpayment remained
unchanged for Mr. Blais, the same cannot be said for all of the claimants.
For some, the overpayment balance went up or down. The applicants argue that
the approach used by the Commission to arrive at the amount claimed did not flow
from the decision dated December 13, 2007, but from another decision‑making
process. They made note, in particular, of two cases where the balance was increased
as a result of the second allocation. I will return to this later on.
[21]
This second allocation and the resulting overpayment
amounts gave rise to the applicants’ appeal to the third Board of Referees,
which ruled in their favour, thus leading to the Commission’s appeal to the
Umpire. The Umpire allowed the Commission’s appeal in CUB 75340 (decision
dated September 24, 2010),
which is the subject of this application for judicial review.
Decision of the
Umpire
[22]
In the Umpire’s view, the Board’s jurisdiction
was limited to determining whether “the Commission’s decision to allocate the
amounts received as of December 31, 1999, was consistent with the evidence
concerning the date of final termination of the claimant’s employment and
with the relevant legislative provisions” (decision under appeal, applicants’
record, volume 1, page 31). [Emphasis added.] To that effect, the
Umpire noted that, instead of tackling this issue, the Board had concluded that
the Commission had overstepped the bounds of the decision by the second Board
of Referees. The Board had found that the Commission “had amended its initial
declarations and determined a new allocation” (ibidem, page 32).
[23]
The Umpire pointed out that the dispute which
the second Board of Referees had to decide concerned the date of final
termination of employment for allocation purposes under subsection 36(9)
of the Regulations, not the issue of whether the amounts received were earnings
under section 35 of those Regulations.
[24]
Unlike the Board, the Umpire was of the opinion
that the Commission, by taking the approach it had, was doing no more than
implementing the decision of December 13, 2007. With that finding, the
Umpire set aside the Board’s decision that the Commission’s new calculations were
new facts. The Board wrote the following:
[translation]
Therefore, in the Claude Blais file, we give credit to
the arguments [of the applicants, who state] that [translation] “. . . the appealed allocation period
was from 1166 to 1185 [October 24, 1999, to March 11, 2000], and the benefits claimed were those
received over the course of this period for a total of $3,304.00. The
Commission’s new decision and ensuing claim refer to the weeks from 1187 to
1195 [March 19, 2000, to
May 20, 2000] in the Commission’s digital calendar. On their face,
these benefit weeks have nothing to do with the initial benefits claimed.
In our opinion, this constitutes a new decision‑making process related to
the benefits received in 2000 (and continuing, in some cases, into 2001). There
was a 36‑month mandatory time limit for claiming those benefits. A
decision rendered in 2008 or 2009 cannot meet such a requirement
. . .” (decision of the Board, applicants’ record, volume V,
page 938). [Emphasis added.]
[25]
The Umpire did not share that view. He therefore
concluded that the Board could not draw authority from section 120 of the
Act, pertaining to new facts, to review the decision of the second Board of
Referees. In the same breath, the Umpire dismissed the applicants’ argument
pertaining to the limitation period set out in section 52.
[26]
Ultimately, the Umpire found that the Board of
Referees had “overstepped its jurisdiction and erred in fact and in law in
deciding that the overpayment amount being sought from the claimant by the
Commission pursuant to the Board of Referees’ decision of December 13,
2007 was not justified, and in allowing the claimant’s appeal” (decision under
appeal, applicants’ record, volume I, page 38).
Issues
[27]
The parties suggested various issues, but I
propose only one: Did the Board err in its interpretation of sections 52
and 120 of the Act and their application to the facts of the case, or did the
Umpire misdirect himself in law in concluding as he did?
Positions of
the parties
[28]
The applicants’ argument has remained unchanged
since they made their submissions before the Board. In their opinion, the
Commission’s claims regarding the overpayments are unfounded and cannot result
from the execution of the decision dated December 13, 2007.
[29]
They result from a new decision‑making
process that the Commission was prevented from engaging in by section 52
of the Act, which provides that the Commission may only reconsider a claim
within 36 months after the benefits have been paid or would have been
payable. The applicants are therefore adopting the Board’s conclusion that [translation] “the amendments and claims
of which the Commission gave notice in 2008–2009 are found to be new facts and
[this] was indeed a new decision overstepping the confines of the decision
. . . of December 13, 2007” (Board’s decision, applicants’ record,
volume V, page 939). In order to comply with section 52, above,
these [translation] “amendments should
have been made between February 2000 and March 12, 2003” (ibidem).
According to the applicants, only [translation]
“. . . the benefits claimed and received as of week 1175 (that
is, the week of December 26, 1999) until the end date set out in the
initial appealed decision [March 11, 2000] are consistent with a proper
application of the decision of the [second] Board of Referees, dated
December 13, 2007 and . . . only this part of the claim has
merit” (decision under appeal, applicants’ record, volume 1, pages 29‑30).
In short, the benefits received before December 26, 1999, cannot be claimed
as an overpayment.
[30]
The Umpire therefore erred in concluding that
the decision of December 13, 2007, had limited the Board’s jurisdiction [translation] “in respect of the reallocation
process amending the specific allocation period and claiming, in whole or in
part, benefits other than those initially claimed . . . [especially
since] the Commission . . . had accepted the context and the limits
defined by the parties to the dispute as set out at section 52 of the Act
in the context of the decision rendered” (applicants’ memorandum,
paragraph 55).
[31]
As for the Commission, it submits that the reallocation
is simply the result of applying the various relevant legislative provisions to
the facts of the case, since the execution of the decision of the second Board
of Referees had set December 31, 1999, as the date of termination of
employment for all of the applicants. In no way was this a reconsideration
under section 52 of the Act. Since the decision dated December 13, 2007, was not appealed, that
decision is final and, in accordance with section 120 of the Act, may not
be rescinded or amended unless new facts are presented. In short, neither
section 52 nor section 120 is triggered.
[32]
Furthermore, before this Court, the Commission
noted that section 52 cannot be read without a parallel examination of
subsections 47(3) and (4) of the Act, which address the time limits
applicable to debts due to the Crown and to their recovery by deduction and
retention and the fact that a limitation period does not run when there
is pending an appeal against the decision establishing the liability to be
recovered.
Legislative
provisions referenced by the parties
[33]
These provisions read as follows:
|
Debts to Crown
47. (1) All amounts payable under section 38,
39, 43, 45, 46 or 46.1 are debts due to Her Majesty and are recoverable in
the Federal Court or any other court of competent jurisdiction or in any
other manner provided by this Act.
Recovery
(2) If benefits become payable to a claimant,
the amount of the indebtedness may be deducted and retained out of the
benefits.
Limitation
(3) No amount due under this section may be
recovered more than 72 months after the day on which the liability arose.
Appeals
(4) A limitation period established by
subsection (3) does not run when there is pending an appeal or other review
of a decision establishing the liability.
…
Reconsideration of claim
52. (1) Notwithstanding section 120, but
subject to subsection (5), the Commission may reconsider a claim for benefits
within 36 months after the benefits have been paid or would have been
payable.
Decision
(2) If the Commission decides that a person
(a) has received money by way of
benefits for which the person was not qualified or to which the person was
not entitled, or
(b) has not received money for which
the person was qualified and to which the person was entitled,
the Commission shall calculate the amount
of the money and notify the claimant of its decision and the decision is
subject to appeal under section 114.
Amount repayable
(3) If the Commission decides that a person has
received money by way of benefits for which the person was not qualified or
to which the person was not entitled,
(a) the amount calculated is repayable
under section 43; and
(b) the day that the Commission
notifies the person of the amount is, for the purposes of subsection 47(3),
the day on which the liability arises.
Amount payable
(4) If the Commission decides that a person was
qualified and entitled to receive money by way of benefits, and the money was
not paid, the amount calculated is payable to the claimant.
Extended time to reconsider claim
(5) If, in the opinion of the Commission, a
false or misleading statement or representation has been made in connection
with a claim, the Commission has 72 months within which to reconsider the
claim.
…
Amendment of decision
120. The Commission, a board of referees or the
umpire may rescind or amend a decision given in any particular claim for
benefit if new facts are presented or if it is satisfied that the decision
was given without knowledge of, or was based on a mistake as to, some
material fact.
|
Créances de la Couronne
47. (1) Les sommes payables au titre des
articles 38, 39, 43, 45, 46 ou 46.1 constituent des créances de Sa Majesté,
dont le recouvrement peut être poursuivi à ce titre soit devant la Cour
fédérale ou tout autre tribunal compétent, soit selon toute autre modalité
prévue par la présente loi.
Recouvrement par déduction
(2) Les sommes dues par un prestataire peuvent
être déduites des prestations qui lui sont éventuellement dues.
Prescription
(3) Le recouvrement des créances visées au
présent article se prescrit par soixante‑douze mois à compter de la
date où elles ont pris naissance.
Interruption de la prescription
(4) Tout appel ou autre voie de recours formé
contre la décision qui est à l’origine de la créance à recouvrer interrompt
la prescription visée au paragraphe (3).
[…]
Nouvel examen de la demande
52. (1) Malgré l’article 120 mais sous
réserve du paragraphe (5), la Commission peut, dans les trente‑six mois
qui suivent le moment où des prestations ont été payées ou sont devenues
payables, examiner de nouveau toute demande au sujet de ces prestations.
Décision
(2) Si elle décide qu’une personne a reçu une
somme au titre de prestations pour lesquelles elle ne remplissait pas les
conditions requises ou au bénéfice desquelles elle n’était pas admissible, ou
n’a pas reçu la somme pour laquelle elle remplissait les conditions requises
et au bénéfice de laquelle elle était admissible, la Commission calcule la
somme payée ou payable, selon le cas, et notifie sa décision au prestataire.
Cette décision peut être portée en appel en application de l’article 114.
Somme remboursable
(3) Si la Commission décide qu’une personne a
reçu une somme au titre de prestations auxquelles elle n’avait pas droit ou
au bénéfice desquelles elle n’était pas admissible :
a) la
somme calculée au titre du paragraphe (2) est celle qui est remboursable
conformément à l’article 43;
b) la
date à laquelle la Commission notifie la personne de la somme en cause est,
pour l’application du paragraphe 47(3), la date où la créance a pris
naissance.
Somme payable
(4) Si la Commission décide qu’une personne n’a
pas reçu la somme au titre de prestations pour lesquelles elle remplissait
les conditions requises et au bénéfice desquelles elle était admissible, la somme
calculée au titre du paragraphe (2) est celle qui est payable au prestataire.
Prolongation du délai de réexamen de la
demande
(5) Lorsque la Commission estime qu’une
déclaration ou affirmation fausse ou trompeuse a été faite relativement à une
demande de prestations, elle dispose d’un délai de soixante‑douze mois
pour réexaminer la demande.
[…]
Modification de la décision
120. La Commission, un conseil arbitral ou le juge‑arbitre
peut annuler ou modifier toute décision relative à une demande particulière
de prestations si on lui présente des faits nouveaux ou si, selon sa
conviction, la décision a été rendue avant que soit connu un fait essentiel
ou a été fondée sur une erreur relative à un tel fait.
|
Standard of review
[34]
It is undisputed that the correctness standard
applies to the Umpire’s conclusions of law (Canada (Attorney General) v.
Lemire, 2010 FCA 314, paragraph 8) and that, in this case, the Umpire’s
findings of mixed fact and law, as well as his findings of fact, will be upheld
if they “[have] the qualities that make a decision reasonable” (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1
S.C.R. 190, paragraph 47).
[35]
We must also determine, on a standard of
correctness, whether the Umpire erred in identifying the standard of review
applicable to the Board of Referees’ decision. Here, the Commission’s appeal,
filed under section 115 of the Act, concerned the Board’s jurisdiction to
act as it did. The Umpire had to ensure, first of all, that the Board had
correctly interpreted the Act and the Regulations. Although the Umpire did not
specify the standard of review underlying his review of the Board’s decision,
it can only be inferred from his reasons that he applied the correctness
standard, and rightly so.
Analysis
[36]
I agree with the position taken by the Umpire
and the Commission. With respect, the applicants’ position fails to take into
account the legal effects of the decision dated December 13, 2007, on the
allocation of the earnings received by the applicants.
Effect of the decision dated December 13, 2007
[37]
The December 13, 2007, decision amended the
date as of which the allocation was determined by setting the date proposed by
the applicants, December 31, 1999, as the date of termination of
employment. In fact, as stated by the second Board of Referees,
[translation]
[a]ccording to Mr. Ouellet, by means of this document [the
letter of agreement dated December 2, 1999, between the employer and the
union, which provides that the employee benefits would be continued until
December 31 and that the severance pay would be paid upon final
termination], the company is demonstrating that the employees were still
working in December 1999 (aplicants’ record, volume I,
page 102).
[38]
As a result, in accordance with the Act and the
Regulations, the Commission had to establish a revised allocation. For
Mr. Blais, this allocation period began on December 26, 1999, and
ended on May 20, 2000, that is, 20.5 weeks later (weeks 1175 to
1195), on the basis of his weekly earnings.
[39]
By appealing the [translation] “extension of the allocation period” (applicants’
memorandum, paragraph 51), the applicants are essentially seeking to keep
the benefits received before December 26, 1999, even though they were not
entitled to them, and are objecting to any allocation beyond March 11,
2000. In practice, this means that the $18,415.53 received by Mr. Blais,
and henceforth required to be allocated from December 26, 1999, to
May 20, 2000, would have to be allocated over less than 20.5 weeks,
and therefore on a basis other than his weekly wages, thus rendering him
eligible for regular benefits sooner than is provided by law.
[40]
I cannot agree that this is the effect that the
second Board of Referees wished to give to the phrase [translation] “. . . the Commission will have to amend
its calculations in each case in accordance with our decision”, since that
would, undeniably, be contrary to the Act and the Regulations. The amendment of
the calculations resulting from the December 13, 2007 decision necessarily
meant that a new allocation period had to be determined for each of the
applicants. This issue was well known to the parties, who, throughout the fall
of 2010, had exchanged tables showing the effects of an allocation beginning in
December 1999 rather than in October 1999 (applicants’ record, volume I,
pages 70, 72).
[41]
The evidence does show that certain overpayments
were corrected or simply cancelled during the second allocation, which is a
possibility noted in the decision dated December 13, 2007. These corrections
or cancellations resulted, in large part, from errors in the notices of
overpayment or simple calculation errors. My view is that, by making its
comment, the second Board of Referees wanted to ensure that the Commission’s
claims in respect of the numerous claimants at issue were accurate.
[42]
In this vein, the Commission made an undertaking
before this Court to cancel all corrections in the second allocation which had
the effect of penalizing an applicant by increasing the amount claimed for
repayment. This undertaking was made at the hearing of the application after
counsel for the applicants gave two examples, the only ones he was able to give
the Court, of corrections having been made which increased the amount claimed:
the files of Gatien Dugal and Maurice Aspireault.
[43]
In the Aspireault file, the Commission claimed
an overpayment of $1,618 in 2000 (applicants’ record, volume II,
page 355; volume IV, page 735), which was increased to $2,857 in
2007 (ibidem, volume V, page 1063). I will not discuss his
file further since Mr. Aspireault is not on the list of applicants (ibidem,
volume IV, page 892).
[44]
In Mr. Dugal’s case, the $48 increase results
from a calculation error by the Commission, which, during the first allocation,
had calculated a weekly overpayment of $390 rather than $398 for weeks 1166
to 1171, that is, October 24, 1999, to December 4, 1999 (ibidem,
volume V, page 1076). Further to the Commission’s undertaking, $48
will be subtracted from the amount owed.
Section 52 is not engaged
[45]
The matter of the corrections made by the
Commission in determining its second allocation and the matter of the ensuing
overpayments are at the core of the applicants’ arguments. As mentioned above,
the applicants submit that those corrections in fact constitute a
reconsideration of the files, which section 52 does not allow.
[46]
I disagree. As a result of the decision dated
December 13, 2007, the Commission had to redetermine the allocation in
accordance with the Act and the Regulations. This was not a reconsideration of
the applicants’ files which the Commission can carry out at its discretion, as
provided for by section 52 (Portelance c. Canada (Commission de l’Emploi
et de l’Immigration), [1990] F.C.J. No. 309).
[47]
Section 52 is not engaged, and neither is
the time limit it sets out. In any case, as the respondent argues,
section 52 must not be read without taking section 47 into account (Brière
v. Canada (Employment and Immigration Commission), [1988] F.C.J.
No. 551), which provides that a limitation period does not run in certain
circumstances, including for the recovery of debts owing as a result of
overpayments (section 43 of the Act).
[48]
Furthermore, the recalculations have in no way
altered the situation of the applicants, who, as of February 2000, were
disentitled from receiving benefits for the period at issue. The Umpire was
therefore correct in concluding that the Commission’s execution of a Board of
Referees’ decision is not a new decision (Pirker v. Canada, 2002 FCA
235).
Section 120 is not engaged
[49]
In Canada (Attorney General) v. Chan, [1994]
F.C.J. No. 1916, this Court wrote the following:
A different version of facts already known to the claimant, mere
afterthoughts or the sudden realization of the consequences of acts done in the
past are not “new facts”. “New facts”, for the purpose of the reconsideration
of a decision of an umpire sought pursuant to section 86 of the Act, are
facts that either happened after the decision was rendered or had happened
prior to the decision but could not have been discovered by a claimant acting
diligently and in both cases the facts alleged must have been decisive of the
issue put to the umpire.
[50]
Adapting this test to the facts of the case, it
is useful to recall that the issue before the second Board of Referees was to
determine the date of final termination of employment. More specifically, the
issues, as expressed by the second Board of Referees, were the following:
[translation]
a.
Do the floating holiday pay, the vacation pay
for 2000 and the severance pay in the amount of $18,415.53 received from your
employer Abitibi‑Price affect your benefits?
b.
As of which date must the amounts received by
the claimant begin to be allocated?
c.
Specifically, the Board must determine the
following:
‑ When was the claimant laid off?
‑ When was his date of final termination of employment?
‑ Last, on which date did the amounts
received by the claimant become payable and due? (applicants’ record, volume I,
page 97)
[51]
These issues were all aimed at determining on
which date, between October 24 and December 31, 1999, the claimants’
final termination of employment occurred. The Commission’s recalculations did
not decide the issues set forth; the recalculations were but the logical
consequence of the second Board of Referees’ ruling on those issues. The Board
should not have described those calculations as “new facts”. It erred in doing
so, and the Umpire was correct in finding that the Board had exceeded its
jurisdiction.
Conclusion
[52]
Consequently, I would dismiss the applicants’
application for judicial review, with one set of costs.
[53]
I would also give effect to the Commission’s
commitment, regarding those files where a given applicant’s overpayment balance
was increased as a result of the new calculations made after the decision dated
December 13, 2007, to cancel the amount corresponding to this increase and
claim only the repayment of the overpayment as originally established by the
Commission.
“Johanne Trudel”
“I agree.
Marc Noël, J.A.”
“I agree.
Robert M.
Mainville, J.A.”
Certified true
translation
Sarah Burns
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