[1] This is an appeal from an order of Simpson J. dated November 7, 2000, in which the appellant's application for judicial review of a decision made by Human Resources Development Canada (the Commission) to collect an overpayment of unemployment insurance benefits was dismissed.

[2] This appeal revolves around Simpson J.'s conclusion that the appellant had received notification of his overpayment within the prescribed time limits set out in section 43 of the Unemployment Insurance Act. The appellant says he did not.

[3] There are two issues. The first is whether the appellant was treated unfairly because he was not given an opportunity to explain discrepancies in his evidence before contradictory evidence was introduced by the respondent, as required by the rule in Browne v. Dunn, (1893), 6 R. 67 (H.L.). The second is whether Simpson J. made palpable and overriding errors of fact.

[4] As to the first issue, the appellant argues that he was entitled to notice from the Commission that it would introduce evidence demonstrating that he had been given notice of its decision to claim overpayments, and relies on Browne v. Dunn, supra. That case stands for a rule of evidence that where the credibility of a witness is to be impeached by evidence that contradicts his testimony, the witness must be given a fair opportunity to explain the discrepancy. This is a rule grounded in fairness and reason. Its application depends upon the circumstances of the case (see Green v. Canada (Treasury Board) (2000), 254 N.R. 48 at para. 25; J. Sopinka, S.N. Lederman and A.W. Bryant, The Law of Evidence in Canada, 2nd ed., (Toronto: Butterworths, 1999) at 954-957). Simpson J. found that the appellant's evidence did not address the issue of whether he received notice. Therefore, it cannot be said that the later evidence contradicted his affidavit evidence and the rule in Browne v. Dunn, supra, cannot be said to apply. Further, counsel for the appellant did not object to the filing of that evidence by the Crown.

[5] As to the second issue, the recent Supreme Court of Canada decision in 2002 SCC 33">Housen v. Nikolaisen, 2002 SCC 33 indicates that an appellate court should not interfere lightly with the findings of fact reached by a Trial Judge; indeed, only where a palpable or overriding error exists on the record should a finding of fact be overturned. The majority noted at paragraph 23 that

it is not the role of appellate courts to second-guess the weight to be assigned to the various items of evidence. If there is no palpable and overriding error with respect to the underlying facts that the trial judge relies on to draw the inference, then it is only where the inference-drawing process itself is palpably in error that an appellate court can interfere with the factual conclusion. The appellate court is not free to interfere with a factual conclusion that it disagrees with where such disagreement stems from a difference of opinion over the weight to be assigned to the underlying facts.

[6] We discern no palpable or overriding errors of fact by Simpson J. She canvassed the evidence and pointed to the deficiencies in the appellant's case. She found that the evidence led to the conclusion that a Notice had been sent and received by the appellant in 1995.

[7] The appeal will be dismissed. This is not a case in which we believe costs are warranted.

"B. Malone"

J.A.

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-753-00

STYLE OF CAUSE: Frank Pirker and Her Majesty The Queen

PLACE OF HEARING: Calgary, Alberta

DATE OF HEARING: May 30, 2002

PLACE OF HEARING: Calgary, Alberta

REASONS FOR JUDGMENT

OF THE COURT BY: MALONE J.A.

DELIVERED FROM THE BENCH AT CALGARY, ALBERTA ON THURSDAY, MAY 30, 2002.

APPEARANCES:

Mr. Roger C. Stephens FOR THE APPELLANT

Ms. Rhonda L. Nahorniak FOR THE RESPONDENT

SOLICITORS OF RECORD:

Simons & Stephens FOR THE APPELLANT

Barristers & Solicitors

Mr. Morris A. Rosenberg FOR THE RESPONDENT

Deputy Attorney General of Canada

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Pirker v. Canada, 2002 FCA 235

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2002 FCA 235