Date: 20060315
Dockets: A-251-05
A-252-05
Citation: 2006 FCA 111
CORAM: DESJARDINS
J.A.
LÉTOURNEAU
J.A.
NOËL
J.A.
BETWEEN:
DANIEL ROUSSEAU
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered from the bench at Montréal, Quebec, on March 15, 2006)
LÉTOURNEAU J.A.:
[1]
In dockets
A-251-05 and A-252-05, the applicant is challenging two decisions by the Umpire
in which he set aside decisions by the Board of Referees to reduce the quantum
of penalties and re-establish the amounts set by the Employment Insurance
Commission (the Commission).
[2]
It appears
from docket A-251-05 that the Commission reduced the penalty of $9,910 to an
amount of $1,800. In docket A-252-05, the Commission reduced the penalty from
the original $1,239 to $206.
[3]
In
determining the amount of the penalties in the two cases, the Commission took
into account, among other aggravating or mitigating factors, the fact that the
applicant had made several false statements; that he had done so repeatedly,
justifying a second notice of serious violation of the Employment Insurance
Act, S.C. 1996, c. 23 (the Act); that the applicant had a substance abuse
problem and, finally, that the applicant had made the false statements in order
to pay debts arising from his substance abuse problem.
[4]
The
applicant raises two grounds to intervene in the Umpire’s decision. The grounds
are reasonable in both cases.
[5]
First, he
alleges that in determining the amount of the penalties, the Commission failed
to take into consideration the fact that he had not used drugs since July 1997.
[6]
This
information is contained in the statutory declaration that the applicant made
to the Commission. Therefore, it was in the file that the Commission assessed
for the purpose of determining the amount of the penalties. Although the
Commission did not expressly refer to this in the non-exhaustive list of
factors that it took into consideration, in the absence of additional evidence,
there is no basis on which to claim that this factor was not taken into
consideration.
[7]
Moreover,
in docket A-251-05, the Board of Referees expressly recognized [translation] “that the Commission exercised
its discretionary power having considered the documents in the docket and that
it took into account mitigating factors”. The same observation and findings
were made with respect to docket A-252-05.
[8]
As his
second ground, the applicant states that the Board of Referees was entitled to
intervene and review the decision of the Commission on the basis of the facts
below, which arose after the amount of the penalties was determined.
[9]
The
applicant initially made an assignment of his property, which resulted in a
stay of the proceedings to recover the overpayment.
[10]
He then
changed his mind and cancelled his statement of assignment of property, which
resulted in the cancellation of the settlements based on that assignment. The
applicant decided to repay his debts. He argues that this constitutes a
relevant factor justifying the intervention of the Board of Referees in
reducing the penalties even further than the Commission had done.
[11]
With
respect, and without disparaging the applicant’s commendable decision and
efforts to take responsibility for his debts, we do not believe that this
constitutes a relevant factor justifying interference after the fact with the
penalties imposed. If financial hardship and the claimant’s inability to pay
are factors to be taken into consideration in determining the amount of a
penalty (see for example Canada (Attorney General) v. Deen
(2003), 312 N.R. 299, at page 304; Canada (Attorney General) v. Schembri
(2003), 313 N.R. 336, at page 340), the same cannot be said for his willingness
to pay.
[12]
In any
event, in both cases, the Board of Referees, after acknowledging the
applicant’s efforts to repay his debts instead of declaring bankruptcy,
intervened, stating that [translation]
“a principle of natural justice must apply in this case.” The reference to a
principle of natural justice was vague with respect to its identification,
content and scope.
[13]
In our
opinion, the Umpire was correct in finding that the Board of Referees
intervened arbitrarily and without justification when it substituted its own
opinion for that of the Commission.
[14]
We are of
the opinion that by substantially reducing the amount of the penalties as it
did, the Commission exercised its discretion in a judicial manner. It
demonstrated understanding and compassion without going so far as to undermine
the specific and general deterrent effect intended by the legislator: see Deen
and Schembri, supra, with respect to deterrence.
[15]
For these
reasons, the applications for judicial review are dismissed in dockets A-251-05
and A‑252‑05, but with a single set of costs. However, the
respondent shall be entitled to his disbursements in each of the cases.
[16]
A copy of
these reasons will be entered in docket A-252-05 in support of the judgment
rendered therein.
“Gilles
Létourneau”
Certified
true translation
Francie
Gow
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