Date: 20220215

Docket: A-320-19

Citation: 2022 FCA 29

[ENGLISH TRANSLATION]

CORAM:		GAUTHIER J.A. DE MONTIGNY J.A. LEBLANC J.A.
	BETWEEN:
	MICHEL FAULLEM
	Applicant
	and
	THE ATTORNEY GENERAL OF CANADA
	Respondent

Heard at Ottawa, Ontario, on December 2, 2021.

Judgment delivered at Ottawa, Ontario, on February 15, 2022.

REASONS FOR JUDGMENT BY:	GAUTHIER J.A.
CONCURRED IN BY:	DE MONTIGNY J.A. LEBLANC J.A.

 

Date: 20220215

Docket: A-320-19

Citation: 2022 FCA 29

CORAM:		GAUTHIER J.A. DE MONTIGNY J.A. LEBLANC J.A.
	BETWEEN:
	MICHEL FAULLEM
	Applicant
	and
	THE ATTORNEY GENERAL OF CANADA
	Respondent

REASONS FOR JUDGMENT

GAUTHIER J.A.

[1] Mr. Faullem is asking this Court to set aside a decision of the Appeal Division of the Social Security Tribunal of Canada (the Appeal Division). The Appeal Division dismissed an appeal from the decision of the General Division of the Tribunal confirming that the Canada Employment Insurance Commission (the Commission) was correct to tell the applicant that money retroactively received from the Commission des normes, de l’équité, de la santé et de la sécurité du travail (CNESST) for the weeks during which he had received Employment Insurance benefits was earnings, and that the applicant therefore had to pay back an overpayment of $26,945.00.

[2] The decision of the Appeal Division (Michel Faullem v. Canada Employment Insurance Commission (July 3, 2019), AD-18-302) and the decision of the General Division (Michel Faullem v. Canada Employment Insurance Commission (March 28, 2018), GE‑17‑3246/GE‑17‑3248/GE‑17-3249/GE-17-3250) involve four different files (AD-18-302, AD-18-303, AD-18-304 and AD-18-306) covering four different benefit periods under the Employment Insurance Act, S.C. 1996, c. 23 (the Act), beginning May 19, 2013 and ending December 11, 2016.

[3] In 2013, the applicant’s employment ended after he was psychologically harassed, as confirmed in two Tribunal administratif du travail (TAT) of Quebec decisions dated June 3 and November 8, 2016. Following the November 8 decision, the CNESST paid him, for the period from May 16, 2013 to January 1, 2017, a daily amount as an income replacement benefit.

[4] After the applicant informed the Commission that these amounts had been received in 2017, the Commission notified him that this information would have an impact on the benefits that he had received and that there would be an overpayment to be repaid for each of the benefit periods that would be confirmed by notices of debt.

[5] The position of the applicant, who is not represented by counsel, has evolved considerably since his first appeal to the General Division. It is clear that he has put a good deal of time and effort into presenting his case. He spent months refining his written submissions to the Appeal Division (see para. 9 of the decision); he filed these submissions through numerous overlapping appendices containing countless references that are difficult to locate in the records of the parties before this Court.

[6] Although the Appeal Division explained to him that its powers were limited to the issues described in subsection 58(1) of the Department of Employment and Social Development Act, S.C. 2005, c. 34 (DESDA) and that the appeal did not constitute a de novo hearing, the applicant was expecting a detailed analysis of each and every point that he had raised in his written submissions, even those points that he considered were implicit or not apparent.

[7] Before undertaking the analysis of the issues before this Court, it is important to point out, as this Court did at the hearing, that an application for judicial review is subject to strict standards of review, and that it does not allow this Court to substitute its own discretion or its interpretation of the statutory provisions for those of the administrative decision-maker to which Parliament has entrusted this task. An application for judicial review is not an action for damages for negligence or even misconduct in the administration of the Act.

[8] The complexity of social legislation is a harsh reality for self-represented litigants. However, the multi-level administrative justice system established by Parliament in the Act cannot be considered a learning period that allows parties to perfect the analysis of their file and of the legislation so as to be able to raise new issues at any time. This system also cannot be used to obtain legal opinions on issues that may arise later or to explain provisions that do not apply in the case at hand.

[9] That said, after a thorough review of this case, and for the reasons that follow, I find that the decision before this Court does not contain any reviewable error that could warrant the intervention of this Court, except with respect to an amount of $1,103.60 that the applicant repaid to the Canada Revenue Agency (CRA) for the 2016 taxation year.

I. The Facts

[10] I have highlighted a few facts in my introduction, but further details are needed to better contextualize the issues raised before this Court. Naturally, I do not intend here to provide details with respect to all the facts that the applicant included in his 40-page memorandum or in his application record.

[11] I have reproduced below a part of the summary table included at page 151 of the applicant’s record in order to show the benefit periods at issue, the date on which the applicant was informed of the allocation of the amounts received, the dates of the notices of debt, and the overpayment amounts calculated by the Commission.

 

[TRANSLATION]

[12] After having received the notices of debt, the applicant made a request to the Commission for a reconsideration pursuant to section 112 of the Act. It is the decisions confirming the amounts to be repaid that the applicant challenged before the General Division. The Commission’s September 1, 2017 decision regarding period 4 (AD‑18-306 above) indicates that the amount of the overpayment was $8,041.00, being the $11,126.00 amount shown in the table above less a $3,085.00 tax adjustment amount collected by the CRA (page 472 of the respondent’s record).

[13] As it appears from the General Division’s March 28, 2018 decision, what the applicant was essentially questioning was the accuracy of the calculations and of the tables provided to him, as well as the poor quality of the service received from Commission officers. This allegedly made it significantly more difficult for the applicant to understand the situation and the amounts that he was being asked to repay, especially considering that he was undergoing a psychological assessment at the time.

[14] I also note that the General Division specified that if adjustments to the amounts reported by the applicant as earnings in the past were necessary, the Commission had to be contacted directly. Similarly, any issue regarding the impact of tax deductions, the possibility of being reimbursed for the income tax that was deducted from the Employment Insurance benefits, and any issue relating to a tax adjustment for the 2016 taxation year had to be addressed to the CRA since these issues fell outside the Tribunal’s jurisdiction.

[15] The tax adjustment issue referred to above was to determine why the Commission had not deducted the full $4,188.00 amount that was actually collected by the CRA rather than only the $3,085.00 amount that was apparently received by the Commission.

[16] The debate became more intense before the Appeal Division. To avoid repetition, I will address the relevant findings of the General Division and of the Appeal Division in greater detail in my analysis.

[17] The most relevant statutory provisions have been reproduced in the Appendix to these reasons.

II. Issues

[18] The Appeal Division summarized what it considered to be the seven main issues raised before it as follows:

Issue 1: Did the General Division err by finding that the amounts the Claimant received from the CNESST as income replacement benefits constituted earnings under section 35(2)(b) of the EI Regulations and that those earnings had been allocated in accordance with section 36(12)(d) of the EI Regulations?

Issue 2: Did the General Division err by failing to consider how the Commission treated the Claimant?

Issue 3: Did the General Division err by failing to consider the calculation errors in the allocation of the Claimant’s earnings?

Issue 4: Did the General Division err by ignoring that the Claimant repaid benefits through a tax adjustment for the May to December 2016 period?

Issue 5: Did the General Division err by ignoring section 145(2) of the EI Act?

Issue 6: Did the General Division err by failing to apply the 36-month limitation period set out in section 52 of the EI Act or, alternatively, by failing to apply section 46.01 of the EI Act?

Issue 7: Did the General Division err by failing to write off the Claimant’s debt?

[19] The applicant pressed these issues before this Court (except for issue 5, which he abandoned) because he submits that the Appeal Division’s answers were all unreasonable (memorandum of the applicant at para. 63). He argues that the Appeal Division did not sufficiently justify its decision in several respects, particularly with regard to issue 6. To make things easier to understand, I have used the numbering of the issues before the Appeal Division in my analysis.

[20] The applicant also adds that the Appeal Division should have addressed section 56.1 of the Employment Insurance Regulations, SOR/96-332 (the Regulations), which places certain limitations on the Commission’s power to assess penalties or interest against a claimant. According to him, this was necessary because he suspects that the $1,103.60 amount ($4,188.00 – $3,085.00), which is as yet unjustified, was probably collected as interest or a penalty (see summary table on page 16 of the memorandum of the applicant and para. 185 of the memorandum) and that it could not do so at this stage.

[21] The applicant submitted new arguments before this Court, such as the possible application of subparagraph 35(10)(a)(ii) of the Regulations (summary table mentioned above and para. 185 of the memorandum). According to him, this provision is relevant because it allows his expenses to be deducted if the benefits received from the CNESST constitute earnings. In my view, there is no need to exercise this Court’s discretion to reply to these new arguments in the context of this application for judicial review because there are no exceptional circumstances in this case that warrant an exception to the general principle to be applied and because there is a lack of evidence in the record that would make it possible to apply subparagraph 35(10)(a)(ii) or to determine, as he also requested, the nature of the administrative costs within the meaning of section 46.01 of the Act (Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] S.C.J. No. 61, cited in Merck Canada Inc. v. Canada (Health), 2021 FCA 224, [2021] F.C.J. No. 1906 at para. 63; Tsleil-Waututh Nation v. Canada (National Energy Board), 2016 FCA 219 at para. 78).

[22] At the risk of repeating myself, this Court’s role in this application for judicial review is limited. The standard of reasonableness applies to all the issues raised before this Court, including to the alleged errors of law (interpretation of the Act and the Regulations). Indeed, even though the applicant sometimes used expressions such as [translation] “breach of the principle of natural justice” or [translation] “violation” of this principle, what he is actually challenging is the impact of the interpretation adopted by the Appeal Division (see, for example, Appendix 16, entitled [translation] “Natural Justice”, which was submitted to the Appeal Division; pages 124–126 of the applicant’s record; pages 979, 980, 990, 1031, 1555, 1556, 1572 and 1573 of the respondent’s record; and para. 59 of the memorandum of the applicant). There is no situation before this Court that could remotely constitute a breach of procedural fairness or of the principles of natural justice pursuant to subsection 58(1) of the DESDA.

III. Analysis

[23] I would like to begin by pointing out that the principle of transparency and justification does not require the decision-maker to state its position regarding each issue raised by a party and to address each and every argument that a party has advanced to support a position. I therefore do not intend to attempt to summarize the lengthy submissions made by the applicant, which are not always very clear. It must be said that the applicable statutory provisions cannot be faulted for lack of clarity. I have therefore read and reread several times the arguments put forward by the applicant to ensure that I understand them and grasp their meaning, and I have provided commentary only where I believe that it is essential. Any other argument or submission must be deemed to have been rejected as unfounded.

Issue 1: Do the amounts received from the CNESST constitute earnings subject to allocation?

[24] The General Division and the Appeal Division both found that the amounts received from the CNESST were earnings for the purposes of section 45 of the Act, which concerns repayments by claimants of benefit overpayments.

[25] In paragraphs 29 to 35 of its decision, the General Division first considered the nature of the amounts received by the applicant. In addition to the application of sections 35 and 36 of the Regulations, the General Division considered the case law stating that earnings within the meaning of the Act include any receipt or consideration received for the work done. To be considered earnings, income must arise out of employment, or there must be a sufficient connection between the claimant’s employment and the sum received (Canada (Attorney General) v. Roch, 2003 FCA 356, [2003] F.C.J. No. 1429 (Roch)).

[26] The General Division then reviewed the evidence in the record to determine the nature of the amounts received and referred to the letters issued by the CNESST, which clearly showed that the disputed amounts paid to the applicant retroactively were paid as income replacement benefits for the period from May 16, 2013 to January 1, 2017. It then noted that pursuant to paragraph 35(2)(b) of the Regulations, workers’ compensation payments of this nature received by a claimant constitute earnings. Relying on case law in which the facts were similar, the General Division found that the amounts received in this case constituted earnings to be allocated in accordance with the regulatory requirements.

[27] In its decision, the Appeal Division first confirmed that the evidence in the record (i.e. the letters from the CNESST) made it possible for the General Division to find that the amounts at issue were paid as income replacement benefits. It then confirmed that the General Division’s determination to the effect that these were earnings subject to allocation was in accordance with the Regulations and was supported by settled case law.

[28] The applicant is not challenging the validity of paragraph 35(2)(b) of the Regulations, which provides for earnings for benefit purposes, particularly with respect to the application of sections 45 and 46 of the Act.

[29] Rather, he is challenging its application in this case on the basis of two submissions. Firstly, according to him, there is no sufficient connection between these amounts and his employment, as required in Roch (see, a contrario, at the bottom of page 991 of the respondent’s record). In his opinion, his case is unique. He adds that this issue has never been decided by a higher court.

[30] Secondly, the applicant states that this provision of the Regulations has been misinterpreted because of a misconception of section 45, to which this provision refers and which, in his view, does not apply to his case.

[31] At the hearing before this Court, the applicant added that the concept of entire income is not the same as the concept of earnings within the meaning of the Act.

[32] In Roch, this Court clearly indicated at paragraphs 35 and 38 that the Commission may, by regulation, add to the usual definition of the word “earnings” (“rémunération” in French) gains or income that, in reality, are not earnings but resemble them in certain respects. This is exactly what the Commission did in paragraph 35(2)(b).

[33] The issue of connection with employment only serves to delineate the Commission’s regulatory power set out in section 54 of the Act and to ensure that income that has no connection with employment, such as family allowances, is not included by regulation in the concept of earnings for benefit purposes. It is also used to interpret regulations when their application to a given situation is not clear, as in Roch. The fact remains that in the absence of a challenge to the validity of a clear provision, the Tribunal must apply the provision.

[34] In this case, as noted in Rock, this Court had already stated as early as 1986 in Côté v. Canada (Employment and Immigration Commission) (1986), 69 N.R. 126 (F.C.A.), [1986] F.C.J. No. 447 (F.C.A.) (QL), that income replacement benefits received as workers’ compensation were clearly earnings that could validly be compared to earnings by regulation because the connection between such earnings and the past or present employment was obvious.

[35] It was therefore reasonable for the Appeal Division to find that the General Division had not erred in applying the clear wording of paragraph 35(2)(b) of the Regulations to the applicant’s situation because the payments received by the applicant were related to the occupational injury or disease that he had experienced in the course of his employment (see the TAT’s November 8, 2016 decision).

[36] The determination regarding the nature of the amounts received was, as the Appeal Division stated, supported by the evidence in the record before the General Division. This determination regarding this question of fact was therefore reasonable.

[37] In this respect, it should be noted, as the respondent did, that the regulatory impact analysis statement for the Unemployment Insurance Regulations, amendment (Regulatory Impact Analysis Statement), Canada Gazette, Part II (1947–1997), vol. 123, No. 7 (March 29, 1989) at page 1918 (RIAS), which accompanied the first draft of what became paragraph 35(2)(b) of the Regulations, referred specifically to income replacement indemnities received pursuant to provincial legislation such as that in effect at the time in Quebec in order to prevent double indemnification during benefit periods.

[38] I also note that the fact that a claimant must challenge the denial of his or her benefits claim by organizations such as the CNESST (in which the CSST’s jurisdiction has been vested) by making a request for reconsideration and filing an appeal is not unique either. For example, in Canada Employment Insurance Commission v. A.D., 2017 SSTADEI 179 (A.D.), the claimant had to make similar efforts and wait two years before receiving a retroactive payment of income replacement benefits as workers’ compensation. I further note in this regard that Lacasse v. Canada (Employment Insurance Commission), 1998 CanLII 7512, [1998] F.C.J. No. 319 (F.C.A.), which was applied in A.D., had already dealt with income replacement benefits received over a long period of time pursuant to the Act respecting industrial accidents and occupational diseases, confirming that such benefits were subject to allocation.

[39] I will address the issue of whether paragraph 35(2)(b) applies, given the applicant’s proposed interpretation of section 45, under issue 6. However, as I will explain below, there is nothing to support a finding that the Appeal Division’s interpretation of paragraph 35(2)(b) is unreasonable. In addition, the reasons provided in this respect, although brief, are sufficient to understand the Appeal Division’s reasoning.

[40] Before turning to the second issue, I should mention that the applicant has yet to submit any evidence to any administrative decision-maker involved in his files to support his position that he was entitled to deductions for the time that he spent and the expenses that he incurred in obtaining decisions from the TAT in order to force the CNESST to pay him the income replacement benefits. As I stated, the argument based on subsection 35(10) of the Regulations is new. The applicant submits that it was up to the Commission and to the other administrative decision-makers to raise this issue themselves. I disagree.

[41] The Commission did not include in the earnings subject to allocation the $2,000.00 amount received from the applicant’s former employer as compensation for his legal fees (second agreement of November 2016, at page 917 of the respondent’s record). The Commission could not have known that this amount did not cover the fees that were actually incurred. Although it is logical to think that the legal fees incurred to obtain the income replacement benefits constituted expenses for the purposes of earning this income, this is not the case with regard to compensation for the time that the claimant himself invested. It appears from the notice of application for judicial review that the applicant was well aware of the existence of the Digest of Benefit Entitlement Principles (see page 8 of the notice of application). This digest, which is published by the government and available online, deals with eligible expense deductions, including certain legal fees, in the calculation of earnings. It was the applicant who had to provide evidence that he was entitled to a deduction.

[42] Given the standard of review that applies to the interpretation of subsection 35(10), this Court must refrain from giving its own interpretation because the administrative decision-makers to whom Parliament gave this mandate did not have the opportunity to consider this provision.

Issue 2: The Tribunal’s jurisdiction with respect to the Commission officers’ conduct

[43] The General Division stated that the difficulties created by the clerical errors and the complex tables provided to the applicant may have had an impact on his understanding of the amounts involved and may have been a source of frustration for him. However, it stated that it was unable to rectify this situation or address the appellant’s dissatisfaction with the overall quality of the service received from the Commission officers. It also pointed out that the Commission does not seem to have questioned the applicant’s good faith because it did not assess a penalty.

[44] The Appeal Division confirmed that the General Division did not have the jurisdiction to address the many allegations against the Commission about the way its officers treated the applicant (as a fraudster, according to him).

[45] The applicant wanted these divisions to intervene in order to penalize the Commission officers for the way that they treated him. He noted the Commission officers’ lack of reasonable effort to answer his questions, the calculation errors which created unnecessary confusion, the fact that they did not seek to apply the provisions of subsection 35(10) of the Regulations and that they treated him like a fraudster despite his good faith, his constant cooperation and the fact that he was a vulnerable person.

[46] As mentioned from the outset, the Appeal Division’s jurisdiction is limited to what is provided for in subsection 58(1) of the DESDA; neither the Appeal Division nor the General Division has the jurisdiction to penalize Commission officers for inappropriate conduct. Nor do these decision-makers have the jurisdiction to award damages or to write off amounts for punitive purposes, as I will explain in my analysis of issue 7.

[47] The Appeal Division therefore committed no reviewable error and, similarly, this Court does not have the jurisdiction in the context of an application for judicial review of an Appeal Division decision to assess the penalties requested.

[48] The lack of accountability alleged by the applicant is a matter that he can bring to the attention of governmental or political authorities who have the power to make changes in the public service.

[49] However, it should be noted that the tools made available to citizens, such as the Digest, would benefit from being updated and from including more details on situations like that of the applicant.

[50] In addition, even if claimants’ arguments are not always clear, the Commission’s representatives should make more of an effort than they did in the present matter to facilitate understanding of the case. As I state in dealing with issue 4, and despite the Appeal Division’s clear recommendation (see para. 56 below), neither the Commission nor its counsel made reasonable efforts before February 2, 2022 to clarify how an amount of $1,103.60 was charged. This is certainly not acceptable. I also note in passing that the Commission and its representatives continue to rely on case law without really ensuring that it is relevant, probably because the Digest is not always up to date. For example, the Commission, in its very brief written submissions before the Appeal Division, relied on a decision described as emanating from [translation] “the Federal Court of Appeal decision in Claveau v. Canada (AG), #T‑1268-07, in support of its position that there is no time limit pursuant to section 45, in contrast with section 52 of the Act” (see respondent’s record at page 787). However, the Appeal Division had already made it clear in 2015 (M.L. v. Canada Employment Insurance Commission, 2015 SSTAD 587 at paras. 20–21) that this decision (which was actually rendered by the Federal Court, 2008 FC 672) did not deal with this issue and that it was this Court’s decision in Chartier that was relevant.

Issue 3: The allocation of earnings / calculation errors

[51] The General Division reviewed the allocation and the calculations made by the Commission. In response to the arguments presented by the applicant, the General Division indicated that it reviewed the allocation of the amounts at issue for each of the benefit periods concerned. The General Division stated that it would not mention certain points that the appellant had raised or certain clerical errors that it noted that had no bearing on the issue before it.

[52] For the periods beginning May 19, 2013 and April 5, 2015, the General Division did not identify any errors in the allocation of the amounts received that could have an impact on the overpayment owed by the appellant. With respect to the periods beginning on June 25, 2014 and May 22, 2016, the General Division noted several errors that it characterized as clerical errors because the amounts that appeared to have been entered in the wrong places, or incorrectly added to the table, had no bearing on the calculations redone by the General Division regarding the total amount of the overpayment for each of these benefit periods (Reasons at paras. 40–41, 43).

[53] The General Division then turned to the issue raised by the appellant of the rounding of the amounts received from the CNESST. It stated that subsection 36(20) of the Regulations provides that a fraction of a dollar that is equal to or greater than one half shall be taken as a dollar and a fraction that is less than one half shall be disregarded. It found that there was therefore no reviewable error in this respect.

[54] In its decision, the Appeal Division recalled how the calculations are performed, and it noted that with regard to sickness benefits (period 1), 100% of the amounts received must be deducted. I understand here that because the benefits paid by the CNESST in this case exceed the amount of the benefits received by the applicant, the overpayment does not need to be calculated and all the benefits received from the Commission must be repaid.

[55] After having redone the calculations, the Appeal Division confirmed that it could find no error that would have the effect of changing the amount established from the overpayment for each period.

[56] Regarding the $4,188.60 amount that the applicant repaid to the CRA in May 2016, the Appeal Division asked the Commission to explain why only $3,085.00 was deducted from the required overpayment (i.e. the amount that the Commission stated that it had received from the CRA). The Appeal Division recommended that the applicant be provided with a clear and detailed statement of account within 30 days of its decision.

[57] The applicant argues that he still cannot understand some of the calculations. It seems that he still does not understand why the calculations for period 1 are not similar to those in the tables that apply to the other periods. He would like more explanations regarding the waiting period weeks, for which no overpayment has been claimed because the Commission did not pay him any benefits. He also does not understand how it is possible that the errors described in paragraphs 40, 41 and 43 of the General Division’s reasons did not affect the total overpayment for the periods at issue.

[58] However, he did not provide any details in his memorandum enabling this Court to determine that the Appeal Division committed a reviewable error in finding, on the basis of the tables that were corrected following the General Division’s comments, that the total of the overpayment for each period was indeed not wrong.

[59] Even though the applicant is self-represented, he bears the burden of convincing this Court that the Appeal Division made a reviewable error. He failed to do so.

[60] As for the calculations for period 1, as I have already stated at paragraph 54 above, it appears both from the Commission’s decision which deals with this period and from paragraph 27 of the Appeal Division’s reasons that 100% of the sickness benefits (the only ones paid during this period) must be repaid because the income replacement indemnities received exceed the amount of benefits received. As a result, no calculations are required. With respect, I fail to see how this situation was complicated. The amounts allocated during the waiting period weeks cannot have an impact on the amounts claimed for this period because no benefits were paid or payable.

[61] With regard to the impact of the benefits received from the CNESST and allocated during other periods that include waiting period weeks, the rules that the Commission followed were explained in its decisions following the request for reconsideration (pages 453 and 472 of the respondent’s record and para. 44 of the General Division’s decision). The applicant did not raise any errors in this respect, and it is not the role of this Court to redo the Commission’s calculations.

[62] Finally, the applicant suggests that periods 1 and 2 should be treated as one and the same period. As I mentioned, each period was the subject of a separate request for reconsideration before the Commission and a separate appeal before the Tribunal even though the cases with respect to these periods were heard together. I therefore cannot consider such an argument at this stage, the ultimate purpose of which is simply to allow the applicant to argue that section 52, which prohibits any reconsideration of a claim for benefits beyond a 36-month period, also applies to period 2.

[63] I find on this issue that the applicant has not established that the Appeal Division made an error that would warrant this Court’s intervention. However, as I mentioned above, I will deal with the issue of the repayment made to the CRA under issue 4.

Issue 4: Did the Tribunal err by ignoring the partial repayment of the overpayment through a tax adjustment for the May to December 2016 period?

[64] The General Division did not address this issue, which it considered to be outside its jurisdiction (see paragraphs 14 and 15 above). The Appeal Division confirmed that it did not have jurisdiction in the matter but recommended that a detailed explanation be provided to the applicant. I understand from this that it could not shed light on this issue based on the documents before it.

[65] The Commission argued before the Appeal Division that section 145, which is in Part VII of the Act, did not apply because the applicant was not working (despite the notice of assessment in the record). According to the Commission, any issue relating to the repayment that the applicant made to the CRA was therefore not within the Tribunal’s jurisdiction, and the claimant had to contact the CRA to understand why only $3,085.00 had been deducted instead of $4,188.60 as the overpayment claimed for that period. The Appeal Division found that even though it did not have the jurisdiction to decide this issue, it was still important that the Commission provide a detailed explanation to the claimant in this respect.

[66] Unfortunately, it appears that the Commission chose to laconically reiterate the information already provided to the applicant; this information did not in any way explain what became of the $1,103.60 amount collected by the CRA. Furthermore, these explanations still contained the errors noted by the General Division for the weeks of June 5 and June 12, 2016.

[67] Although the CRA’s exercise of its power pursuant to section 145 of the Act is subject to the exclusive jurisdiction of the Tax Court of Canada, Parliament has clearly chosen to avoid claimants having to request a repayment from the CRA when section 45 applies.

[68] Indeed, pursuant to section 45 of the Act, only overpayments of benefits as defined in the Act must be repaid. In section 2, this expression does not include amounts collected by the CRA pursuant to section 145 of the Act (Part VII). In this respect, the Tribunal therefore had the jurisdiction to ensure that the Commission required only the amount of the overpayment of benefits, as defined in the Act. The Commission had to deduct the amounts collected pursuant to section 145 in order to calculate the amount of the debt pursuant to section 45.

[69] The Commission’s position on the non-application of section 145 was not corrected or explained before this Court at the hearing. It was only after the issuance of a Court direction aimed at clarifying under which other power the CRA could claim a repayment even before a notice of debt was sent that the Commission and its counsel really looked into the matter and at last attempted to sort out what happened to the $1,103.60 amount.

[70] I note here that the lack of effort to clear up this issue had other impacts, as it seems that it is because of erroneous information received from a Commission officer that the applicant began to suspect that the Commission had imposed a penalty or interest on him pursuant to section 56.1 of the Regulations. This led him to argue that the General Division had refused to exercise its jurisdiction in respect of this [translation] “error”, and to ask this Court to interpret this provision.

[71] After having reviewed the record, and given that this Court’s role is not to speculate or to provide a statutory interpretation in the absence of specific facts warranting it, I did not intend to deal with section 56.1. The fact remains that the Commission’s lack of transparency caused delays and wasted time for both the applicant and the Court.

[72] That said, I now understand from the respondent’s additional submissions in his February 2, 2022 letter that it was indeed pursuant to section 145 that the CRA collected the amount of $4,188.60 from the applicant, based on a T4E issued by the Commission for the 2016 taxation year. There is no indication that an amended T4E was subsequently issued. When the CRA received the repayment, the Commission had not yet calculated the impact of the CNESST benefits paid in 2017 for the weeks of benefits paid during the 2016 taxation year. In the absence of further explanations and evidence, the amount collected by the CRA had to be deducted.

[73] The respondent now explains that after the June 2016 allocation, the applicant remained eligible for $3,678.00 of Employment Insurance benefits in 2016 (this amount does not appear in the tables produced before the Appeal Division). He adds that the CRA was therefore entitled to collect 30% of this amount—namely, $1,103.40—pursuant to section 145. According to the respondent, this amount therefore did not have to be deducted in order to establish the overpayment of benefits for this period.

[74] Just as the applicant cannot ask this Court to rewrite history in these cases, the respondent cannot now attempt to justify a position that he never put forward up until now, especially when he himself has confirmed that the supporting document was not before the Tribunal. As I stated, the General Division and the Appeal Division had the jurisdiction to ensure that the calculation of the amount of the overpayment of benefits set out in section 45 was made according to the rules. The issue was not whether the CRA had properly exercised its power, nor was the issue simply to deduct what the Commission had received from the CRA in June 2017 (respondent’s record at page 319); rather, the issue was to deduct what was collected from the applicant pursuant to Part VII of the Act.

[75] Given the evidence in the record, which clearly indicated the amount collected pursuant to Part VII of the Act, I find that the Appeal Division’s decision on this issue is unreasonable. It had the jurisdiction to examine this issue.

[76] In view of the evidence and the lack of explanations from the Commission before the Appeal Division, the Appeal Division could only find that the full amount of $4,188.60 should be excluded from the calculation for period 4. In the very specific circumstances of this case, including the time elapsed and the fact that there are no other reviewable errors in these cases, the matter should not be remitted back to the Appeal Division; rather, it is appropriate to render the decision that the Appeal Division should have rendered on this issue (Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para. 142).

Issue 6: Application of sections 45 and 52, and alternatively of section 46.01 of the Act

[77] The General Division did not deal with the issues raised for the first time before the Appeal Division regarding the application of sections 52 and 46.01 of the Act. According to the applicant, it still should have done so.

[78] The Appeal Division discussed the application of these provisions at paragraphs 36 to 54 of its decision. The Appeal Division first noted that the application of section 52 is relevant only with respect to the repayment of sickness benefits paid during the first period (see table in para. 11 above). It pointed out that it is section 45 of the Act that requires a claimant to repay the overpayment of benefits that would not have been provided if the amounts received from the CNESST had been paid or if they were to be paid at the time that the Commission had provided the Employment Insurance benefits.

[79] The Appeal Division confirmed that this ground was not raised before the General Division but that in any event, it was of the opinion that the General Division had not erred in this respect because section 52 does not apply to recovering amounts due pursuant to section 45 of the Act. It mentioned that on November 2, 2016, the applicant and the CNESST had recognized that he had the right to retroactively receive compensation payments for the psychological harassment that he had experienced through his work. It found that the calculations of the amounts due pursuant to section 45 could be performed at any time. However, the Act (subsection 47(3)) sets out a 72-month limitation period for the recovery of such debts. According to the Appeal Division, this provision takes into account the long delays in court proceedings and out-of-court discussions. Moreover, it noted that “[d]espite a very able argument”, it was not convinced that it should not follow the Federal Court of Appeal’s teachings in Chartier v. Canada (Attorney General), 2010 FCA 150, [2011] 4 F.C.R. 327 (Chartier) (Reasons at para. 44, footnote 6).

[80] With respect to the alternative argument relating to the application of section 46.01, the Appeal Division noted that it was not able to benefit from an analysis by the General Division as to whether the Commission had in fact exercised its discretion. It further noted that the applicant had recognized that essential information was missing from the record to decide on the possible application of this section. I understand from the applicant that the information on the costs related to the recovery of the overpayment by the Commission was indeed not in the record (see section 46.01 in Appendix 1).

[81] The applicant placed considerable emphasis on the error that the Appeal Division allegedly made in applying section 45 of the Act and in refusing to apply the 36-month limitation period set out in section 52.

[82] He is asking this Court to clarify the interpretation to be given to sections 43, 44, 45, 46 and 52, and alternatively, to section 46.01. In this regard, he has provided this Court with what he states are all the decisions in which these sections have been cited for some reason. In other words, he would like this Court to [translation] “weed through” everything in order to provide him with a better understanding of the Act.

[83] The Appeal Division had to determine whether the General Division had erred in applying section 45, which alone seems to apply to eligible and non-excluded persons for the given periods regardless of the nature of the benefits paid (special or regular). In fact, the applicant did not take a formal position in this respect before the Appeal Division (see, for example, pages 991, 1012 and 1013 of the respondent’s record); rather, he left this determination to the discretion of the administrative decision-maker. He now argues before this Court that it is section 44 that the Appeal Division should have applied because the first period involved only sickness benefits (special benefits rather than regular benefits). Yet he did not claim that he was not eligible to receive the full amount of these sickness benefits at the time that they were paid to him.

[84] He also argues that the CNESST is not an employer and was not acting on behalf of his employer, that the amounts paid did not come from the property of his employer (the employer was not yet bankrupt) and that they were not damages for wrongful dismissal. According to him, therefore, none of the specific situations described in section 45 applies to his case.

[85] However, he is not disputing that it was indeed following a decision by the TAT confirming an agreement reached on November 2, 2016 and setting aside the CNESST’s February 18, 2014 decision denying his claim for benefits on account of an occupational disease pursuant to the Quebec Act respecting industrial accidents and occupational diseases that the CNESST paid him the income replacement benefits. The CNESST was an intervener in that decision because it was the CNESST’s decision that was the subject of the motion before the TAT.

[86] The purpose of section 45 and of the Act is discussed at paragraph 31 of this Court’s decision in Chartier, cited by the Appeal Division. I quote a relevant excerpt from that decision:

[31] Sections 45, 46 and 47 respect the goal and objectives of the Act: to offer material support to those affected by the loss of their employment. The Act provides for a contributory insurance plan. It does not seek to, allow, or encourage the receiving or withholding of overpayments of benefits. It must be kept in mind that workers and employers bear the cost of the employment insurance system. The program is neither intended to nor administered in such a manner as to enrich certain claimants to the detriment of other claimants and the workers and employers financing it. ...

[87] The situation before the Appeal Division and before this Court is analogous to the situation specifically provided for in section 45, and there is nothing in the context or purpose of that provision and of the Act in general that makes it possible to interpret the words “or for any other reason” and “or any other person” to exclude the current scenario.

[88] The applicant maintains that he did not enrich himself and that he continues to suffer a loss as a result of the occupational injury or disease that he experienced. He was never compensated for the full salary that he lost. As a result, there was no double indemnification.

[89] This is to misunderstand the Act, the purpose of which is not to provide compensation for the full salary that a claimant has lost. The Act and the Regulations set the parameters of the amounts insured under the Act. Beyond these amounts, it provides for the obligation to repay a certain percentage, which involves the complex calculations found in the tables applicable to periods 2 to 4. There is never any question of limiting the application of section 45 to cases where a claimant receives compensation for his or her full salary.

[90] Apart from a challenge to the constitutionality of the provisions before this Court, the Appeal Division and this Court are bound to apply these choices made by Parliament even though the applicant described them as unfair and discriminatory to people in his situation. As I have already stated, the earnings referred to in section 45 are defined in paragraph 35(2)(b) of the Regulations and include the entire income set out therein. Nothing in the wording of section 45 limits this definition. Indeed, the use of the word “including” confirms that the examples that follow, such as damages for wrongful dismissal, or proceeds realized from the property of a bankrupt, are not exhaustive.

[91] I therefore find that the Appeal Division’s decision to apply section 45 to the facts of this case is reasonable.

[92] With respect to the application of section 52, the applicant argues that the Appeal Division was wrong to apply this Court’s decision in Chartier. According to the applicant, this decision is wrong insofar as it establishes that section 52 does not apply to the repayment of an overpayment of benefits pursuant to section 45, or to the deductions to be made pursuant to section 46. He submits that although this Court dealt with Braga v. Canada (Attorney General), 2009 FCA 167, [2009] F.C.J. No. 628 in Chartier, it did not give sufficient consideration to this decision or to other decisions such as Blais v. Canada (Attorney General), 2011 FCA 320, [2011] F.C.J. No. 1628, and the decisions cited therein. According to him, the introduction of concepts such as “administrative provision” and “adjudicative function” in Chartier results in an asymmetrical treatment and creates restrictions that the Act does not provide for.

[93] It is not helpful to attempt to describe in greater detail the numerous arguments presented by the applicant in his memorandum (see paras. 81 to 136 and 138 of the memorandum of the applicant). The interpretation that he proposed is certainly plausible, but it is not the only possible interpretation, as evidenced by the interpretation adopted in Chartier, a decision rendered by a particularly experienced panel of this Court in Employment Insurance matters.

[94] This decision put an end to the confusion resulting from the different opinions adopted by various boards of referees. The interpretation adopted in Chartier has since been applied by administrative decision-makers. It has stabilized the state of the law and allowed for a consistent application of the Act in the thousands of cases that the Commission processes each year, which are not the subject of published case law.

[95] The respondent submits that none of the exceptional circumstances referred to in this Court’s judgment in Miller v. Canada (Attorney General), 2002 FCA 370, [2002] F.C.J. No. 1375 exist in this case and that setting aside the precedent established in Chartier would therefore not be justified. I agree in principle.

[96] However, what is important to note here is that Parliament is presumed to be aware of the case law and that it regularly intervenes by way of amendment when it considers that this case law does not reflect the policy that it wishes to maintain. This is a form of dialogue between the courts and Parliament.

[97] In this case, Parliament did not amend section 52 to underscore its intention to have it apply to the recovery of benefit overpayments provided for in section 45. On the contrary, in 2012, it enacted a new provision—section 46.01—that applies only to repayments pursuant to section 45 or to deductions pursuant to section 46 as per the provisions at issue in Chartier.

[98] In this section, Parliament specifies that no overpayment or deduction is payable if “more than 36 months have elapsed since the lay-off or separation from the employment in relation to which the earnings are paid or payable and, in the opinion of the Commission, the administrative costs of determining the repayment would likely equal or exceed the amount of the repayment.” I note here that this 36-month period is different from the period that is provided for in section 52, which deals with the 36 months after the benefits have been paid or would have been payable. The importance of the second condition is confirmed by the fact that Parliament took the trouble of suspending its application in 2021 until September 2022 because of the pandemic (Budget Implementation Act, 2021, No. 1, S.C. 2021, c. 23, subsections 317(1), 317(2), 339(1), 339(2)).

[99] The addition of section 46.01 confirms that the time limit in section 52 does not apply in the cases provided for in section 45 and that Parliament endorsed the interpretation adopted in Chartier.

[100] I find that the interpretation adopted by the Appeal Division was reasonable and did not require further development in the circumstances of this case. The Court fully understands that the Appeal Division based its interpretation on the interpretation set out in Chartier.

[101] I therefore turn to the applicant’s argument that the Appeal Division had to apply section 46.01, or at least interpret it, so as to enable him to decide whether he could mount a new defence on this basis.

[102] Like the Appeal Division, I confirm that the absence of evidence in the record did not make it possible to determine whether the second condition of section 46.01 was satisfied and that this issue was not submitted before the General Division (subsection 58(1) of the DESDA). In the absence of evidence and arguments, it could not have been an error of law on the part of the General Division as the applicant claimed.

[103] Especially since the applicant’s position before the Appeal Division was not clear. On the one hand, he states that the Appeal Division could have relied on the evidence presented in another case (G.K. v. Canada Employment Insurance Commission, 2017 SSTADEI 348) before the same member of the Appeal Division, in which the Commission had found that the average administrative cost was $329.00. On the other hand, he submits that pursuant to section 46.01, the Commission’s legal fees to defend its position on appeal must be added to this and that the language of section 46.01, and particularly the word “determining”, had to be interpreted.

[104] The applicant acknowledges that there is very little case law on the interpretation and application of section 46.01. He is asking this Court to make up for this shortcoming, which, again, is not this Court’s role, as frustrating as it may be for the applicant.

[105] I can therefore only find that the Appeal Division’s decision, namely, that it did not have to rule on this issue in this case, is reasonable.

[106] Nevertheless, I would mention that the Tribunal and the Commission would do well to examine this issue more closely in the future. It is far from obvious, in view of the legislative evolution of section 46.01, that Parliament wanted to limit its application solely to cases where the repayment is less than $329.00. If the intention was to set a general cap regardless of the particular circumstances of a case, it was easy to do so by doing as it did in paragraph 56(1)(a) of the Regulations.

Issue 7: Write-off (subsection 56(1) of the Regulations)

[107] With respect to this final issue, the Appeal Division pointed out that it had found on several occasions that it did not have the jurisdiction to deal with such issues.

[108] The applicant never asked the Commission to use its power under subsection 56(1) of the Regulations to write off all or part of the overpayment described in the notices of debt.

[109] Before the Appeal Division, he argued that the General Division had erred in not writing off his debt. The Appeal Division correctly confirmed that only the Commission has the power to write off in accordance with subsection 56(1) of the Regulations. Furthermore, such decisions of the Commission are not subject to review. Section 112.1 is perfectly clear in this respect. Only decisions made pursuant to section 112 can be appealed to the General Division.

[110] The adoption of section 112.1 in 2014 is, in my view, another example of the dialogue between the courts and Parliament to which I alluded in discussing Chartier. It appears that the concurring reasons of Justice Stratas in Steel v. Canada (Attorney General), 2011 FCA 153, [2011] F.C.J. No. 657 (QL) (Steel) had raised some doubts as to whether a claimant could make a request for a reconsideration of a decision rendered in accordance with subsection 56(1) of the Regulations and therefore make an appeal to the Tribunal pursuant to section 113 of the Act. Parliament saw fit to put an end to this uncertainty by enacting section 112.1.

[111] I am therefore satisfied that the Appeal Division’s finding in this respect is reasonable.

IV. Conclusion

[112] I conclude from the foregoing that the Appeal Division’s decision is reasonable, except with respect to the issue of the amount of the benefits overpayment for period 4, from which the amount collected under Part VII in May 2017 should have been deducted in June 2017. I would therefore dismiss the application for review except with respect to this aspect and render the decision that should have been made in file AD-18-306 by ordering the deduction of an additional $1,103.60 amount from the $8,041.00 overpayment confirmed by the Commission in its September 1, 2017 decision.

[113] The applicant seeks costs like those awarded in Steel, where, in that case, the applicant was unsuccessful before this Court. I note that in that case, the applicant was represented by counsel, which generally entitled him to certain amounts set out in Tariff B of the Federal Courts Rules, SOR/98-106, and that the parties had agreed to an amount of $5,000.00 if his application for review was allowed. The Court seldom awards costs to self-represented litigants other than to reimburse the amounts actually paid in connection with the application for review. However, as I mentioned, in this case, the conduct of the Commission and its counsel created confusion, wasted time, and caused delays. I would therefore award costs in the amount of $1,000.00 to the applicant.

“Johanne Gauthier”

“I agree.

Yves de Montigny, J.A.”

“I agree.

René LeBlanc, J.A.”

APPENDIX

Department of Employment and Social Development Act

S.C. 2005, c. 34

Employment Insurance Regulations (SOR/96-332)

Employment Insurance Act, S.C. 1996, c. 23

Budget Implementation Act, 2021, No. 1

S.C. 2021, c. 23

 

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

Docket:

A-320-19

APPEAL FROM A DECISION OF PIERRE LAFONTAINE, SSTC, DATED JULY 3, 2019, DOCKET NUMBERS AD-18-302, AD-18-303, AD-18-304 AND AD-18-306.

STYLE OF CAUSE:		MICHEL FAULLEM v. THE ATTORNEY GENERAL OF CANADA
PLACE OF HEARING:	Ottawa, Ontario
DATE OF HEARING:	December 2, 2021
REASONS FOR JUDGMENT BY:	GAUTHIER J.A.
CONCURRED IN BY:	DE MONTIGNY J.A. LEBLANC J.A.
DATED:	FEBRUARY 15, 2022

APPEARANCES:

Michel Faullem	For the applicant REPRESENTING HIMSELF
Attila Hadjirezaie	For the respondent

SOLICITORS OF RECORD:

A. François Daigle Deputy Attorney General of Canada

For the respondent