Federal Court Decision #A-27-94 - PAUL, ZYSMAN v. COMMISSION

JUDGMENT OF THE FEDERAL COURT OF APPEAL

Date:
September 12, 1994

Docket:
A-27-94

Umpire's Decision:
CUB 23694

CORAM:

MARCEAU J.A.
STONE J.A.
McDONALD J.A.

BETWEEN:

PAUL ZYSMAN,

applicant,

- and -

CANADA EMPLOYMENT AND
IMMIGRATION COMMISSION,

respondent.

Heard at Vancouver, British Columbia, on Monday, September 12, 1994.

REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Vancouver, British Columbia,
on Monday, September 12, 1994)

MARCEAU, J.A.:

This is an application for judicial review of a decision of the umpire which upheld a decision of the Commission to impose a penalty on the applicant pursuant to subsection 33(1) of the Unemployment Insurance Act. Specifically, the Commission determined that the applicant had made false or misleading statements on his report cards when he claimed that he was not working while establishing his business. The applicant contends that neither the umpire nor the Board of Referees applied the correct test or even addressed the correct issue. In particular, the applicant argues that both the Board and the umpire failed to give proper consideration to the requirement in Subsection 33(1) of the Act that the false statement must have been made "knowingly" in order to give rise to a penalty. It is also contended that, to conclude as he did that the applicant knew he was working, the umpire had to contradict, with no justification whatsoever, a clear finding of fact of the Board which had accepted as credible the testimony of the applicant. After some analysis, we have come to the conclusion that these contentions are unfounded in that they rest solely on some ambiguous statements made by the Board and the umpire in their reasons for decision.

It is clear that the Board was fully mindful of the requirements of section 33 as regards the state of mind of the claimant in completing his report cards. The Board took care to stress the point unequivocally in its short reasons. As for the umpire, although he did not expressly indicate that he was looking for evidence of an intention, on reading his reasons as a whole it becomes clear that at no time did he forget that a subjective knowledge of the falsehood on the part of the speaker was crucial. There is a statement in his reasons that "the test is not a subjective one", however this statement was made in reference to the accepted meaning of the word "working" as is clear from the context of the passage in which it appears:

"I cannot accept claimant's counsel's arguments that since he did not really consider he was working, he would not have knowingly made false misrepresentations. The test is not a subjective one and he clearly was working and knew he was doing so even though possibly short hours and without any immediate remuneration."

We do not accept the applicant's contention that the umpire contradicted the Board's finding of credibility. The Board did not expressly state that it accepted the applicant's credibility. On the contrary, we think that the Board simply reiterated the applicant's testimony without accepting it, since when it came to dealing with the issue of penalty, it simply acknowledged the requirement of intention, reviewed certain facts and concluded that there had been misleading statements triggering the application of Section 33.

It is clear to us that the Board, as well as the umpire, were quite aware of the necessity of knowledge. Their reasons indicate that they simply inferred from the facts that the applicant could not honestly believe that he was not working all those weeks while he was busy setting up his business. And there lies the only issue raised by this application: was this inference, that the applicant knew that his answers to the questions were misleading, legally warranted? Considering that we are here concerned not with the application of Section 43 of the Unemployment Insurance Regulations but with the meaning of a most common English word, "working"; that the applicant is an English language instructor; that a mere balance of credibility was required to support a conclusion, we have no doubt that the inference was justified.

The application will therefore be dismissed.

"Louis Marceau"

J.A.