(Delivered from the Bench at Vancouver, B.C.
on Wednesday, February 9, 1994)
JUDGMENT OF THE FEDERAL COURT OF APPEAL
Date:
February 9, 1994
Docket:
A-330-93
Umpire's Decision:
CUB 22527
CORAM:
THE HONOURABLE MR. JUSTICE MacGUIGAN
THE HONOURABLE MR. JUSTICE DÉCARY
THE HONOURABLE MR. JUSTICE McDONALD
BETWEEN:
THE ATTORNEY GENERAL OF CANADA,
applicant,
- and -
STEPHEN SMITH,
respondent.
Heard at Vancouver, B.C. on Wednesday, February 9, 1994.
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Vancouver, B.C.
on Wednesday, February 9, 1994)
DÉCARY, J.A.:
On March 14, 1990 the respondent files an application for Unemployment Insurance benefits and a benefit period was established for him with a weekly rate of benefit of $312.00.
It was eventually discovered that contrary to what he had declared on each of six report cards he had filed with the Commission, the respondent had worked and had received earnings during the weeks to which the report cards referred.
Applying subsection 33(1) of the Unemployment Insurance Act, the Commission informed the respondent that in its opinion he had knowingly made six false or misleading statements or misrepresentations in relation to his claim for benefit and therefore a penalty of six times the amount of $312, i.e. $1,872.00, had been imposed.
The respondent appealed the Commission's decision to a Board of Referees. The appeal was dismissed.
The respondent then appealed the decision of the Board of Referees to an Umpire, who allowed the appeal in part for the following reason:
In the present case, the Commission calculated the penalty at four times (sic) the claimant's weekly benefit rate of $312. The assessment of a penalty of $1,872 was made in error. According to s. 33(1) as it then stood, the penalty should have been not greater than an amount equal to three times the weekly benefit rate of $312, or the sum of $936. Consequently, the claimant's argument that the penalty of $1,872 is unjust and outrageous has merit.
With respect, the Umpire misunderstood the meaning of subsection 33(1) of the Act. That section reads, as follows:
33(1) Where the Commission becomes aware of facts that in its opinion establish that a claimant or any person on his behalf has, in relation to a claim for benefit, made a statement or representation that he knew to be false or misleading or, being required under this Act or the regulations to furnish information, furnished such information or made any representation that he knew to be false or misleading or, being required under this Act or the regulations to furnish information, furnished any information or made any representation that he knew to be false or misleading, the Commission may impose a penalty on that person not greater than an amount equal to three times his weekly rate of benefit.[emphasis added]
Pursuant to that subsection, the Commission had the discretion to impose a penalty in any amount not exceeding three times a claimant's rate of benefit for any false or misleading statement or representation that was made in relation to "a claim for benefit". Subsection 40(1) of the Act specifies that "a claim for benefit" must be made for each week of unemployment. Such a claim is to be distinguished from an "initial claim for benefit" as defined in section 5 of the Act and referred to in subsection 39(5).
The respondent's rate of benefit was $312.00 per week. The falsification of his report card occurred in six separate instances and, therefore, in relation to six separate claims. The Commission had the discretion to impose a penalty of up to three times the respondent's weekly rate of benefit (3 X $312 = $936) for each of the six misleading representations (6 X $936 = $5616). It chose, instead, to impose a lesser penalty in an amount equal to the weekly rate of benefit (6 X $312 = $1,872). That was a proper exercise of its discretion and there was no miscalculation.
We wish to add that in any event the Umpire did not have jurisdiction to reduce the penalty imposed by the Commission. In relation to decisions involving the exercise of discretion on the part of the Commission, under subsection 33(1), the Umpire exceeds his jurisdiction when he substitutes his own point of view for that of the Commission. 1 At best, had the Umpire properly found that the Board of Referees had committed a reviewable error in not overturning the decision of the Commission, his only power would have been to remit the matter back to the Board of Referees with an indication of the reasons why the decision of the Commission should be made anew.
The application shall be allowed, the decision of the Umpire dated April 2, 1993 shall be set aside and the matter should be referred back to an Umpire to be decided on the basis that the Board of Referees did not commit any reviewable error in confirming the decision of the Commission.
(Sgd.) "Robert Décary"
J.A.