Date: 20021008
Neutral citation: 2002 FCA 372
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
LORNE BUORS
Respondent
Heard at Winnipeg, Manitoba, on October 7, 2002.
Judgment delivered at Winnipeg, Manitoba, on October 8, 2002
REASONS FOR JUDGMENT BY: NOËL J.A.
Date: 20021008
Neutral citation: 2002 FCA 372
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
LORNE BUORS
Respondent
REASONS FOR JUDGMENT
[1] This is a judicial review application from a decision of Judge Grant sitting as an Umpire under the Employment Insurance Act in which he held that Lorne Buors (the claimant) was entitled to retain benefits paid to him in error by the Commission.
[2] While enrolled in an employment benefits program, the claimant returned to his employment and failed to report the income derived from it. The Commission determined that an overpayment ensued and applied a penalty.
[3] Upon appeal, the Board of Referees maintained the decision of the Commission with respect to the overpayment but determined that the penalty was not justified in the circumstances.
[4] The claimant brought a further appeal to the Umpire who determined that the claimant was entitled to retain the overpayment on the basis that it arose by reason of inaccurate information provided by the Commission.
[5] In so holding, the Umpire relied on the dissenting opinion of Hugessen J.A. in Joseph Granger v. the Canada Employment Commission, [1986] 3. F.C. 70 who held that the Commission could not claim an overpayment in circumstances such as this. The view of the majority, later confirmed by the Supreme Court ([1989] 1 SCR 141), was that the Umpire was bound to apply the law as it read, and did not have jurisdiction to waive its application.
[6] Although the respondent maintained that he was engaged in a contract for services at the relevant time, it is clear to me that his undisclosed earnings were employment income, and that he is in receipt of an overpayment. For the reasons expressed by Pratte J.A. in Granger, it was not open to the Umpire to refrain from applying the Act and waive the payment of amounts properly owing thereunder.
[7] The application for judicial review will be allowed, the decision of the Umpire set aside and the matter referred back to the Chief Umpire or his designate for redetermination on the basis that the claimant's appeal from the decision of the Board of Referees be dismissed.
"Marc Noël"
J.A.
"I agree"
Marshall E. Rothstein
"I agree"
J. Edgar Sexton
FEDERAL COURT OF CANADA
APPEAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
DOCKET: A-294-01
STYLE OF CAUSE: The Attorney General of Canada v. Lorne Buors
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: October 7, 2002
REASONS FOR JUDGMENT OF
THE HONOURABLE MR. JUSTICE NOËL
DATED OCTOBER 8, 2002
APPEARANCES:
Mr. David I. Besler for the Applicant
Department of Justice
Edmonton Regional Office
211 - Bank of Montreal Building
10199 - 101 Street
Edmonton, AB T5J 3Y4
Mr. Lionel Chartrand for the Respondent
SOLICITORS OF RECORD:
Morris Rosenberg
Deputy Attorney General of Canada for the Applicant
Aboriginal Centre Law Office
409 - 181 Higgins Avenue
Winnipeg, MB, R3B 3G1 for the Respondent