Canada (Attorney General) v. Pawchuk, 2007 FCA 231

 

 

 

Date: 20070613

Docket: A-504-06

Citation:  2007 FCA 231

 

CORAM:       DÉCARY J.A.

                        SEXTON J.A.

                        PELLETIER J.A.

 

BETWEEN:

THE ATTORNEY GENERAL OF CANADA

Applicant

and

SONNY W. PAWCHUK

Respondent

 

 

 

Heard at Edmonton, Alberta, on June 11, 2007.

Judgment delivered from Calgary, Alberta, on June 13, 2007.

 

REASONS FOR JUDGMENT BY:                                                                DÉCARY J.A

 

 

CONCURRED IN BY:                                                                                    SEXTON J.A.

                                                                                                                        PELLETIER J.A.

 

 

 

 

Date: 20070613

Docket: A-504-06

Citation:  2007 FCA 231

 

CORAM:       DÉCARY J.A.

                        SEXTON J.A.

                        PELLETIER J.A.

 

BETWEEN:

THE ATTORNEY GENERAL OF CANADA

Applicant

and

SONNY W. PAWCHUK

Respondent

 

 

REASONS FOR JUDGMENT

DÉCARY J.A.

[1]               The Attorney General of Canada seeks judicial review of a decision whereby an Umpire reduced the penalty which had been imposed by the Employment Insurance Commission and confirmed by the Board of Referees. The Respondent had been penalized under section 38 of the Employment Insurance Act for having knowingly failed to declare earnings during a benefit period.

[2]               The Umpire reduced the penalty in view “of the repayment of benefits and co-operative conduct” by the claimant. These were, in my respectful view, irrelevant considerations.

 

[3]               This Court has repeatedly held that mitigating circumstances are those present before or at the time the penalty is imposed. (See Canada (Attorney General) v. Gagnon, 2004 FCA 351; Canada (Attorney General) v. Morin, [1997] F.C.J. No. 112; Rousseau  v. Canada (Attorney General), 2006 FCA 111.)

 

[4]               Repayment of benefits is, generally, as in this case, a fact that happens once the penalty has been imposed. It is self evident that the Commission cannot be expected, in exercising its discretion, to consider events that have not occurred at the time it imposes the penalty.

 

[5]               Admission of guilty conduct upon being confronted with the offence by the Commission is not, in and of itself, a mitigating factor. To admit that an offence has been committed is not to explain why one has committed it.  The penalty being “a deterrent necessary to protect the whole

Scheme” (Attorney General of Canada v. Lai, (1998), 229 N.R. 42 (F.C.A.)), it would be too easy for a claimant who has not come forward with an admission to avoid or reduce a penalty simply by co-operating with the Commission once he is caught.

 

[6]               The application for judicial review is allowed, the decision of the Umpire is set aside and the matter is sent back to the Chief Umpire or his designate for a re-determination on the basis that the appeal from the Decision of the Board of Referees ought to be dismissed.

 

[7]                Costs were not sought.

 

 

    ______”Robert Décary”_______

                        J.A.

 

“I agree

    J. Edgar Sexton J.A.”

 

“I agree

    “J. D. Denis Pelletier J.A.”

FEDERAL COURT OF APPEAL

 

NAMES OF COUNSEL AND SOLICITORS OF RECORD

 

 

 

DOCKET:                                                                              A-504-06

 

STYLE OF CAUSE:                                                              The Attorney General of Canada v. Sonny Pawchuk                                                    

PLACE OF HEARING:                                                        Edmonton, Alberta

 

DATE OF HEARING:                                                          June 11, 2007

 

REASONS FOR JUDGMENT BY:                                     DÉCARY J.A.

 

CONCURRED IN BY:                                                         SEXTON, PELLETIER, JJA.

 

DATED:                                                                                 June 13, 2007

 

 

APPEARANCES:

 

Ms. Leslie Akst	FOR THE APPLICANT
Mr. Sonny Pawchuk	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

Mr. John H. Sims, Q.C. Deputy Attorney General of Canada	FOR THE APPLICANT
Mr. Sonny Pawchuk Edmonton, Alberta	FOR THE RESPONDENT