Date: 20070118
Docket: A-526-05
Citation: 2007 FCA 55
CORAM: LÉTOURNEAU J.A.
EVANS J.A.
MALONE J.A.
BETWEEN:
VASILIOS BILL FTERGIOTIS
Applicant
and
HUMAN
RESOURCES DEVELOPMENT CANADA
Respondent
and
THE ATTORNEY GENERAL OF CANADA
Respondent
Heard at Vancouver, British
Columbia, on January 18, 2007.
Judgment delivered from the
Bench at Vancouver,
British
Columbia, on January 18, 2007.
REASONS FOR JUDGMENT OF THE COURT BY: EVANS
J.A.
Date: 20070118
Docket: A-526-05
Citation: 2007 FCA 55
CORAM: LÉTOURNEAU
J.A.
EVANS
J.A.
MALONE
J.A.
BETWEEN:
VASILIOS BILL FTERGIOTIS
Applicant
and
HUMAN RESOURCES DEVELOPMENT CANADA
Respondent
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered from the Bench at Vancouver, British Columbia, on January
18, 2007)
EVANS J.A.
[1]
This is an
application for judicial review by Vasilios Bill Ftergiotis to set aside a decision
of an Umpire, dated September 9, 2005 (CUB 61299B). The Umpire dismissed
Mr Ftergiotis’ appeal from the decision of a Board of Referees, dated July 31,
2003, upholding a penalty of $3,717.00 imposed by the Employment Insurance
Commission under section 38 of the Employment Insurance Act, S.C. 1996,
c. 23.
[2]
The
penalty was imposed on the basis that Mr Ftergiotis had misrepresented on nine
report cards that he had no earnings while receiving employment insurance
benefits. In fact he had employment income of $25,015 from the same employer
for October 13, 2001 to February 23, 2002, the entire period of his benefit
claim. These misrepresentations resulted in an overpayment of employment
insurance benefits of $5,168.00.
[3]
In addition
to the penalty, the Commission also determined that Mr Ftergiotis had incurred
a very serious violation pursuant to section 7.1 of the Act, which increased
the number of hours that he must work in order to be eligible in the future for
benefits.
[4]
Mr Ftergiotis
acknowledges that he misrepresented that he had no earnings and no employment
while in receipt of employment insurance benefits, and that he is liable to
repay the resulting overpayment. However, he says that he should not have to
pay the penalty as well, because the misrepresentations were not made
“intentionally”, but resulted from “a human error” and “confusion” caused by,
among other things, his employer’s pay system.
[5]
Mr
Ftergiotis is only liable to a penalty under section 38 if the Commission
became aware of facts which in its opinion established that he knew that his
misrepresentations were false. In our view, there was, as the Board of Referees
found, ample evidence to support the Commission’s opinion that Mr Ftergiotis
knew that he had earnings during the 17 weeks that he was receiving benefits.
[6]
In
particular, his employment was continuous, full time and of some duration (more
than 700 hours in 17 weeks), resulting in nine misrepresentations; he knew he
was working and should have reported that, even if he was in doubt about the
exact amount of his earnings; and the penalties previously imposed upon him,
which the Commission forgave, must have made him aware of his obligation to be
truthful in his reports. Nor is there any basis for finding that, in fixing the
amount of the penalty, the Commission failed to exercise its discretion under
subsection 38(2) in a lawful manner.
[7]
For these
reasons, the application for judicial review will be dismissed. The style of
cause will be amended by removing Human Resources Development Canada as a
respondent.
"John
M. Evans"
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-526-05
STYLE OF CAUSE: VASILIOS
BILL FTERGIOTIS. v.
HRDC and AGC
PLACE OF HEARING: Vancouver, British
Columbia
DATE OF HEARING: January
18, 2007
REASONS FOR JUDGMENT LÉTOURNEAU J.A.
OF THE COURT BY: EVANS
J.A.
MALONE J.A.
DELIVERED FROM THE BENCH BY: EVANS
J.A.
APPEARANCES:
|
Vasilios Bill Ftergiotis
|
ON HIS OWN BEHALF
|
|
Cindy W. Mah
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
|
John H. Sims, Q.C.
Deputy Attorney General of Canada
|
FOR THE
RESPONDENT
|
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