Docket: A-142-14
Citation:
2015 FCA 22
|
CORAM:
|
RYER J.A.
WEBB J.A.
BOIVIN J.A.
|
|
BETWEEN:
|
|
SATHEESKARAN PRASAD
|
|
Appellant
|
|
and
|
|
THE MINISTER OF EMPLOYMENT AND SOCIAL DEVELOPMENT AND MINISTER OF
MULTICULTURALISM, AND ATTORNERY GENERAL OF CANADA
|
|
Respondents
|
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario, on January 27, 2015).
RYER J.A.
[1]
This is an appeal from an order of Hughes, J.
(the “Judge”) of the Federal Court (Docket
T-1706-13) granting the Respondent’s Motion to Strike Out Mr. Prasad’s Notice
of Application and dismiss application T-1706-3 (“the
Application”).
[2]
The Application arose in connection with a
decision of the Employment Insurance Commission (the “Commission”)
to impose an $8,000 administrative penalty on Mr. Prasad, pursuant to paragraph
39(1) (a) of the Employment Insurance Act, S.C. 1996, c. 23 (“the Act”), on the basis that he had made false or
misleading representations by issuing two fraudulent records of employment regarding
RATNA IT CONSULTANCY INC.
[3]
Rather than pursuing his right to have the
Commission reconsider the imposition of this penalty, on the basis permitted by
section 112 of the Act, Mr. Prasad filed the Application in which he asked the
Federal Court for:
a) a declaration that:
i) the
Commission’s official’s decision is a perverse and capricious one based on no evidence;
ii) the
Commission’s officials are engaging in abuse of process and misfeasance in
public office;
iii) the decision is
wrong in fact and law;
iv) the
decision is void, ab initio, in its complete failure to provide reasons
in accordance with, inter alia, the Supreme Court of Canada’s decision
in Baker v. Minister of Citizenship and Immigration, [1999] 2 S.C.R. 819;
b) an
order (in the nature) of certiorari quashing the decision issued, dated
September 26th, 2013;
c) an
order (in the nature) of prohibition, prohibiting the Commission’s
officials from taking any collection action on the $8,000 until the within Application
has been disposed of by the Federal Court;
d) solicitor-client costs of the Application and such
further relief as counsel may advise and the Federal Court grant.
[4]
In response, the Respondents brought a motion to
strike on the basis that the Application was bereft of any possibility of
success because Mr. Prasad had failed to pursue the remedies provided in the
Act.
[5]
The Judge exercised his discretion and dismissed
the Application, essentially stating that Mr. Prasad had not exhausted his
remedies under the Act and that the allegation of bias was premature.
[6]
This Court can only interfere with the Judge’s
discretionary decision if he proceeded on a wrong principle of law, gave
insufficient weight to relevant factors, misapprehended the facts or where an
obvious injustice would otherwise result (See Apotex Inc. v. Canada
(Governor in Council), 2007 FCA 374 at para 15).
[7]
The Appellant asserts that the Judge’s decision
should be set aside because it lacks reasons and is unintelligible. While it
would have been preferable if the Judge’s reasons had been more fulsome, they
are nonetheless sufficient for us to discern the basis upon which made his
decision.
[8]
The jurisprudence of this Court is clear that
where Parliament has established an administrative process for the adjudication
of disputes, in absence of any special circumstances, it should be followed
before resort may be had to the courts by way of judicial review: see Bonamy
v. The Attorney General of Canada, 2009 FCA 156, The President of the
Canada Border Services Agency and the Attorney General of Canada v. C.B. Powell Limited, 2010 FCA 61 (“C.B. Powell
Limited”).
[9]
The Act contains a comprehensive legislative
scheme which may be used to challenge the imposition of an administrative
penalty under paragraph 39(1)(a) of the Act, such as that imposed upon
Mr. Prasad. These include the right under section 112 of the Act to a
reconsideration of a decision of the Commission and the right under section 113
of the Act to appeal a reconsideration decision to the Social Security Tribunal
established under section 44 of the Department of Human Resources and Skills
Development Act.
[10]
In the circumstances of this appeal, we are of
the view that Mr. Prasad’s failure to follow these procedures provides a
complete justification for the Judge’s decision. Moreover, Mr. Prasad has not
convinced us that there are any circumstances that would meet the high
threshold for exceptional circumstances that are necessary in order to permit
early recourse to the courts (See C.B. Powell Limited at para 33).
[11]
With respect to the issues of bias, malfeasance of
public office and abuse of process, the record contains little more than the
assertions of counsel for the Appellant. Moreover, these are matters that could
have been put forward before the Commission in a section 112 reconsideration
and thereafter the Social Security Tribunal in a section 113 appeal.
[12]
With respect to the issue of whether the
activities of the Commission’s officials prior to the imposition of the administrative
penalty constitute a criminal investigation, it is sufficient to note that by
virtue of subsection 135(2) of the Act, the imposition of an administrative
penalty under subsection 39 of the Act precludes the possibility of any
prosecution under subsection 135(1) of the Act. As a consequence, the imposition
of the administrative penalty on Mr. Prasad under paragraph 39(1)(a) of the Act
effectively establishes that the impugned activities could not lead to a
prosecution of Mr. Prasad under the Act.
[13]
Whether or not the impugned activities on the
part of the Commission’s officials in fact included any sharing of information
with the RCMP is not a matter of concern to this Court. If any such sharing
occurred, it will be open to Mr. Prasad to seek redress in another forum. The
possibility that such sharing may have occurred is irrelevant to, and no bar to
the imposition of, the administrative penalty that was imposed on Mr. Prasad
under the Act.
[14]
In conclusion, for the reasons given, we are
unpersuaded that the Judge, in granting his discretionary order, made any error
that would warrant our intervention. Although the Judge’s order states that “This application is dismissed”, in the context of
dealing with the Respondents Motion to Strike Out Mr. Prasad’s Application, it
is clear to us that he was striking out the Application. Accordingly, the
appeal will be dismissed without costs.
"C. Michael Ryer"
Email this Content