Date: 20020130
Docket: A-773-00
Neutral citation: 2002 FCA 44
CORAM: STONE J.A.
DÉCARY J.A.
EVANS J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
THOMAS M. PETRYNA
Respondent
Heard at Ottawa, Ontario, on January 30, 2002.
Judgment delivered from the Bench at Ottawa, Ontario, on January 30, 2002.
REASONS FOR JUDGMENT OF THE COURT BY: EVANS J.A.
Date: 20020130
Docket: A-773-00
Neutral citation: 2002 FCA 44
CORAM: STONE J.A.
DÉCARY J.A.
EVANS J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
THOMAS M. PETRYNA
Respondent
REASONS FOR JUDGMENT
(Delivered from the Bench at Ottawa, Ontario
on January 30, 2002.)
[1] This is an application by the Employment Insurance Commission for judicial review of a decision of an Umpire dated October 20, 2000 (CUB 49609) dismissing an appeal from a decision of a Board of Referees holding that Thomas Petryna had worked sufficient hours to be eligible for employment insurance benefits.
[2] These proceedings arise from a decision by the Commission in August 1999 to refuse Mr. Petryna's claim for benefits on the ground that he had accumulated only 735 of the 744 hours of insurable employment that he had to work in order to be eligible for benefits. Mr. Petryna's problem was that, while receiving benefits in 1997 during a previous period of unemployment, he had failed to advise the Commission that he was out of the country for three weeks. When it discovered this, the Commission in May 1998 exercised its power under section 7.1 of the Employment Insurance Act, S.C. 1996, c. 23, to issue a notice of violation that increased from 595 to 744 the number of hours that Mr. Petryna would have to work in order to be eligible to claim benefits if he became unemployed again.
[3] Mr. Petryna appealed to a Board of Referees against the imposition of this penalty, but the appeal was adjourned pending the outcome of litigation in which it was alleged that the Commission had learned of recipients' absence from Canada as a result of a breach of their right to privacy, and hence could not impose any sanction on them for failing to disclose that they were not in Canada. In the event, this challenge failed: Smith v. Canada (Attorney General), reported as CUB 44824 (Umpire), aff'd. (2000), 252 N.R. 172 (F.C.A.), aff'd. 2001 SCC 88.
[4] The issue in the case at bar is whether, on an appeal against a refusal of benefits for insufficient hours, a Board of Referees or an Umpire can, in effect, suspend an extra hours penalty imposed by the Commission pending the determination of an appeal against the penalty itself. In view of the statutory silence on this issue, the Board resorted to the presumption of innocence in concluding that the Commission had erred when it refused Mr. Petryna's benefits because he had not worked for the number of hours stipulated in the Commission's penalty.
[5] On the appeal of this decision by the Commission, the Umpire pointed out that, when it believes that a claimant has made a declaration or claim that the person knows to be false or misleading because of the non-disclosure of facts, the Commission may either impose an administrative penalty, as happened in this case when the Commission invoked sections 7.1 and 38 of the Act, or proceed by way of a criminal prosecution under section 135 of the Act.
[6] If the Commission chooses criminal proceedings and the individual is convicted, subsection 683(5) of the Criminal Code empowers the appeal court to suspend any punishment that was imposed at first instance pending the determination of the appeal. However, the Umpire noted, despite the substantial size of the financial or extra hours penalties that the Commission may impose by administrative decision, the Employment Insurance Act confers no discretion analogous to that in the Criminal Code to enable a Board of Referees or an Umpire to suspend pending an appeal the operation of a penalty imposed by the Commission.
[7] The Umpire found that the Board had not erred in law when it read into the Act a discretion to suspend the penalty imposed on Mr. Petryna, in order to avoid the eventuality that
in a case like the one before me, the Commission could hold the claimant's appeal in abeyance for an indefinite period, at their total discretion, leaving the claimant basically without a remedy.
[8] In this application for judicial review, the Commission takes the position that neither the Board nor the Umpire has any discretion to suspend the operation of a penalty imposed by the Commission, and that as statutory decision-makers they may only exercise the powers that Parliament has conferred upon them. There is no express provision in the Employment Insurance Act authorizing the Board of Referees or the Umpire to suspend the operation of a penalty in the circumstances of this case and, since the legislation specifies that in certain circumstances a decision of the Commission may be stayed pending an appeal (see sections 121 of the Act, and 84 and 87 of the Employment Insurance Regulations, SOR/96-332), a general power to suspend or stay a penalty cannot be implied.
[9] In our opinion, the Commission is clearly correct. There is no general legal principle that an administrative tribunal to which a decision has been appealed may suspend that decision, or any related decision, pending the final disposition of any outstanding appeal. Accordingly, in the absence of any such legal principle against which to interpret the Employment Insurance Act and, in the presence of limited express statutory powers to suspend Commission decisions, the enabling provisions governing the Board of Referees and the Umpire should be interpreted in light of the principle that administrative tribunals have only such powers as the legislature has conferred upon them. The principle of criminal justice that a person is presumed innocent until proved guilty is not applicable when the Commission has exercised its power to impose an administrative penalty on a person whom it believes is in breach of a statutory duty.
[10] We would only add that it is, of course, incumbent on all adjudicative decision-makers take into account possible injustices when interpreting legislation. However, this is not a licence to interpret legislation to accord with the decision-maker's notion of justice without proper regard to other principles of statutory interpretation.
[11] Counsel for the Commission advised the Court that, if Mr. Petryna's appeal of the penalty were successful, and decided before September of this year, the Commission could make the necessary financial adjustments for the period of unemployment that is the subject of this application for judicial review. Accordingly, she submitted, if the Court allowed this application, it could remit the matter to the Chief Umpire for redetermination on a date subsequent to the final disposition of Mr. Petryna's appeal against the penalty imposed under section 7.1 for breach of paragraph 38(1)(a). This would enable the Commission to pay benefits to Mr. Petryna retroactively if his appeal against the penalty was not finally decided in his favour until after September 2002. We adopt this submission.
[12] For these reasons, the application will be allowed without costs, the Umpire's decision set aside and the matter remitted to the Chief Umpire or his designate for redetermination in accordance with these reasons at a date subsequent to the final disposition of Mr. Petryna's appeal against the penalty imposed on him under section 7.1 for breach of section 38 of the Employment Insurance Act.
"John M. Evans"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-773-00
STYLE OF CAUSE:
THE ATTORNEY GENERAL OF CANADA v. THOMAS M. PETRYNA
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: JANUARY 30, 2002
REASONS FOR JUDGMENT OF THE COURT: STONE J.A.,
DÉCARY J.A.,
EVANS J.A.
DELIVERED FROM THE BENCH: JANUARY 30, 2002
APPEARANCES:
Ms. Marie Crowley FOR THE APPLICANT
Mr. Thomas M. Petryna REPRESENTING HIMSELF
SOLICITORS OF RECORD:
Mr. Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE APPLICANT
Mr. Thomas M. Petryna
Cornwall, Ontario REPRESENTING HIMSELF