Canada (Attorney General) v. Hudon, 2004 FCA 22

Date: 20040120

Docket: A-34-03

Neutral Citation: 2004 FCA 22

CORAM:        RICHARD C.J.

LÉTOURNEAU J.A.

NOËL J.A.

BETWEEN:

                                         THE ATTORNEY GENERAL OF CANADA

                                                                                                                                            Applicant

                                                                           and

                                                                DENIS HUDON

                                                                                                                                        Respondent

                                    Hearing held at Québec, Quebec, on January 20, 2004.

                   Judgment delivered from the bench at Québec, Quebec, on January 20, 2004.

REASONS FOR JUDGMENT OF THE COURT:                                              LÉTOURNEAU J.A.

Date: 20040120

Docket: A-34-03

Neutral Citation: 2004 FCA 22

CORAM:        RICHARD C.J.

LÉTOURNEAU J.A.

NOËL J.A.

BETWEEN:

                                         THE ATTORNEY GENERAL OF CANADA

                                                                                                                                            Applicant

                                                                           and

                                                                DENIS HUDON

                                                                                                                                        Respondent

                                     REASONS FOR JUDGMENT OF THE COURT

                          (Delivered from the bench at Québec, Quebec, on January 20, 2004)

LÉTOURNEAU J.A.

[1]                It is our opinion that this application for judicial review must be allowed.

[2]                The Employment Insurance Commission (the Commission) considered the respondent's financial situation and his ability to pay when it reduced by 10 % the penalty that it would normally have imposed. There was no new fact brought before the Board of Referees that would warrant its intervention. Under these circumstances, it did not have the authority to substitute its opinion for that of the Commission.

[3]                The umpire was correct to make such a finding since there was no evidence that the Commission had exercised its discretion in a perverse manner or in a way contrary to law: see pages 6 and 8 of his decision and Canada (Attorney General) v. Deen, 2003 FCA 435, Canada (Attorney General) v. Schembri, 2003 FCA 463, Canada (Attorney General) v. Antonio, [1998] F.C.J. No. 1518.

[4]                That said, the umpire did not, himself, have any authority to substitute his own assessment for that of the Commission. He erred in attacking the Commission's practice of establishing guidelines for itself to ensure a certain consistency and to avoid capriciousness in matters involving the imposition of penalties: Canada (Attorney General) v. Rumbolt, [2000] F.C.J. No. 1968, Canada (Attorney General) v. Lai, [1998] F.C.J. No. 1016.

[5]                This Court has held since 1998, in matters involving penalties levied by the Commission, that it is not appropriate to use the principles applicable to the assessment of the quantum of fines in penal matters: Turcotte v. Canada (Employment Insurance Commission), [1999] F.C.J. No. 311, Canada (Attorney General) v. Lai, supra.

[6]                It is surprising, if not disconcerting, to see that some umpires continue to do this, as is the case here, despite the unequivocal decisions by this Court: see Canada (Attorney General) v. Deen, 2003 FCA 435,Canada (Attorney General) v. Schembri, 2003 FCA 463.

[7]                The application for judicial review will be allowed without costs, the Umpire's decision set aside and the matter referred to the Chief Umpire or his designate for redetermination on the basis that the Commission's appeal from the decision of the Umpire should be allowed and the penalty assessed by the Commission restored.

                  "Gilles Létourneau"                 

J.A.

Certified true translation

Kelley A. Harvey, BA, BCL, LLB

                                                  FEDERAL COURT OF APPEAL

                                                      SOLICITORS OF RECORD

DOCKET:                                                                    A-34-03

STYLE OF CAUSE:               THE ATTORNEY GENERAL OF CANADA v.

DENIS HUDON

PLACE OF HEARING:                                              QUÉBEC, QUEBEC

DATE OF HEARING:                                                JANUARY 20, 2004

CORAM:                                                                     RICHARD C.J.

LÉTOURNEAU J.A.

                                                                                     NOËL J.A.

REASONS FOR JUDGMENT                                  LÉTOURNEAU J.A.

OF THE COURT:                         

DATE OF REASONS:                                                JANUARY 20, 2004

APPEARANCES:

Denis Hudon                                                                 FOR HIMSELF

Marie-Eve Sirois-Vaillancourt                            FOR THE RESPONDENT

SOLICITORS OF RECORD:                                                                                                          

Denis Hudon                                                                 FOR HIMSELF

Wemindji, Quebec

Department of Justice - Canada                                     FOR THE RESPONDENT

Montréal, Quebec