CUB 13922
JUDGMENT OF THE FEDERAL COURT OF APPEAL
Date:
June 15, 1988
Docket:
A-607-87
Umpire's Decision:
CUB 13922
"TRANSLATION"
CORAM :
MARCEAU J
MacGUIGAN J
LACOMBE J
IN RE AN APPLICATION PURSUANT TO S 28 OF THE FEDERAL COURT ACT
BETWEEN :
ATTORNEY GENERAL OF CANADA,
applicant,
-and-
RACHEL LAFOREST,
respondent,
-and-
DENAULT J, UMPIRE
mis-en-cause.
Hearing held at Montreal on Monday, March 14, 1998.
REASONS FOR JUDGMENT
(Judgment rendered at Ottawa
on Wednesday, June 15, 1988)
LACOMBE J
This application made pursuant to the Federal Court Act is against a decision of an umpire allowing in part the appeal of the respondent brought pursuant to the Unemployment Insurance Act, 1971.
On September 6, 1981, the respondent lost her full-time employment as a receptionist at the Centre d'accueil Cité des Prairies Inc., but continued to work on a part-time basis. Her application for benefits was approved and a benefit period established for her beginning on September 6, 1981. From September 1981 to September 1982 she received benefits from the Commission, 1 as well as certain remuneration from her employer, such as wages, vacation pay and other benefits which she reported to the Commission when she made her weekly claims for benefit.
On March 11 and May 30, 1983, the Commission obtained information from the employer on the amounts paid by it to the respondent, which did not correspond exactly with the latter's statements. A year later the respondent was asked to report to the Commission's local office on June 21, 1984. As she could not be there in person, it was agreed by telephone that she would check the information supplied by her employer, which was sent to her by mail by the Commission on June 18, 1984, and would reply within ten days. The respondent returned this information request form with her comments on a date not indicated in the record.
On June 15 and 18, 1984, the Commission obtained certain further details by telephone from the respondent and the employer.
That is where matters stood until April 25, 1985, when the Commission told the respondent it had undertaken a reassessment and reallocation of her earnings on a weekly basis and the result had been an overpayment that would be deducted from her future benefits. This repayment notice informed the respondent of her right to appeal the decision to a board of referees, which she exercised but without success. Her appeal to the umpire was allowed in part: hence the appeal to this Court by the Attorney General of Canada.
The umpire found that s 57 of the Act, which applied whereas s 102 did not, prevented the Commission from claiming to be repaid benefits overpaid more than thirty-six months before the date of the repayment notice of April 25, 1985. Only the overpayment received between April 25 and September 5, 1982 could be recovered.
The relevant provisions of the Act are as follows:
Sec 49.(1) Where a person has received benefit under this Act or the former Act for any period in respect of which he is disqualified or any benefit to which he is not entitled, he is liable to repay an amount equal to the amount paid by the Commission in respect thereof.
(2) All amounts payable under this section or section 47, 51 or 52 are debts due to Her Majesty and are recoverable as such in the Federal Court of Canada or any other court of competent jurisdiction or in any other manner provided by this Act.
(3) Where a benefit becomes payable to any claimant, the amount of any indebtedness described in subsection (1) or (2) may, in the manner prescribed, be deducted and retained out of the benefit payable to him.
(4) No amount due as a debt to Her Majesty under this section may be recovered after thirty-six months from the date on which the liability arose unless in the opinion of the Commission an offence under subsection (1) of section 47 has been committed in connection therewith in which case no such amount may be recovered after seventy-two months from the date on which the liability arose.
Sec 57.(1) Notwithstanding section 102 but subject to subsection (6), the Commission may at any time within thirty-six months after benefit has been 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 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.
(2) Any decision made by the Commission pursuant to subsection (1) is subject to appeal under section 94.
(3) If the Commission decides that a person has received money by way of benefit for any period in respect of which he was not qualified or money by way of benefit to which he was not entitled, the amount therefor as calculated under subsection (1) is the amount repayable under section 49.
(4) If the Commission decides that a person was qualified and entitled to receive money by way of benefit, and such was not paid, the amount thereof as calculated under subsection (1) is the amount payable to the claimant.
(5) The day that the Commission notifies the person of the amount calculated under subsection (1) to be repayable under section 49 shall, for the purposes of subsection (4) of section 49, be the date on which the liability arises thereunder.
(6) Where, in the opinion of the Commission, a false or misleading statement or representation has been made in connection with a claim, the Commission has seventy-two months within which to reconsider the claim under subsection (1).
Sec 102. The Commission, a board of referees or the umpire may in respect of any decision given in any particular claim for benefit rescind or amend the decision on the presentation of new facts or on being satisfied that the decision was given without knowledge of, or was based on a mistake as to, some material fact.
The only point at issue before the umpire and in this Court was as to which of the two sections in question, 57 or 102, applied here and what were the consequences for the Commission's right of recovery of applying one rather than the other of these provisions. The Attorney General did not contend, even alternatively, that if only s 57 were to apply the Commission could recover benefits overpaid beyond the thirty-six-month deadline, provided it had reconsidered the matter within that deadline. On the contrary, he made every effort to show that the Commission's decision could only be based on s 102 of the Act, and that precisely because that section, unlike s 57, did not place any time limit on action by the Commission, it was not barred from claiming reimbursement of all benefits overpaid to the respondent.
The single argument made by the applicant cannot be upheld. It was properly dismissed by the umpire. For the reasons given by this Court in its judgment rendered today in Michel Brière v. Canada Employment and Immigration Commission et al (A-637-86), it is now established that s 102 cannot serve as a legal basis for a power of the Commission simply to determine by itself that benefits have been overpaid and ask for their repayment. This power to find there has been an overpayment of benefits is conferred on the Commission by s 57, and only that section is linked to s 49 of the Act: s 102 is not. The decision taken by the Commission creates a debt which becomes executory against the claimant as soon as he is notified of the amount to be repaid. The Commission's right to establish its debt and recover it results from the interaction of ss 49 and 57.
It follows that the recovery notice given to the respondent on April 25, 1985 could only be issued, and the money recovered from her, pursuant to s 57(1) of the Act. It remains to determine whether, as Marceau J. wonders, this action can be taken after the thirty-six-month deadline mentioned in the subsection in question has passed. The majority decision of this Court in the aforementioned case of Michel Brière indicates that a negative answer has to be given to the question. It was there held that notification is essential to complete the decision-making process created by s 57(1) of the Act. Like the other operations mentioned in the subsection, it must take place within the specified thirty-six-month deadline in order to give the Commission a right of action and recovery against the claimant.
After analysing the relevant provisions of the Act the umpire concluded that the Commission had lost its right of recovery against the respondent for benefits overpaid before April 25, 1982 because of the delay in sending its recovery notice of April 25, 1985, which could not cover that period. The umpire's reading of s 57(1) of the Act is not only the first that comes naturally to mind but, with respect for the contrary view, the only one which it can be given in the circumstances.
Section 57(1) has to be read as a whole. In this way, it presents no difficulties of interpretation. As the wording of the provision is itself clear and presents no ambiguities, there is no need to seek the legislative intent anywhere but in the wording of the Act itself. 2 There it can be seen that in ss 49 and 57 Parliament established a special system for the recovery of overpaid unemployment insurance benefits which consists of two well-defined stages, each accompanied with an identical and mandatory thirty-six-month time limit within which the Commission must first establish that there was an overpayment and then proceed to recover it. There is thus complete symmetry of deadlines between the two stages.
If we analyse the wording of s 57(1) of the Act, which provides for the establishment of an overpayment by the Commission, we can see that its parts go to make up a homogeneous whole beginning with reconsideration of the claim for benefits and ending with notification of the claimant. Reconsideration of the application necessarily leads to a decision on it, namely that there has been an overpayment or underpayment. Instead of being separate, the reconsideration and decision are closely linked by the conjunction "and".
The Petit Robert defines the word "et" [and] as follows:
Co-ordinative conjunction serving to link parts of speech or propositions having the same function or role and to express an addition, intersection, connection or junction.
There can thus be no caesura between the reconsideration and the decision. It is clear from the use of the words "and if the Commission decides" that the decision must be made within the same thirty-six-month deadline. This is the decision of which the claimant must be notified, and the time limit for appealing to the board of referees begins to run from such notification (s 57(2)). The prescription deadline for recovery of the debt also begins to run from the time calculation of the amount repayable is notified to the claimant (ss 49(4) and 57(5)).
This means that the Commission has thirty-six months from the date of payment to reconsider an application, make its decision, do the necessary calculation and notify. It is only when the Commission decides that an error has been made in the payment of benefits in one direction or the other that it must notify the claimant both of the fact that an error has been made and of the amount in question.
If it were otherwise, and if the time limit could be linked only to the reconsideration of claims, there is no reason not to also separate everything that follows, including the decision that there was an under- or overpayment.
The logic of this analysis would lead to the conclusion that the Commission had thirty-six months to reconsider claims for benefits, the only strict deadline it must observe, and an unlimited time in which to make its decision, as well as to calculate the amount in question and still more to notify the claimant.
There are three objections to such an interpretation. First, the general scheme of the Act gives the Commission a period of thirty-six months in which to establish its debt, and the same thirty-six-month period to claim it, the latter period beginning when the first expires by notification.
By not sending a notification, the Commission could obtain whatever deadlines it liked simply by saying that it is proceeding with consideration of the claim within the specified deadline. This process could continue indefinitely and a bona fide claimant might have his unemployment insurance benefits reclaimed from him several years after receiving them. How could he effectively challenge the decision before a board of referees?
Second, notification is the only way for the board of referees and then the umpire to monitor the Commission's decision-making process. How can anyone check whether the Commission has reconsidered the claim within thirty-six months if it does not have to notify the claimant within that time period? Notification is the only outward sign of the action taken by the Commission in respect of a claim for benefits, namely its reconsideration, the resulting decision and the calculation of the amount in question. It is thus the only way for the board of referees, the umpire and ultimately this Court, through s 28 of the Federal Court Act, to verify not only the merits of the Commission's decision but also its "legality", that is, whether it was made within the required deadline.
Finally, the system created by Parliament in ss 49 and 57 for the recovery of unemployment insurance benefits is an exceptional one, which is a departure from the ordinary law. As such, the sections in question must be strictly construed. They give the Commission exceptional powers, in which it is both judge and jury, to determine its debt itself and recover it not only in the courts but, if necessary, to carry out the recovery itself "in any other manner provided by this Act" (s 49(2)), such as by set-off (s 49(3)), filing its certificate in the Federal Court, claims on a third party which are a form of garnishment, and so on (s 112). These exceptional powers must be kept strictly within the limits and requirements specified by the Act, which includes the time limits for exercising them, and they cannot be extended by judicial interpretation or by seeking to determine the alleged intentions of the legislator.
Parliament's intention is made clear in the wording of this legislation itself. Other intentions cannot be postulated so as to substitute for the only interpretation produced by analysis of the wording itself some other interpretation that could be given to the Act. There is no indication here that the deadline is much too short to have been intended by the legislator. The wording also gives no indication that the Commission must demonstrate a spirit of conciliation in exercising the powers conferred on it. Quite the contrary is suggested by the wording and the context of these provisions.
The three-year deadline suggested in s 57(1) is in itself long enough to dispose of ordinary cases such as the one at bar, in which the Commission had only to check the claimant's statements with the employer and ask the claimant for comments in the event of a discrepancy. What takes time is the investigation the Commission must conduct, not the calculation of the amount to be repaid and notification of the claimant.
It is for Parliament, not the courts, to decide that a deadline is too short or insufficient, as was the case in 1977 when by SC 1976-77, c 54, s 48, subs (6) was added to s 57, to give the Commission an additional thirty-six months to consider cases of overpayments resulting from false or misleading statements or representations and the discretion to determine itself whether such cases existed. Similarly, under s 47(1) 3 of the Act the Commission has the further power of imposing an administrative penalty of triple the benefit rate. This is far from any idea of conciliation and temporising with claimants, all of which tends to confirm that the purpose of ss 49 and 57 is to enable the Commission to proceed rapidly with the recovery of overpaid benefits and to impose its decisions on claimants itself, subject only to an appeal to a board of referees.
The foregoing is well illustrated by what happened in the case at bar. After a benefit period was established in September 1981 the Commission allowed over a year and a half to elapse before contacting the employer, another year before asking the claimant for comments and nearly a year before sending her a recovery notice on April 25, 1985; and it did all this without anything in the record that could serve to explain these delays. Once again, there is no evidence that the Commission completed the review of the claimant's case and took a decision about her at any date other than that of the notification of April 25, 1985. In June 1984 the Commission was still conducting its inquiry. On the 14th, the claimant was sent a written notice summoning her to an interview. She telephoned on June 15 and on June 18, 1984, the employer was telephoned and the claimant was sent an information request form asking her to give her comments on the discrepancies between the figures mentioned in her statements and those supplied by her employer. On June 18, 1984 the Commission was still seeking information, details and comments. The record says nothing of what occurred subsequently, except that at last on April 25, 1985, the notification referred to in s 57 of the Act was given. The Commission was then beyond the mandatory deadline set by s 57(1). The document of June 18, 1984 was not a recovery notice: it was a request for information. On that date the Commission had reached no conclusions; it had not completed its review of the claimant's case; it was awaiting her comments and information. It will be recalled that the summons to an interview on June 14, 1984 said, inter alia:
I must have an interview with you about the claim for unemployment insurance benefits you made on September 14, 1982. [sic should read 1981]
For these reasons, I would dismiss the application at bar to review and set aside and would affirm the decision of the umpire.
(Bertrand Lacombe)
JFCC
I concur.
Mark R. MacGuigan J
1 Section 26(2) of the Act authorizes the payment of benefits in such a case, but the employee's earnings over 25 per cent of his weekly benefit rate are deducted.
2 The Sussex Peerage Case (1844), 11 C1 Fin 85, at 143; 8 ER 1034, at 1057
3 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 of misleading or, beig 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 penallty on that claimant not greater than an amount equal to three times his weekly rate of benefit.
MARCEAU J
This s 28 application concerns a decision of an umpire acting pursuant to the Unemployment Insurance Act, 1971, SC 1970-71-72. The problem it raises is difficult to state in the abstract and what is at issue can only be seen by looking at the specific facts. These facts are in any case quite straightforward though their chronology must be carefully noted. They are as follows.
On September 6, 1981 the respondent, Mrs. Laforest, wrote the Employment and Immigration Commission and made a claim for benefits, saying she had suffered an "interruption" of the earnings she had till then been receiving from her employer, the Centre d'accueil Cité des Prairies Inc ("The Centre d'accueil" or "the employer"). The respondent had not in fact completely lost her employment as a receptionist at the Centre d'accueil, but had become a part-time employee only, and under the Act as we know an "interruption of earnings" creating a right to benefits can be alleged by an employee who, though still working for his employer, has his working hours so reduced that his earnings fall below a fixed minimum. The Commission approved the respondent's claim and established a benefit period for her. It was then necessary to establish each week the benefits payable, taking into account the earnings the recipient had received from her part-time employment, which apparently was done until the period ended on July 4, 1982, on the sole basis of the statements made by the respondent in submitting her claims week by week.
On February 24, 1983 (when, I suppose, the file was reviewed) the Commission wrote the Centre d'accueil to verify the amount of the earnings received by Mrs. Laforest during the period in which benefits were paid to her. At that time it received information that did not exactly correspond to the statements on the basis of which it had paid the benefits. An investigation was then started and this took some time to complete. There was apparently some difficulty in arriving at definite conclusions on the amounts involved, particularly as a special problem arose in considering and allocating various amounts of vacation pay. The record is not sufficiently complete for the Court to see the problem clearly. What the record contains is, first, a notice from the Commission dated June 8, 1984, asking Mrs. Laforest to come to the local office and explain matters; later, a note that Mrs. Laforest could not be present and wished the matter to be handled in writing; later still, a series of requests for information either from the Commission to her or from her to the Commission. Finally, we come to a definite notice from the Commission to the respondent, dated April 25, 1985, first telling her of the amounts determined in respect of the earnings made by her during her weeks of benefits and then informing her of the overpayments resulting from her erroneous statements and that these would have to be repaid. The respondent objected, and on July 3, 1985 asked for the matter to be heard by a board of referees.
Through her counsel, Mrs. Laforest took a completely new approach before the board of referees. She no longer objected to the Commission's arguments, either those regarding the exact amount of her earnings or those concerning how they were allocated. What she said was that it was now too late for the Commission to claim repayment. She was not able to persuade the board of referees but she had more success with the umpire. The latter concluded that beyond thirty-six months of weekly benefit payments the Commission was no longer entitled to claim repayment, with the result that the claim notice of April 25, 1985, the first which made a definite demand, could not affect benefits paid over three years before. It is this decision of the umpire which this Court must now examine on its merits.
The problem before the Court can now he seen: the question is for what period of time the Commission may, on its own authority, claim the repayment of overpaid benefits from a person who has wrongly received them.
There is no difficulty deciding which provisions of the Act are likely to be applicable, but they must be clearly borne in mind. It is therefore helpful to reproduce them again in full:
Liability for overpayments
49. (1) Where a person has received benefit under this Act or the former Act for any period in respect of which he is disqualified or any benefit to which he is not entitled, he is liable to repay an amount equal to the amount paid by the Commission in respect thereof.
(2) All amounts payable under this section or section 47, 51 or 52 are debts due to Her Majesty and are recoverable as such in the Federal Court of Canada or any other court of competent jurisdiction or in any other manner provided by this Act.
(3) Where a benefit becomes payable to any claimant, the amount of any indebtedness described in subsection (1) or (2) may, in the manner prescribed, be deducted and retained out of the benefit payable to him.
(4) No amount due as a debt to Her Majesty under this section may be recovered after thirty-six months from the date on which the liability arose unless in the opinion of the Commission an offence under subsection (1) of section 47 has been committed in connection therewith in which case no such amount may be recovered after seventy-two months from the date on which the liability arose.
Reconsideration of claim
Sec 57. (1) Notwithstanding section 102 but subject to subsection (6), the Commission may at any time within thirty-six months after benefit has been 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 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) If the Commission decides that a person has received money by way of benefit for any period in respect of which he was not qualified or money by way of benefit to which he was not entitled, the amount therefor as calculated under subsection (1) is the amount repayable under section 49.
. . . . .
(5) The day that the Commission notifies the person of the amount calculated under subsection (1) to be repayable under section 49 shall, for the purposes of subsection (4) of section 49, be the date on which the liability arises thereunder.
(6) Where, in the opinion of the Commission, a false or misleading statement or representation has been made in connection with a claim, the Commission has seventy-two months within which to reconsider the claim under subsection (1).
Amendment of decision
102. The Commission, a board of referees or the umpire may in respect of any decision given in any particular claim for benefit rescind or amend the decision on the presentation of new facts or on being satisfied that the decision was given without knowledge of, or was based on a mistake as to, some material fact.
The initial proposition in the umpire's decision is that the Commission's claim for repayment can only rest on s 57, and the Attorney General’s efforts were chiefly directed to challenging this proposition. He further argued that in a case where there are new facts it is s 102 which governs, a section which, like s 57 but on a more limited basis, provides for the possibility of the Commission amending a decision retroactively without having to meet any specific deadline. This Court has had occasion to consider and to reject this argument by the attorney General in the judgment rendered by it this day in Michel Brière v Canada Employment and Immigration Commission and the Attorney General of Canada, A-637-86. I will simply repeat what I wrote on this point for myself in the reasons I submitted in support of this judgment:
[TRANSLATION]
I feel that this suggestion by counsel for the appellant of reference to s 102 rather than s 57 rests on an approach to the Act which is not correct. As I understand it, s 102 has no part to play here. This section, which it should be noted is in the last Part of the Act dealing with purely administrative provisions, applicable in particular to appeals to the board of referees and the umpire, cannot be a basis for a decision that will result, by itself, de novo and independently, in a certain, liquidated and immediate obligation to repay. A decision under s 102, by correcting the terms of an earlier decision, may indeed have the effect of indicating that a payment was improperly made, because it was at the time based on information that was incorrect, incomplete or misunderstood and may thereby even bring out, so to speak, the existence of an obligation to repay by the person who received this payment without being entitled to it. However, this obligation to repay has no basis in the Act except s 49, which in subs 4) specifies a firm deadline for recovery running since the payment. Moreover, it is precisely because a decision under s 102 was not intended to affect the date on which an obligation to repay arose or the time the Commission has to enforce that obligation that it was quite unnecessary to impose on it any deadline or to associate it any way with s 49. Only s 57 gives the Commission the power to make a decision which in itself will give rise to a new, certain, liquidated and immediate obligation to repay.
The umpire thus correctly refused to consider s 102 and ruled that in order to claim an overpayment, the Commission had to "observe the requirements of ss 49 and 57 of the Act". This brings us to the key proposition of the umpire's decision, on which his conclusion is directly based, namely that under s 57 of the Act the Commission could no longer in its definite notice of April 25, 1985 claim to be repaid the amounts it had overpaid the respondent more than three years earlier.
The umpire of course based his proposition on the way he read subs (1) of s 57, which in his opinion makes the thirty-six-month deadline applicable to everything leading to notification of the claimant and that notification itself. Once again, the text reads:
57. (1) Notwithstanding section 102 but subject to subsection (6), the Commission may at any time with in thirty-six months after benefit has been 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 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.
It is certainly possible, and even perhaps reasonable, that reading this provision will suggest that the time limit introduced at the very beginning qualifies the entire provision and so covers everything mentioned subsequently. However, I think that first this interpretation, in strictly grammatical terms, is not the only acceptable one, and second, that if we seek to determine the legislative intent, it is not the best one and should be rejected.
From the purely analytical standpoint, I should note that the provision is divided into three parts, each relating to a very specific operation, namely reconsideration leading to the realization that an error has been made, determining the exact amount of the over- or under-payment, and notification, and that the three parts are clearly separated by a conjunction, which is authority for associating the mention of a time limit only with the first. The provision does not say that the Commission can reconsider, determine the overpayment and give notice within three years; it says that within three years the Commission may determine that an error has been made and then it will do this or that. Even more importantly, if the legislator did not intend to separate the reconsideration leading to the identification of an error from subsequent operations, it is hard to see why he even took the trouble to mention it, as he could simply have spoken of the determination of an amount over- or under-paid and notification of the claimant. The interpretation adopted by the umpire, though it may seem natural at first sight, is not the only possible one. A choice must therefore be made between two interpretations, and this choice must be made in accordance with whatever knowledge we have of the legislative intent. In light of this, I consider that the umpire's interpretation should not be upheld.
There are two principal reasons why I think that Parliament did not intend to make the three operations mentioned in subs (1) of s 57 subject to this mandatory deadline of three years. First, it seems to me that the deadline is much too short for this to be the case. It has to be borne in mind that we are dealing here with cases of error, which by definition can only be discovered some time after payment, and that it is hard for the Commission's investigative procedures, based as they are essentially on voluntary statements, to produce speedy results. It would of course not be right for recipients to continue for too long to be liable to lose what they have been paid, and of course it is also reasonable to require efficient and prompt administration from the Commission; but it also should not be forgotten that we are dealing with public funds and individuals who have received them without being entitled to do so.
I also feel that forcing the Commission to complete the three operations within such a short deadline would force it to adopt an approach that would be contrary to the philosophy of the system, which does not lend itself to rapid and unilateral decisions. It will readily be imagined that in many cases the only way for the Commission to avoid losing what is owed to it would then be to avoid any unnecessary communications, calculate the amount of the overpayment unilaterally and send the claimant to a board of referees. As we have seen, the case at bar is very typical in this respect. The investigators finished their investigation on June 18, 1984, and at that point the Commission could have determined the amount of the overpayment and simply claimed it. However, as usual, it sought to establish a dialogue with the claimant, a process which undoubtedly dragged on but which I feel is still desirable and is in the spirit which should pervade the administration of the system.
It might however be objected that a deadline which applies only to reconsideration would not really be effective, as it could be met simply by taking the case out of the file and proceeding to consider it. This objection does not stand up, as the reconsideration contemplated is one than has led to a decision, as the provision itself states, "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". It is a reconsideration which has actually demonstrated that there has been an "overpayment" or "underpayment", and I find it hard to see how the Commission could present persuasive evidence of this other than by referring to a notice to that effect sent to the claimant, exactly as it did here.
I therefore do not share the opinion of the umpire that on April 25, 1985 the Commission was no longer able to claim repayment of amounts overpaid three years before. The Commission had proceeded to reconsider Mrs. Laforest's case and concluded on June 18, 1984 that there had been an overpayment, as indicated by the notice which it caused to be sent to her on that date: it was within the deadline assigned to it by s 57.
I would therefore allow this application by the Attorney General and set aside the subject decision; I would refer the matter back to the umpire to be again decided by him in light of the interpretation I have given in these reasons to s 57 of the Act.
(Louis Marceau)
JFCC