Date: 19980922
Docket: A-743-97
CORAM: MARCEAU J.A.
LÉTOURNEAU J.A.
ROBERTSON J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
- and -
CAROLE ANTONIO
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Vancouver, British Columbia,
on Tuesday, September 22, 1998)
MARCEAU J.A.
[1] We are all of the view that this application for judicial review of a decision of an umpire acting pursuant to the Unemployment Insurance Act is well founded.
[2] It is an established principle that a Board of Referees, and even more so an umpire, may not intervene and substitute their appreciation as to the amount to be assessed to a penalty imposed on a claimant for a false statement pursuant to subsection 33(1) of the Act, unless it is clear to them that the Commission has exercised its discretion "unjudicially," that is to say on the basis of an improper motive or without taking proper account of a relevant consideration.
[3] There is no doubt here, in our judgment, that nothing in the evidence could lead to the conclusion that there had been an unjudicial exercise of discretion on the part of the Commission so that the Board of Referees would have had no choice but to intervene. We think, with respect, that the umpire had no valid legal reason to disagree with the Board. We see no error of law in the approach taken by the Board as to the burden of proof. The false statements were so obvious and the circumstances, especially "the fact that the claimant has been on claim several times before" and that the "cards are straight forward," were such that the Board was right in saying that it was for the claimant then to offer an explanation that would rebut the inference that the false statements were knowingly made (see on this point Attorney General of Canada v. Gates , [1995] 3 F.C. 17). In that respect, it certainly cannot be said that the Board"s assessment of the lack of credibility of the respondent"s explanation was unreasonable and, that being so, the assessment is irreversible.
[4] We understand the reaction of the umpire, moved by the empathy that the case rises, but unfortunately, as a Court of review, we are unable to give it our support. Neither an umpire nor this Court was given by Parliament the discretion to decide on such considerations.
[5] The application will be allowed, the impugned decision set aside and the matter sent back for reconsideration on the basis that the appeal taken against the Board of Referees" decision is unfounded.
"Louis Marceau"
J.A.
Date: 19980922
Docket: A-743-97
CORAM: MARCEAU J.A.
LÉTOURNEAU J.A.
ROBERTSON J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
- and -
CAROLE ANTONIO
Respondent
Heard at Vancouver, British Columbia, on Tuesday, September 22, 1998.
Judgment rendered from the Bench on Tuesday, September 22, 1998.
REASONS FOR JUDGMENT OF THE COURT BY: MARCEAU J.A.
IN THE FEDERAL COURT OF APPEAL
Date: 19980922
Docket: A-743-97
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
- and -
CAROLE ANTONIO
Respondent
REASONS FOR JUDGMENT
OF THE COURT