BETWEEN:
and
Hearing held at Montréal, Quebec, on December 15, 2005.
Judgment delivered at Ottawa, Ontario, on December 21, 2005.
REASONS FOR JUDGMENT: LÉTOURNEAU J.A.
CONCURRED IN BY: NADON J.A.
PELLETIER J.A.
Date: 20051221
Docket: A-191-05
Citation: 2005 FCA 440
CORAM: LÉTOURNEAU J.A.
NADON J.A.
PELLETIER J.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
and
MICHEL VILLENEUVE
Respondent
REASONS FOR JUDGMENT
[1] The Court has before it an application for judicial review against a decision by an umpire, allowing an appeal by the respondent against a decision by a board of referees dated September 9, 2004.
[2] In its decision dated September 9, 2004, the board of referees upheld the decision by the Canada Employment Insurance Commission (Commission) to review the respondent's salary for one week of earnings that he had forgotten to declare and, accordingly, to reduce the amount of benefits payable to him for that week. The adjustment therefore resulted in an overpayment by the Commission.
[3] The appeal before the umpire raised only one well-focused question: Did the Commission err in its decision to review the respondent's earnings and to adjust the amount of benefits? The umpire never answered it. Rather, he rescinded or wrote off the respondent's debt resulting from the overpayment that he had received. He determined that the respondent owed two amounts, in fact two overpayments, to the Commission. He then proceeded to impute the payment to one of the two debts, his choice being dictated by article 1572 of the Civil Code of Quebec as the debt that is most advantageous for the respondent to pay. The facts that gave rise to this decision by the umpire and the resulting application for judicial review are as follows.
THE FACTS
[4] The respondent requested and received employment insurance benefits after a loss of employment. His initial benefit period was established beginning on January 27, 2002.
[5] Following a reassessment of the respondent's hours and insurable earnings, the period of the commencement of benefits which had been set on January 27, 2002, was amended and moved up to February 2, 2002. This post-reassessment decision was made on March 26, 2002. At that time, the benefits had already been paid to the applicant, resulting in an overpayment of $413.
[6] On July 6, 2002, the respondent was informed of the post-reassessment decision and the overpayment claimed, which was recovered through deductions from his benefits payable over the months of January and February 2003. The debt resulting from that overpayment was therefore extinguished.
[7] The respondent, navigating the maze of employment insurance for the very first time, could not help but to be completely thrown off by the change of date for his initial benefit period (which had been moved forward by the Commission for the period that he had himself declared in his record of employment) and the claim for overpayment.
[8] In February 2003, the Commission realized that in April 2002, the respondent had worked for one week at Teleglobe Canada and was paid a salary in the amount of $863.02, which he failed to declare. On February 5, 2003, the Commission wrote the respondent to obtain explanations regarding this undeclared income. The respondent replied in writing on February 14, 2003, and confirmed the work performed as well as the earnings received. But he wrongly believed, in good faith, that he had reimbursed the amounts due to the Commission after those undeclared earnings, through the payments in January in February, which had just been made. This misconception is clearly evident in his letter dated February 14, 2003.
[9] There was certainly a misunderstanding on his part, since at that time the Commission had not yet determined the impact of those earnings on his benefits. The Commission was only at the verification stage regarding the existence of those earnings that the respondent had received.
[10] Also, once the fact was confirmed, in accordance with the Employment Insurance Act, S.C. 1996, c. 23 (Act), the Commission proceeded to allocate the amount of $863.02 earned during the week of April 21, 2002. On April 22, 2003, it made its decision on the allocation of that amount. It adjusted the respondent's salary for the week of April 21, 2002. On April 26, 2003, it informed the respondent that as a result of this adjustment, an amount of benefits had been overpaid to him: see applicant's record, pages 11 and 31. It was a second overpayment, which by pure coincidence was for the identical amount as the first overpayment already repaid, namely $413. There is no doubt that a large part of the confusion that we observe on the part of the respondent, the board of referees and the umpire is the result of this coincidence regarding the amounts. Nevertheless, particularly for the players in the system who are familiar with it, the Commission's explanations in the record are clear enough to dissipate this confusion as long as we take a little time to look them over.
ANALYSIS OF THE FACTS AND OF THE DECISION BY THE UMPIRE
[11] This summary of the situation leads to five determinations, factual and legal, as obvious as they are inevitable. First, the respondent could not have repaid an overpayment in January and February 2003 when it did not exist until the Commission's decision on April 22, 2003, and when it was not claimed from the respondent before the notice of debt, which was sent to him on April 26, 2003.
[12] Second, the repayments in January and February 2003, made with the amounts recovered, were undoubtedly used to repay the first overpayment resulting from the benefit period report for January 28, 2002 to February 2, 2002.
[13] Third, when the respondent's appeal was before the umpire, there was only one debt, namely the debt resulting from the decision of April 22, 2003, following the allocation of the amount earned in the week of April 21, 2002, which was not declared.
[14] Fourth, the umpire cannot, as he did, using the amounts recovered in January and February 2003, proceed to impute a payment for a debt (the debt created by the decision of April 22, 2003) when the debt did not exist at the time those recovered amounts were used to repay the overpayment.
[15] Fifth, neither the respondent nor the umpire may proceed to impute a payment between two debts when only one exists.
[16] Finally, it is not necessary to elaborate on the issue at length, but forgiving, writing off or extinguishing a debt are not powers within the jurisdiction of an umpire sitting on a claimant's appeal against a decision by a board of referees upholding the Commission's allocation of the earnings: see Attorney General of Canada v. Filiatrault, A-874-97, September 18, 1998 (F.C.A.); Buffone v. Minister of Human Resources Development (Canada), A-666-99, 12 January 2001; Attorney General of Canada v. Mosher, 2002 FCA 355; Attorney General of Canada v. Idemudia, A-9-98, 11 February 1999.
[17] It is disconcerting to see significant sums of money literally wasted to recover an overpayment of $413 when the claimant's error was obvious and could easily have been ascertained and corrected at the appeal before the board of referees. Two hearings by the board of referees were necessary before it was understood what was going on and the confusion dissipated.
[18] Despite everything, an order by the chief umpire's designate, dated December 23, 2004 - i.e. after the decision by the board of referees dated September 9, 2004 - criticized the respondent for completely lacking a valid explanation when there were clear explanations appearing in the record, in the argument of June 19, 2003 (Exhibit No. 13) and in the argument of March 17, 2004 (exhibit 24.3) submitted to the board of referees. The order joined the respondent's two files so that the umpire [TRANSLATION] "could finally enlighten the situation for the claimant's benefit".
[19] Unfortunately, that was not the case. The umpire sitting on the appeal stirred up the confusion that had finally been dissipated by the board of referees. He resolved a problem that did not exist by appropriating a power that he did not have, which only added to the respondent's confusion. Faced with those facts, the Commission had no choice but to appeal in order to sanction the lack of jurisdiction. It did so while waiving costs against the respondent.
[20] At the hearing, the members of the panel took the time to explain to the respondent, in ample detail, the whys and wherefores of the two overpayments and of the board of referees' decision of September 9, 2004. Hopefully the respondent, who represented himself, who invested considerable time and effort into resolving this matter and who felt short-changed by the system, will finally be able to find the serenity that he has not had for a long time. It goes without saying that the Commission's write-off of the minimal amount owing would greatly assist in restoring that serenity.
CONCLUSION
[21] For these reasons, the application for judicial review shall be allowed without costs, the applicant having waived them. The Umpire's decision shall be set aside and the matter referred to the chief umpire or to the umpire he designates for redetermination on the basis that the respondent's appeal from the decision by the board of referees dated September 9, 2004, upholding the Commission's decision regarding the allocation of the earnings received by the respondent, must be dismissed.
"I concur.
Marc Nadon J.A."
"I concur.
J.D. Denis Pelletier J.A."
Certified true translation
Kelley A. Harvey, BCL, LLB
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A-191-05
STYLE OF CAUSE: ATTORNEY GENERAL OF CANADA
v. MICHEL VILLENEUVE
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: December 15, 2005
REASONS FOR JUDGMENT: LÉTOURNEAU J.A.
PELLETIER J.A.
DATE OF REASONS: December 21, 2005
APPEARANCES:
| FOR THE APPLICANT
|
|
| FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
|
Deputy Attorney General of Canada Montréal, Quebec |
FOR THE APPLICANT
|
Date: 20051221
Docket: A-191-05
Ottawa, Ontario, December 21, 2005
CORAM: LÉTOURNEAU J.A.
NADON J.A.
PELLETIER J.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
and
MICHEL VILLENEUVE
Respondent
JUDGMENT
The application for judicial review is allowed without costs. The Umpire's decision is set aside and the matter referred to the chief umpire or to the umpire he designates for redetermination on the basis that the respondent's appeal from the decision by the board of referees dated September 9, 2004, upholding the Commission's decision regarding the allocation of the earnings received by the respondent, must be dismissed.
"Gilles Létourneau"
J.A.
Certified true translation
Kelley A. Harvey, BCL, LLB