Date: 20050113
Docket: A-83-04
Citation: 2005 FCA 18
CORAM: LÉTOURNEAU J.A.
NOËL J.A.
PELLETIER J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
LOUIS LAVOIE
Respondent
Hearing held at Montréal, Quebec, January 13, 2005.
Judgment delivered from the bench at Montréal, Quebec, January 13, 2005.
REASONS FOR JUDGMENT OF THE COURT: LÉTOURNEAU J.A.
Date: 20050113
Docket: A-83-04
Citation: 2005 FCA 18
CORAM: LÉTOURNEAU J.A.
NOËL J.A.
PELLETIER J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
LOUIS LAVOIE
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered at the hearing at Montréal, Quebec, January 13, 2005)
LÉTOURNEAU J.A.
[1] The Umpire mistakenly found that no evidence of false or misleading statements had been given before the Board of Referees. But such evidence was in the record and before the Board of Referees, which, moreover, ruled on the question.
[2] As this Court suggested in Caverly v. Canada (Minister of Human Resources Development), 2002 FCA 92, this evidence consisted of a confirmation of the questions formulated on the applications made by the TELEDEC system, the possible replies to each of the questions, the TELEDEC reporting cards which reproduce in computerized form the claimant's replies to the questions recorded by the system, and, finally, a certificate of an officer of the Commission who repeats the questions asked and the answers given by the respondent for each of the claims thus recorded.
[3] The respondent said he was available for work and denied more than once his diligent participation in a course. In its reasons, the Board of Referees writes in this regard (see the applicant's record, at pages 104 and 105):
[translation]
It is true, as the claimant's counsel argued, that the fact that the claimant is taking a course is an ordinary presumption that he is not available and that he may prove the contrary. This is a question of credibility. For more than four months, the claimant stated that he was not taking a course, when he was doing so.
The members of the Board, having heard the claimant, cannot give credence to his testimony when he says he was available for work. If he had really been available for work, he would not have concealed this when he was making his statements.
[4] The application for judicial review will be allowed, the decision of the Umpire in relation to the penalties will be set aside and the matter will be returned to the Chief Umpire or to the person he designates for redetermination on the basis that the respondent's appeal from the decision of the Board of Referees, which upheld the penalties imposed by the Commission, must be dismissed. Since the respondent did not dispute this case, the application will be allowed without costs.
"Gilles Létourneau"
J.A.
Certified true translation
Jacques Deschênes, LL.B.
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A-83-04
STYLE: THE ATTORNEY GENERAL OF CANADA v. LOUIS LAVOIE
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: January 13, 2005
REASONS FOR JUDGMENT
OF THE COURT: LÉTOURNEAU J.A.
NOËL J.A.
PELLETIER J.A.
DELIVERED FROM THE
BENCH BY: LÉTOURNEAU J.A.
DATED: January 13, 2005
APPEARANCES:
Carole Bureau FOR THE APPLICANT
Louis Lavoie FOR THE RESPONDENT
SOLICITORS OF RECORD:
John Sims FOR THE APPLICANT
Deputy Attorney General of Canada
Ottawa, Ontario
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