(Judgment rendered in Ottawa, Ontario,
Wednesday, April 23, 1997)
JUDGMENT OF THE FEDERAL COURT OF APPEAL
Date:
April 23, 1997
Docket:
A-425-96/ A-777-96/ A-778-96/ A-779-96/ A-426-96/ A-780-96/ A-781-96/ A-783-96
Umpire's Decision:
CUB 33461 / 33462 / 33463 / 33464 / 33468 / 33469 / 33470 / 33471
"TRANSLATION"
CORAM:
HUGESSEN,
DÉCARY, JJ.A.
CHEVALIER, D.J.
A-425-96 (CUB 33461)
A-777-96 (CUB 33462)
A-778-96 (CUB 33463)
A-779-96 (CUB 33464)
BETWEEN:
MICHEL BRIEN,
applicant,
- and -
THE CANADA EMPLOYMENT
AND IMMIGRATION COMMISSION,
respondent,
- and -
THE DEPUTY ATTORNEY GENERAL OF CANADA,
mis en cause.
A-426-96 (CUB 33468)
A-780-96 (CUB 33469)
A-781-96 (CUB 33470)
A-783-96 (CUB 33471)
BETWEEN:
MICHEL RAJOTTE,
applicant,
- and -
THE CANADA EMPLOYMENT
AND IMMIGRATION COMMISSION,
respondent,
- and -
THE DEPUTY ATTORNEY GENERAL OF CANADA,
mis en cause.
Hearing held in Montréal, Québec, Wednesday, April 16, 1997.
REASONS FOR JUDGMENT
(Judgment rendered in Ottawa, Ontario,
Wednesday, April 23, 1997)
DÉCARY J.A.:
These eight applications for judicial review, which were heard and decided together on appeal before the umpire, were also heard together in this Court and the reasons that follow will dispose of each application. At the hearing the Court, for all intents and purposes, limited the argument to an issue involving the construction of section 43 of the Unemployment Insurance Act ("the Act") 1, namely: is the decision-making process established by this section tainted if the Commission fails to inform the claimant, in one and the same document, of its decision that he received an overpayment and the amount of that overpayment?
From the outset, the Commission argued that the Court need not answer this question, which had not been raised before the board of referees, and which the umpire had refused to answer since, in his opinion, the Commission, had it been so apprised, could have presented additional evidence to the board of referees. Since the issue was adequately argued at length before us and has been raised in other litigation that is pending at this time, and since counsel for the Commission was able, from the evidence already on the record, to provide a very decent explanation of the procedure that the Commission followed in practice, it appeared to us that, in the interest of the sound administration of justice, we should use the opportunity to turn our attention to what is, essentially, a question of law.
The procedure generally followed by the Commission is the following. When it reconsiders a claim for benefit within the time periods prescribed by section 43, and it decides that a claimant has received more than he was entitled to, it notifies the claimant of its decision in more or less the following terms:
This decision results in an overpayment. You will be informed of the amount owing....The Commission retains a copy of this notice in its file.If you have any information that might enable us to alter this decision, please communicate it to us at your earliest convenience. You have the right to appeal, nevertheless.
In the following weeks, the Commission, through a new notice issued by another official working within another administrative division, informs the claimant of the specific amount of the overpayment. The Commission does not retain a copy of this second notice in its file; it simply indicates in its computers that this notice has been sent to the claimant on such-and-such a date. Consequently, the only evidence that the Commission is itself able to provide concerning the sending of this notice is the computer record: since there is no copy of this notice, the original is, in theory, in the claimant's possession.
The applicants submit that the Commission should, at the same time and in the same document, inform the claimant both of the decision it has made in reconsidering his file and of the amount of the overpayment as determined in this reconsideration. The Commission, they argue, cannot proceed by stages; the initial notice that the Commission sends, which covers only the conclusion concerning the existence of an overpayment, is void since it does not indicate the result of the calculation that the Commission made of the amount of the overpayment. The second notice, which indicates the amount of the overpayment, is invalid since it is intended to perfect an initial notice that is already invalid. The applicants base their submissions on the judgments of this Court in Brière v. Canada (Employment and Immigration Commission) 2 and Laforest v. Canada (Attorney General).Laforest v. Canada (Attorney General). 3
To understand the argument, it is essential to reproduce the text of section 35 of the Act, which establishes the claimant's obligation to repay the overpayment and the debt due to the Crown, having regard to this overpayment:
35. (1) Where a person has received benefit under this 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 33, 37 or 38 are debts due to Her Majesty and are recoverable as such in the Federal Court 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 be deducted and retained out of the benefit payable to the claimant.
(4) No amount due as a debt to Her Majesty under this section may be recovered after seventy-two months from the date on which the liability arose.
(5) A limitation period established by subsection (4) does not run during any period when there is pending an appeal or other review of any decision establishing liability for the amount to be recovered.
The issue in the case at bar is not the one that was posed in Brière and Laforest. In Brière, it appears that the Commission had notified the claimant on May 25, 1981 that it was voiding all the fictitious benefit periods fraudulently claimed by the claimant, and had notified him on June 29, 1981 of the amount of the overpayment. This second notice had been sent to the wrong address, and it was not until May 15, 1984 that the claimant was informed of the amount he had to repay. This Court held that the date of notification of the calculation of the overpayment should be May 15, 1984, and that this notification was out of time since it dealt with benefits paid more than six years earlier. I note, however, that if the actual date of notification had been June 29, 1981, the Court would have found in favour of the Commission, even though the amount of the overpayment did not appear in the notice of May 25, 1981 and appeared only in the notice of June 29, 1981. The Commission, in Brière, had therefore proceeded in two stages, and no one was criticizing it on that ground.
In Laforest, it appears that the Commission had sent the claimant only one notice, dated April 25, 1985, which informed her of both the decision by the Commission not to accept the amount of earnings claimed by Ms. Laforest and of the overpayments that she had to repay. This notice was held to be out of time in regard to the overpayments made prior to April 25, 1982.
It is necessary, therefore, to avoid giving the Brière and Laforest judgments a meaning they cannot bear. This Court has, it is true, stated that the decision-making process under section 43 includes four stages: the reconsideration of the claim for benefit, the decision (which I will refer to as the overpayment decision) that the claimant has received a sum to which he was not entitled, the calculation of that sum (which I will refer to as the overpayment calculation), and the notification to the claimant. The Court has also stated that these four stages should be completed within the thirty-six months stipulated by subsection 43(l). Finally, it has stated that the Crown can recover from the claimant only the amount of the benefits paid within the thirty-six months preceding the date on which he was given notice of the amount calculated.
However, the Court did not say in these judgments that the overpayment decision necessarily had to specify the amount of the overpayment and it did not say that a single notification should have been made to the claimant, through which the claimant would be informed of both the overpayment decision and the amount of the overpayment.
The actual wording of subsection 43(5) removes any doubt, if doubt there were. Parliament requires in this subsection that the claimant be notified of "the amount calculated under subsection (1)". If it had intended that he be given only one notification, under subsection 43(l), it would have again used in subsection 43(5) the expression "notify the claimant of its decision" that it had already used in subsection 43(l).
With respect, I think the problem raised by the applicants is a false problem. Section 43 does not apply only to the initial claim for benefit contemplated by subsection 39(l); it is also, and, I suspect, in practice, applicable in particular to the weekly claim for benefit contemplated in section 40. The procedure for reconsideration of a claim established in section 43, and the recovery procedure established in section 35, are ongoing enforcement mechanisms that allow the Commission to redirect its fire from week to week, as errors or frauds are brought to its attention. In practice, therefore, it is the notification of the overpayment amount that determines how far back in time the Commission may go in the course of its reconsideration, and that triggers the mechanism for recovering the debt discovered in the course of this reconsideration.
The process is a simple one. The Commission can only calculate an overpayment in regard to a payment made no earlier than thirty-six months before the time when it notified the claimant of the amount of this overpayment. However, the Commission must make this claim no later than seventy-two months after the date of this notification. Let us suppose that a payment was made to a claimant on April 1, 1990. The Commission may only question this payment if it notifies the claimant, no later than April 1, 1993, of the amount of the overpayment it has calculated in relation to that payment, and the Crown may recover this overpayment only if it commenced recovery procedures no later than April 1, 1999.
It matters little, in these circumstances, whether the different steps prescribed in subsection 43(l) were taken on the same day or whether the claimant was informed of the various decisions taken in his regard as they were taken or at the very end of the process, or whether these decisions were recorded in a single document, since in any event the only time that matters is the time when the process is completed, that is, the time when the claimant is notified by the Commission of the amount of the overpayment.
It is the Commission that suffers if it delays notifying the claimant of the amount calculated. Each week that elapses before such notification has been made means one less payment that the Commission may query under section 43. Furthermore, in the case at bar, the Commission had to acknowledge before the umpire that, in view of the thirty-six month period that had elapsed, it could no longer reconsider the claims prior to December 1, 1991 in the case of Brien (notification of the amount calculated was made on December 1, 1994) and prior to November 17, 1991 in the case of Rajotte (notification of the amount calculated was made on November 17, 1994).
It follows that the Commission is fully entitled to proceed as it did, that is, in first notifying the claimant that it has reconsidered his claim, that it has concluded that there was an overpayment, that it has determined the amount of this overpayment, and that it will inform him eventually of the amount of this overpayment, and secondly notifying him of the said amount.
I hasten to acknowledge that the text of the first notice could be clearer. And no doubt the Commission has an interest in retaining a copy of the second notice, in relation to the amount calculated, that it sends the claimant.
The fact that the Commission does not keep a copy in its file gives rise to some substantial evidentiary problems and prevents the Commission from filing with the board of referees, the umpire and this Court a record that is complete. Since it is through this second notice that the completion of the process in section 43 can be verified, and through the date of notification that it can be determined whether the claims that were reconsidered fall within the thirty-six month period under this section, it is inconceivable that the Commission does not keep a copy thereof. There is a particular problem in that the claimant is not required, in his notice of appeal to the board of referees, to state the grounds that he intends to argue. Since it is the Commission that prepares the record for the board of referees, and since it appears before the board only through its written observations, it is at the mercy of the claimant if he decides at the hearing to argue that he was not notified: absent any evidence of notification on the record, the board has no choice but to find that the decision-making process in section 43 was not completed, and to allow the appeal. The Commission cannot subsequently perfect its record on any appeal it may make to an umpire.
This policy is, in our opinion, particularly inept, and I fail to see what austerity measure can justify it. But administrative ineptitude is not, in itself, a source of rights for citizens. It becomes such only if it leads to a violation of the rights conferred on them by law, or to a breach of the obligations imposed by law. But there is nothing of that nature here. The computer record indicates that there was a notification and the applicants are not arguing that they failed to receive this notification; the applicant Rajotte is in a particularly poor position to complain, since the notice of appeal that his counsel filed with the board of referees referred to the amount of the overpayment and apparently contained as an appendix the notice to that effect that the Commission had sent to his client. The applicants are arguing, instead, that the notice they received was not consistent with the requirements of the Act. However, as I held earlier, section 43 does not prevent the Commission from sending two distinct notices, and even if notices could be voided on the ground that they are formally defective or because no copy thereof was retained, there is in this case no formal defect since section 43 does not impose any specific form, nor does it formally require that the Commission retain in its records copies of the notices it sends out.
The applicants have therefore failed to persuade me that the Commission breached its obligation to notify them of the amount of the overpayment it had calculated. I dare hope, however, that notwithstanding its success in this Court, the Commission will remedy the administrative deficiencies I deplored above at the earliest possible opportunity.
Since counsel for the Commission conceded, as I noted earlier, that the Commission was out of time for a reconsideration of the claims filed by the applicant Brien prior to December 1, 1991 and the claims filed by the applicant Rajotte prior to November 17, 1991, it follows that the application for judicial review by the applicant Brien in file A-425-96 and the application by Rajotte in file A-426-96 should be allowed, with the appropriate directions.
Accordingly, the applications for judicial review by Brien in files A-777-96, A-778-96 and A-779-96 should be dismissed. In file A-425-96, the application for judicial review should be allowed, the decision of the umpire set aside, and the matter returned to the chief umpire or the umpire he designates, with instructions to allow the appeal by the claimant Brien in its totality.
The applications for judicial review by Rajotte in files A-780-96, A-781-96 and A-783-96 should be dismissed. In file A-426-96, the application for judicial review should be allowed, the decision of the umpire set aside, and the matter returned to the chief umpire or the umpire he designates, with instructions to allow the appeal by the claimant Rajotte, but only in regard to that part of the Commission's reconsideration that covers the weeks of October 20 and 27, 1991.
Robert Décary
J.A.
1 Section 43 of the Unemployment Insurance Act reads as follows:
43. (1) Notwithstanding section 86 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 not 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 79.
(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 35.
(4) If the Commission decides that a person was qualified and entitled to receive money by way of benefit, and the money 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 35 shall, for the purposes of subsection 35(4), 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).
2011-01-10