A-930-96
MONTRÉAL, QUEBEC, THE 31st DAY OF OCTOBER 1997
CORAM: THE HONOURABLE MR. JUSTICE DENAULT
THE HONOURABLE MR. JUSTICE DÉCARY
THE HONOURABLE MR. JUSTICE LÉTOURNEAU
BETWEEN:
ATTORNEY GENERAL OF CANADA,
Applicant,
AND:
ISABELLE ROULEAU,
Respondent.
J U D G M E N T
The application for judicial review is allowed. The Umpire's decision is set aside and the matter is referred back to the chief umpire or an umpire designated by him for redetermination on the basis that the decision of the board of referees is well founded.
| Pierre Denault |
| J.A. |
Certified true translation
Stephen Balogh
A-932-96
MONTRÉAL, QUEBEC, THE 31st DAY OF OCTOBER 1997
CORAM: THE HONOURABLE MR. JUSTICE DENAULT
THE HONOURABLE MR. JUSTICE DÉCARY
THE HONOURABLE MR. JUSTICE LÉTOURNEAU
BETWEEN:
ISABELLE ROULEAU,
Applicant,
AND:
CANADA EMPLOYMENT AND INSURANCE COMMISSION,
Respondent,
AND:
DEPUTY ATTORNEY GENERAL OF CANADA,
Mis-en-cause.
J U D G M E N T
The application for judicial review is dismissed.
| Pierre Denault |
| J.A. |
Certified true translation
Stephen Balogh
Docket: A-930-96
CORAM: DENAULT J.A.
DÉCARY J.A.
LÉTOURNEAU J.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA,
Applicant,
AND:
ISABELLE ROULEAU,
Respondent.
Docket: A-932-96
BETWEEN:
ISABELLE ROULEAU,
Applicant,
AND:
CANADA EMPLOYMENT AND INSURANCE COMMISSION,
Respondent,
AND:
DEPUTY ATTORNEY GENERAL OF CANADA,
Mis-en-cause.
Hearing held at Montréal on Wednesday, October 29, 1997
Judgment delivered at Montréal on Friday, October 31, 1997
REASONS FOR JUDGMENT OF THE COURT BY: DÉCARY J.A.
Docket: A-930-96
CORAM: DENAULT J.A.
DÉCARY J.A.
LÉTOURNEAU J.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA,
Applicant,
AND:
ISABELLE ROULEAU,
Respondent.
Docket: A-932-96
BETWEEN:
ISABELLE ROULEAU,
Applicant,
AND:
CANADA EMPLOYMENT AND INSURANCE COMMISSION,
Respondent,
AND:
DEPUTY ATTORNEY GENERAL OF CANADA,
Mis-en-cause.
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the bench at Montréal
on Friday, October 31, 1997)
DÉCARY J.A.
[1] The decision rendered by the Umpire in CUB 35509 has resulted in two applications for judicial review.
[2] The first application, made by the Commission in docket A-930-96, challenges the Umpire's conclusion that the notification of the overpayment decision was null and void because the Commission had not met the requirement of "service" of the amount of the overpayment under subsection 43(1) of the Unemployment Insurance Act (the Act), which reads as follows:
| 43.(1) Notwithstanding section 86 but subject to subsection (6), the Commission may at any time within thirty-six months after benefit has peen paid or would have been payable reconsider any claim made in respect thereof and if the Commission decides that a person has received money by way of benefit thereunder for which he was not qualified or to which he was not entitled or has not received money for which he was qualified and to which he was entitled, the Commission shall calculate the amount that was so received or payable, as the case may be, and notify the claimant of its decision. |
[3] The gist of the second application, made by the claimant in docket A-932-96, is that the Umpire erred in assessing whether the claimant was unemployed in light of section 43 of the Unemployment Insurance Regulations (the Regulations). Subsections 43(1) and (2) of the Regulations read as follows:
| 43. (1) Subject to subsections (2) and (3), where a claimant is |
| (a) self-employed or engaged in the operation of a business on his own account or in partnership or a co-adventure, or |
| (b) employed in any employment other than that described in paragraph (a) in which he controls his working hours, |
he shall be regarded as working a full working week.
| (2) Where a claimant is employed as described in subsection (1) and the employment is so minor in extent that a person would not normally follow it as a principal means of livelihood, he shall, in respect of that employment, not be regarded as working a full working week. |
[4] These reasons will deal with both applications and will be filed in support of the decisions rendered with respect to both of them in dockets A-930-96 and A-932-96.
Docket A-930-96
[5] The application for judicial review identified as docket A-930-96 must be allowed. The Umpire did in fact err at the outset in requiring that the Commission "serve" the amount calculated on the claimant. Section 43 of the Act requires "notification", and this Court noted recently, in Brien and Rajotte,1 that such notification is subject to no specific formal requirements.
[6] The Umpire subsequently erred in finding that there had been no notification in the instant case. Let us look briefly at the facts. The Commission informed the claimant on September 20, 1993 that it had, since December 1, 1992, paid her benefit to which she was not entitled; it advised her at the same time that there was accordingly [translation] "an overpayment" and that she would be [translation] "informed of the amount owing". On October 7, 1993, the claimant, who appears at that time not to have known the amount of the overpayment, filed a notice of appeal with the board of referees against the "decision" of September 20, 1993. On October 13, 1993, an internal computer printout of the Commission indicated the overpayment amount; however, this printout apparently did not indicate that the claimant had been notified of this amount. On October 18, 1993, the Commission stated the overpayment amount in its written representations to the board of referees.
[7] Brien and Rajotte clearly established that there is but one "decision" within the meaning of section 43 of the Act, although that decision can be made in a number of stages. A "decision" is made only once each of these stages, including the calculation and notification to the claimant of the overpayment amount (notification of this amount obviously presupposes that the calculation has taken place), has been completed, and it is this "decision" alone that can be appealed under subsection 43(2). There is and can only be one appeal from this decision, and the 30-day appeal period provided for in subsection 79(1) of the Act begins running only once all the stages of the process set out in subsection 43(1) have been completed. Furthermore, it would be unacceptable to let an appeal period run against a claimant while a fact as basic as the amount at issue is unknown.
[8] Counsel for the claimant suggests that it is possible for two or more appeals to be filed as and when the various stages are completed and that a notice of appeal filed before all the stages are completed would enable the claimant to allege a fatal procedural error and bar the Commission from completing the process. It is our view that this suggestion is beyond all understanding.
[9] A notice of appeal filed, as in the instant case, before the process has been completed is premature, and nothing bars the Commission from completing the process. If necessary, it can complete the process, as the Court held in Gagnon (supra, note 1), by including a notification of the overpayment amount in its written representations to the board of referees. This is clearly not the most judicious way to proceed, but the Commission's delay in completing all the stages and the claimant's haste in filing a notice of appeal leave little other choice in the case at bar. Counsel for the claimant told us at the hearing that the Commission has yielded to the Court's exhortations in Brien and Rajotte and is now completing the process of calculation and notification of the overpayment amount in record time. It therefore appears that debates like that at issue in this application for judicial review are now a thing of the past, and so much the better.
[10] Thus, in the case at bar, the notice of appeal filed by the claimant on October 7, 1993 was premature; since the claimant had not yet been notified of the overpayment amount, there was not yet a "decision" within the meaning of section 43 of the Act that could be appealed. However, it would be unfair to criticize the claimant for incorrectly believing that there was a "decision"; the state of the authorities and the practice of the Commission and counsel did in fact suggest at that time that the letter of September 20, 1993 constituted the "decision" subject to appeal. It is accordingly our view that the notice of appeal should be deemed to have been filed on October 18, 1993, that is, at the time when the claimant was notified of the overpayment amount by means of the Commission's written representations.
[11] This change in the date of the notice of appeal is of no consequence in the case at bar, since the 36-month period within which a claim can be reconsidered under subsection 43(1) of the Act had not yet elapsed on October 18, 1993 with respect to the benefit at issue. It is clear that had benefit been paid to the claimant before October 18, 1990 (the commencement of the 36-month period provided for in the said subsection), the Commission could not have exercised its power of reconsideration with respect thereto under subsection 43(1).
[12] The Umpire accordingly erred in finding that the claimant had not been notified of the Commission's decision in timely fashion.
[13] Furthermore, the Umpire should not have allowed the argument that the claimant had not been notified of the calculated amount to be raised for the first time before her. The claimant should have raised this argument before the board of referees, which would have permitted the board of referees, if it considered it appropriate to do so, to authorize the Commission to explain itself on this point and to adduce any evidence of the notification in question.2 There is obviously little chance that such an argument will be raised from now on, since claimants should in future wait for all stages of the process to be completed before filing a notice of appeal.
Docket A-932-96
[14] The application for judicial review in docket A-932-96, on the other hand, must be dismissed, for the following reasons.
[15] Counsel for the claimant submits that it was not open to the Commission to exercise its power to amend under section 86 of the Act with regard to its decisions to pay benefit to his client, because the conditions for application of section 86 had not been met. However, the Commission's decision in the instant case was rendered not under section 86 of the Act, but under section 43, which authorizes it to reconsider claims for benefit retroactively.3
[16] Counsel also submits that when the Commission considers a claimant's entitlement to benefit, it must take the Minister of National Revenue's decision as to the claimant's insurability into account. This argument was conclusively disposed of by this Court's recent decision in Attorney General of Canada v. D'Astoli (A-999-96, October 24, 1997, F.C.A., unreported).
[17] Finally, counsel submits that the claimant's employment in her business was so minor in extent that she is covered by the presumption set out in subsection 43(2) of the Regulations. To accept this submission, the finding of fact made by the board of referees on this point would have to be called into question, which this Court would not be justified in doing in the case at bar.
[18] The application for judicial review will accordingly be dismissed in docket A-932-96. It will be allowed in docket A-930-96, and the Umpire's decision will accordingly be set aside and the matter referred back to the chief umpire or an umpire designated by him for redetermination on the basis that the decision of the board of referees was well founded.
| Robert Décary |
| J.A. |
Certified true translation
Stephen Balogh
FEDERAL COURT OF APPEAL
A-930-96
BETWEEN:
ATTORNEY GENERAL OF CANADA,
Applicant,
AND
ISABELLE ROULEAU,
Respondent.
A-932-96
BETWEEN:
ISABELLE ROULEAU,
Applicant,
AND
CANADA EMPLOYMENT AND INSURANCE COMMISSION,
Respondent,
AND
DEPUTY ATTORNEY GENERAL OF CANADA,
Mis-en-cause.
REASONS FOR JUDGMENT OF THE COURT
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: A-930-96
| STYLE OF CAUSE: ATTORNEY GENERAL OF CANADA, |
Applicant,
| AND: |
| ISABELLE ROULEAU, |
Respondent.
COURT FILE NO.: A-932-96
| STYLE OF CAUSE: ISABELLE ROULEAU, |
Applicant,
| AND: |
| CANADA EMPLOYMENT AND INSURANCE COMMISSION, |
Respondent,
| AND: |
| DEPUTY ATTORNEY GENERAL OF CANADA, |
Mis-en-cause.
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: October 29, 1997
- 2 -
REASONS FOR JUDGMENT OF THE COURT (THE HONOURABLE MR. JUSTICE DENAULT, MR. JUSTICE DÉCARY AND MR. JUSTICE LÉTOURNEAU)
DELIVERED FROM THE BENCH BY: The Honourable Mr. Justice Décary
Dated: October 31, 1997
APPEARANCES:
Carole Bureau
Paul Deschênes for the applicant
Jean-Guy Ouellet for the respondent
SOLICITORS OF RECORD:
George Thomson
Deputy Attorney General
of Canada
Ottawa, Ontario for the applicant
Campeau, Ouellet, Nadon,
Barabé & Associés
Montréal, Quebec for the respondent
__________________1 Brien v. C.E.I.C. (A-425-96, April 23, 1997, F.C.A., unreported); Rajotte v. C.E.I.C. (A-426-96, April 23, 1997, F.C.A., unreported); these two decisions were followed and applied by this Court in Attorney General of Canada v. Gagnon (A-676-96, May 28, 1997, F.C.A., unreported) and Attorney General of Canada v. Perrier (A-984-96, June 9, 1997, F.C.A., unreported).
2 Attorney General of Canada v. Girard (A-6-97, September 18, 1997, F.C.A., unreported); Attorney General of Canada v. D'Astoli (A-1000-96, October 24, 1997, F.C.A., unreported).
3 Brière v. Canada (Employment and Immigration Commission), [1989] 3 F.C. 88 (C.A.).