The onus is initially on the Commission to prove that a claimant knowingly made a false or misleading statement. The onus of proof that rests on the Commission is to establish on a balance of probabilities, not beyond a reasonable doubt, that the claimant made a statement or representation that he or she knew was false.
McDonald v. C.E.I.C. [1991], F.C.J. No. 533 (F.C.A.) A-897-90
Canada (A.G.) v. Corner, December 9, 1993 F.C.J. No. 1374 (F.C.A.) A-18-93
Canada (A.G.) v. Gates, [1995] 3 F.C. 17 (F.C.A.) A-600-94
Canada (A.G.) v. Purcell, [1996] 1 F.C. 644 (F.C.A.) A-694-94
This onus can only be discharged by the Commission adducing evidence of both the actual questions asked as well as the answers given. In cases where a claimant has used the Teledec system to file a report there must be evidence of the actual questions which were posed to the claimant.
Caverly v. The Minister of Human Resources, February 28, 2002, F.C.J. No. 312 (F.C.A.) A-211-01
Where the Commission does not provide the reporting cards as evidence that the claimant made a false statement, the issue becomes whether the Commission can otherwise establish what questions were asked of a claimant and what answers were given. The Commission should not attempt to prove false statements in a penalty appeal by way of indirect evidence.
Canada (A.G.) v. Miller, [2002] F.C.J. No. 60 (F.C.A.) A-772-00
Badra v. Canada (A.G.) , [2002] F.C.J. No. 570 (F.C.A.) A-420-01
Once it appears from the evidence that the claimant has made a false or misleading statement, the onus shifts to the claimant to provide an explanation that rebuts the inference that the false statements were knowingly made.
Canada (A.G.) v. Gates, [1995] 3 F.C. 17 (F.C.A.) A-600-94
Canada (A.G.) v. Purcell, [1996] 1 F.C. 644 (F.C.A.) A-694-94
Canada (A.G.) v. Antonio, September 22, 1998, F.C.J. No. 1518 (F.C.A.) A-743-97
Nangle v. Canada (A.G.) , [2003] F.C.J. No. 740 (F.C.A.) A-194-02
Whether the explanation offered by the claimant is acceptable depends on the evidence and the circumstances. The Commission and the Board of Referees may take into account common sense and objective factors. In other words, if a claimant claims to be ignorant of something that the whole world knows, the Commission or the Board could rightly disbelieve the claimant and find that there was in fact, subjective knowledge, despite the claimant’s denial. It is possible, though unlikely, for a claimant to be truly ignorant of some fact, even a simple one, when nearly everyone would know it.
Canada (A.G.) v. Gates, [1995] 3 F.C. 17 (F.C.A.) A-600-94
Generally therefore, a claimant will not be able to escape a penalty by merely proclaiming a lack of knowledge. People often say they do not know something, when in fact they do and they do not have to be believed. "Despite professed ignorance, the Commission and the Board of Referees, depending on the evidence and common sense, may disbelieve these claimants and decide that there was in fact knowledge of falsity."
Canada (A.G.) v. Gates, [1995] 3 F.C. 17 (F.C.A.) A-600-94
The evidence about a claimant’s knowledge must be evaluated by the Commission or the Board of Referees and findings of fact and credibility made. It is not enough to say that the claimant was not credible or that credibility was in doubt". Merely disbelieving a claimant’s testimony is not a sufficient basis for the Board of Referees to conclude that he or she knowingly made a false or misleading statement. There is another element of proof required, relating to the claimant’s state of mind at the time the statement in question was made and the onus in that regard is on the Commission.
McDonald v. C.E.I.C. [1991], F.C.J. No. 533 (F.C.A.) A-897-90
Canada (A.G.) v. Gates, [1995] 3 F.C. 17 (F.C.A.) A-600-94
Canada (A.G.) v. Childs, May 26, 1998 F.C.J. No. 721 (F.C.A.) A-418-97
Once it is established that the requirements for the penalty sections of the legislation to apply have been met, that is, that the statements were contrary to the truth and that the person who made those statements knew that full well, a fine must be imposed. The situation in which the statements were made may operate as mitigating circumstances in determining the quantum of the penalty, but it is up to the Commission or the Board of Referees to decide this, not the Umpire.
Turgeon v. C.E.I.C. [1997], F.C.J. No. 167 (F.C.A.) A-715-95
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2009-04-28