Date: 20020426
Docket: A-140-01
Ottawa, Ontario, April 26, 2002
CORAM: DÉCARY J.A.
NOËL J.A.
PELLETIER J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Plaintiff
and
LUC LANGELIER
Defendant
JUDGMENT
The application for judicial review is dismissed with costs.
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"Robert Décary"
J.A.
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Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
Date: 20020426
Docket: A-140-01
Neutral citation: 2002 FCA 157
CORAM: DÉCARY J.A.
NOËL J.A.
PELLETIER J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Plaintiff
and
LUC LANGELIER
Defendant
Hearing held at Montréal, Quebec on April 17, 2002.
Judgment rendered at Ottawa, Ontario on April 26, 2002.
REASONS FOR JUDGMENT: DÉCARY J.A.
CONCURRED IN BY: NOËL J.A.
PELLETIER J.A.
Date: 20020426
Docket: A-140-01
Neutral citation: 2002 FCA 157
CORAM: DÉCARY J.A.
NOËL J.A.
PELLETIER J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Plaintiff
and
LUC LANGELIER
Defendant
REASONS FOR JUDGMENT
DÉCARY J.A.
[1] The umpire had to decide whether the Canada Employment and Immigration Commission ("the Commission") could rely on the 72-month reexamination deadline mentioned in s. 43(6) of the Unemployment Insurance Act and concluded that no, in his opinion the Commission had not discharged its [Translation] " burden of proving that the claimant knowingly made false statements". In doing this, he reversed the decision of the board of referees which had upheld the Commission's decision.
[2] The "false statement" at issue in the case at bar is apparently a record of employment issued by an employer on July 2, 1991, and attached by the claimant to the claim for benefits which he filed on July 31, 1991. A lengthy inquiry was conducted by the Commission together with the RCMP in 1993 and 1994 to halt the issuing of improper records of employment among Atlantic fishermen. At the end of the investigation, the Commission said that in its opinion a record of employment submitted by the claimant was not in compliance and on January 20, 1995, it obtained a decision from Revenue Canada pursuant to s. 63(1) of the Act, without informing the claimant, to the effect that the employment held from June 10 to June 15, 1991, was not insurable (plaintiff's record, p. 35).
[3] The Commission informed the claimant of this decision on May 23, 1995. As the effect of this decision was to reduce to nine the number of weeks of insurable employment required for creating a benefit period, that is, one week less than the minimum ten required, the Commission cancelled the benefit period and requested an overpayment of $15,096. The Commission said that, in reviewing the claimant's claim after the deadline, it relied on s. 43(6) of the Act. Additionally, the Commission imposed no penalty.
[4] The record indicated that the claimant appealed Revenue Canada's decision, but in its decision the board of referees noted that neither the claimant nor his representative was in a position to say what the result of that appeal was (plaintiff's record, p. 88).
[5] With respect, I consider that the umpire misdirected himself when he imposed on the Commission a burden pursuant to s. 43(6) of proving [Translation] "that the claimant knowingly made false statements". That is actually the burden imposed by s. 33(1), dealing with penalties. All Parliament requires in s. 43(6) is that "in the opinion of the Commission, a false or misleading statement . . . has been made" (Canada (Attorney General v. Pilote (1998), 243 N.R. 203 (F.C.A.)). Of course, in order to arrive at this conclusion the Commission must be reasonably satisfied that "a false or misleading statement or representation has been made in connection with a claim".
[6] Counsel for the defendant argued that s. 43(6) only applied if the statement at issue was that of the claimant himself. In his submission, the extension of the review deadline authorized by that subsection is a provision which departs from the ordinary law and should not be interpreted so as to allow the government to go back six years to recover an overpayment from a claimant who did not make the statement.
[7] In the case at bar I am not persuaded that, by attaching the record of employment to his claim for benefits, the claimant did not adopt the record, but in any case I cannot accept counsel's argument for the following reasons.
[8] This proposition would be attractive if the extension of the review deadline could only operate to the claimant's detriment. That is not the case. It appears from the very wording of s. 43 that the review is a procedure which allows the Commission to change its mind in one direction or the other: the review may equally lead to a reimbursement of an overpayment by the claimant as to a payment by the Commission of benefits hitherto denied or payment of additional benefits by the Commission. The wording of s. 43(6) must be applicable whether an overpayment or a reimbursement is in question. Requiring that the false statement or representation come only from the claimant would be to potentially deprive a claimant of an extension of time which he would have been allowed to rectify his situation.
[9] The relevant passages of s. 43 are the following:
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43. (1) Notwithstanding section 86 but subject to subsection (6), the Commission may at any time within thirty-six months after benefit has been paid or would have been payable reconsider any claim made in respect thereof and if the Commission decides that a person has received money by way of benefit thereunder for which he was not qualified or to which he was not entitled, or has not received money for which he was qualified and to which he was entitled, the Commission shall calculate the amount that was so received or payable, as the case may be, and notify the claimant of its decision.
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43. (1) Nonobstant l'article 86 mais sous réserve du paragraphe (6), la Commission peut, dans les trente-six mois qui suivent le moment où des prestations ont été payées ou sont devenues payables, examiner de nouveau toute demande au sujet de ces prestations et, si elle décide qu'une personne a reçu une somme au titre de prestations pour lesquelles elle ne remplissait pas les conditions requises ou au bénéfice desquelles elle n'était pas admissible ou n'a pas reçu la somme d'argent pour laquelle elle remplissait les conditions requises et au bénéfice de laquelle elle était admissible, la Commission calcule la somme payée ou payable, selon le cas, et notifie sa décision au prestataire.
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...
(3) If the Commission decides that a person has received money by way of benefit for any period in respect of which he was not qualified or money by way of benefit to which he was not entitled, the amount therefor as calculated under subsection (1) is the amount repayable under section 35.
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...
(3) Si la Commission décide qu'une personne a reçu une somme au titre de prestations auxquelles elle n'avait pas droit ou pour une période durant laquelle elle n'était pas admissible, la somme calculée en vertu du paragraphe (1) est celle qui est remboursable conformément à l'article 35.
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(4) If the Commission decides that a person was qualified and entitled to receive money by way of benefit, and the money was not paid, the amount thereof as calculated under subsection (1) is the amount payable to the claimant.
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(6) Where, in the opinion of the Commission, a false or misleading statement or representation has been made in connection with a claim, the Commission has seventy-two months within which to reconsider the claim under subsection (1).
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(4) Si la Commission décide qu'une personne n'a pas reçu la somme au titre de prestations pour lesquelles elle remplissait les conditions requises et au bénéfice desquelles elle était admissible, la somme calculée en vertu du paragraphe (1) est celle qui est payable au prestataire.
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(6) Lorsque la Commission estime qu'une déclaration ou représentation fausse ou trompeuse a été faite relativement à une demande de prestations, elle dispose d'un délai de soixante-douze mois pour réexaminer la demande en vertu du paragraphe (1).
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[10] The wording of s. 43(6) is clear. The statement at issue must have been made "in connection with a claim" ("relativement à une demande de prestation"). An initial claim for benefits (s. 39) is made by completing a form in which the claimant makes certain statements himself and to which he is required to attach "a record of employment from each employer" (box 37 of the form, plaintiff's record, p. 7). At the outset, therefore, any claim for benefits assumes that statements are made by the claimant and the employer. To this may be added during the investigation, as in the case at bar, statements obtained, for example, from a former employer or a fellow employee. Section 88 of the Act even provides that the phrase "claims for benefit" shall be read "as including references arising in relation to those claims". There can be no doubt that it follows that the words "statement or representation . . . in connection with a claim" are especially broad and refer to any statement made by anyone in connection with a claim for benefits.
[11] When Parliament intended to deal solely with a statement by a claimant, or one by an employer, it said so expressly, as in s. 33(1) and (2) of the Act. Similarly, in s. 103 dealing with offences and punishment, s. 103(1)(a) covers anyone who "in relation to any claim for benefit, makes a statement or representation that he knows to be false or misleading", while s. 103(1)(d) covers anyone who "makes any claim or declaration that by reason of non-disclosure of facts he knows is false or misleading" (my emphasis).
[12] In short, neither the wording of s. 43(6), the legislative background nor the purpose of extending the review deadline provide a basis for limiting the possibility of an extension only to cases in which the statement at issue is made by the claimant himself. Indeed, this was already decided by the umpires Denault, Strayer and Nadon in CUBs 18833 (Réjean Monger), 20994 (Jean-Claude Eliacin) and 43190 (Normand Péladeau).
[13] Having said that, the question remains: could the Commission in the very exceptional circumstances of this case, all explained by the umpire, reasonably come to the conclusion that a false or misleading statement or representation was made?
[14] Although he imposed an unduly heavy burden on the Commission, the umpire nevertheless concluded after an exhaustive review of the evidence that no false statement was made. Consequently, it is not important that he may have erred in requiring evidence of a false statement made knowingly, since in his opinion there was simply no false statement. My function here is to decide whether the umpire could arrive at the conclusion that the board of referees had come to a conclusion in a patently unreasonable way that the Commission had discharged its burden of proving that there was a false statement.
[15] The only basis for the conclusion of the Commission, and the board of referees thereafter, was the decision by Revenue Canada on non-insurability on January 20, 1995. I note that this decision was rendered without the claimant's knowledge and even without his being questioned by Revenue Canada. The decision is exceedingly terse. It is to be found at p. 35 of the plaintiff's record. The reason given by the Commission to justify its request for a decision is the following:
[Translation]
Determine the number of weeks of employment and insurable earnings. (No proof of payment)
and Revenue Canada's decision is stated as follows:
[Translation]
Uninsurable employment for Bruno Duguay: real employer did not meet the requirements of s. 3(1)(a) of Act.
Produits Marin St-Godefroi Inc. was deemed employer for purposes of collection of premiums under s. 18(1) and (2) U.I.R. (C.P.)
[16] The umpire commented on this decision as follows:
[Translation]
The Commission relied exclusively on Revenue Canada's decision regarding the insurability of the employment of fisherman's helper in cancelling the benefit period established for Luc Langelier. The evidence in the record clearly showed that neither Mr. Aubur nor Ms. Acteson were questioned about the record of employment issued to Mr. Langelier. In fact, Ms. Acteson stated that fishermen's helpers could have obtained records of employment and that she never issued false records of employment.
Further, I do not accept the Commission's submission that Mr. Langelier was not paid for his week's work. Bruno Duguay, the owner-master of the boat, indicated that he paid him the sum of $680 for fishing in June 1991. The fact that there is no trace of the cheque over three years after the event certainly does not prove no wages were paid.
[17] It should be borne in mind that s. 43(6) is part of an "exceptional [system], which is a departure from the ordinary law" and must be "strictly construed" (Laforest v. Canada (Attorney General) (1988), 97 N.R. 95 (F.C.A.), per Lacombe J., para. 22). Accordingly, the burden of proof on the Commission when it wishes to go back more than three years to claim reimbursement of an overpayment from a claimant is not a light one. As indicated by the case at bar, the consequences suffered by a claimant may be significant. In circumstances like these, the Commission cannot simply rely on a Revenue Canada decision rendered without the claimant's knowledge, based on such a vague allegation as [Translation] "no proof of payment" and giving reasons as brief as they were vague.
[18] What is more, Revenue Canada's refusal to give statements the same legal effect as that desired by a claimant does not in itself lead to the conclusion that there was a false statement. Similarly, a decision which, as in the case at bar, is based on the absence of any proof of payment does not by itself support a conclusion that no payment was made and that it is false to say that there was a payment. When the Commission exercises a separate power conferred on it by s. 43(6), it has a duty to tell the claimant precisely why, for the particular purposes of the exercise it is undertaking under that subsection, the statement seems false.
[19] Also, although he did not use these terms, the umpire made no reviewable error when he concluded that for all practical purposes it was patently unreasonable for the Commission and the board of referees to consider in the circumstances of the case at bar that there was a false statement simply on the basis of the decision rendered by Revenue Canada.
[20] I would dismiss the application for judicial review with costs.
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"Robert Décary"
J.A.
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"I concur,
Marc Noël J.A."
"I concur,
J.D. Denis Pelletier J.A."
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
FEDERAL COURT OF CANADA
APPEAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: A-140-01
STYLE OF CAUSE: ATTORNEY GENERAL OF CANADA v. LUC LANGELIER
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: APRIL 17, 2002
REASONS FOR JUDGMENT OF THE COURT BY: Décary J.A.
CONCURRED IN BY: Noël J.A.
Pelletier J.A.
DATED: APRIL 26, 2002
APPEARANCES:
Carole Bureau FOR THE PLAINTIFF
Pierre Riopel FOR THE DEFENDANT
SOLICITORS OF RECORD:
Morris Rosenberg FOR THE PLAINTIFF
Deputy Attorney General of Canada
Ottawa, Ontario
Pierre Riopel (for himself) FOR THE DEFENDANT
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