Date:
20090929
Dockets: A-278-08
A-279-08
Citation: 2009
FCA 281
CORAM: SEXTON
J.A.
SHARLOW
J.A.
RYER
J.A.
A-278-08
BETWEEN:
NEELAM MEHAN
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
A-279-08
BETWEEN:
TINA MEHAN
Applicant
and
ATTORNEY GENERAL
OF CANADA
Respondent
REASONS FOR JUDGMENT
RYER J.A.
[1]
Ms.
Neelam Mehan brought an application for judicial review (A-278-08) of a
decision (CUB 68812A) of Umpire Teitelbaum, dated April 15, 2008, dismissing
her application, pursuant to section 120 of the Employment Insurance Act,
S.C. 1996, c. 23 (the “Act”), for reconsideration of his decision (CUB 68812),
dated August 23, 2007. Ms. Tina Mehan brought an application for judicial
review (A-279-08) of Umpire Teitelbaum’s decision (CUB 69110A) dismissing her
application, pursuant to section 120 of the Act, for reconsideration of his
decision (CUB 69110), dated August 23, 2007.
[2]
These
reasons will apply to both applications for judicial review, which were heard
together, and will be filed as reasons for judgment in the files for each of
those applications.
[3]
Section
120 of the Act reads as follows:
|
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.
|
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.
|
[4]
The
Umpire’s decisions in CUB 68812 and in CUB 69110 upheld decisions of the Board
of Referees (the “Board”), dated September 15, 2006, which affirmed the
decisions of the Employment Insurance Commission to cancel the Mehans’ benefit
periods and to impose penalties and notices of violation on each of them for
knowingly making false or misleading statements.
[5]
Underpinning
the Board’s decisions were findings that the Mehans did not actually work as
tree planters for Dewan Enterprises Ltd., a corporation operated by one of
their relatives, as they had stated in their applications for benefits.
[6]
The
Mehans did not attend the hearings of their appeals of the Board’s decisions
and the Umpire rendered his decisions in their appeals based upon the records
that were before him. He concluded that there was substantial evidence to
support the Board’s conclusions that the Mehans did not actually work for Dewan
Enterprises Ltd. as tree planters, as they indicated in their applications for
benefits, and that they had knowingly made false or misleading statements. Accordingly,
he upheld the Board’s decisions.
[7]
Unhappy
with the Umpire’s decisions, the Mehans applied to have them reconsidered. In
support of those applications, the Mehans sought to explain their
non-attendance at the hearings of their appeals before the Umpire. In addition,
they stated that if the Umpire agreed to reconsider his decisions, they had
witnesses who would come to the reconsideration and confirm that the Mehans had
worked for Dewan Enterprises Ltd. as tree planters at the times referred to in
their applications for benefits.
[8]
In
considering the Mehans’ reconsideration requests, the Umpire referred to the
test for new facts, for the purposes of section 120 of the Act, as set forth in
the decisions of this Court in Canada (Attorney General) v. Chan (1994),
178 N.R. 372, [1994] F.C.J. No. 1916 (QL) and Mansour v. Canada (Attorney
General), 2001 FCA 328, [2001] F.C.J. No. 1639 (QL). One of the
requirements of that test, the discoverability requirement, is that the alleged
new facts could not have been discovered before the hearing by a claimant who
acted diligently.
[9]
The
Umpire then determined that the Mehans had presented no new evidence that would
meet the test for new facts. In particular, he found that their failure to
attend at the hearing of their appeals and their explanations for their
non-attendance did not constitute new facts. He also stated that he was
satisfied that his decisions in CUB 68812 and CUB 69110 were given with
knowledge of all material facts and were not based upon a mistake as to some
material fact. Accordingly, he dismissed their reconsideration applications.
[10]
In
their applications for judicial review, the Mehans request this Court to
consider evidence from several individuals that they believe will establish
that they worked for Dewan Enterprises Ltd. at the times referred to in their
applications for benefits, and after considering this evidence, to reinstate
the benefits that they requested and cancel the penalties and notices of
violation that have been imposed upon them. I cannot accede to these requests.
[11]
The
issue before this Court is whether the Umpire made any reviewable error in
refusing the Mehans’ request for reconsideration of his decisions in CUB 68812
and CUB 69110. In my view, no such error has been established.
[12]
The
witness letters that have been put forward in the applications before this
Court cannot establish such an error because the Umpire did not have those
letters before him when he rendered his reconsideration decisions. Moreover,
even if those letters had been presented to him, in my view, they would not
have constituted new facts, for the purposes of section 120 of the Act, because
they do not meet the discoverability requirement. Those letters refer to events
that occurred, and were known, prior to the hearings before the Board and the
Umpire and could have been presented in those hearings if the Mehans acted
diligently.
[13]
The
Mehans stated to this Court that they were told by the person upon whom they
relied for representation before the Board that they should not attend and give
evidence at the hearing before the Board. They further stated that they were
unaware that their representative had failed to present to the Board evidence
similar to that which is contained in the witness letters or that evidence of
that type could have been presented to the Umpire when he heard their appeals
from the Board’s decisions.
[14]
While
these assertions may explain some of the actions that were taken by the Mehans,
in my view, they provide no basis upon which this Court can intervene in the
reconsideration decisions of the Umpire, which are the subject of the
applications before this Court.
[15]
Finally,
the Mehans appear to be asking this Court to conduct a new hearing of the
merits of their applications for benefits and the imposition of a penalties and
notices of violation against them, something that this Court cannot do.
[16]
In
conclusion, I am not persuaded that the Umpire made any error that warrants
intervention by this Court when he refused the Mehans’ applications to reconsider
his decisions in CUB 68812 and CUB 69110. Accordingly, the applications for
judicial review will be dismissed. As the Crown has not requested costs, none
will be awarded.
"C.
Michael Ryer"
“I
agree
J.
Edgar Sexton J.A.”
“I
agree
K.
Sharlow J.A.”
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