The discretion to impose a penalty for false and misleading statements rests solely with the Commission. As long as the Commission exercises this discretionary power judicially, which means that it has taken all relevant considerations into account and has taken all relevant considerations into account and has not been influenced by any improper ones, then neither the Board nor the Umpire is entitled to interfere.
Canada (A.G.) v. Purcell, [1995] F.C.J. No. 1730 (F.C.A.) A-694-04
Canada (A.G.) v. Lai, [1998] F.C.J. No. 1016 (F.C.A.) A-525-97
Canada (A.G.) v. Antonio [1998] F.C.J. No. 1518 (F.C.A.) A-743-97
Canada (A.G.) v. Rumbolt, [2000] F.C.J. No. 1968 (F.C.A.) A-387-99
Canada (A.G.) v. McLean, [2001] F.C.J. No. 176 (F.C.A.) A-549-99
Canada (A.G.) v. Deen, [2003] F.C.J. No. 435 (F.C.A.) A-45-03
Canada (A.G.) v. Jamieson, [2005] F.C.J. No. 298 (F.C.A.) A-316-04
Canada (A.G.) v. Lingam, [2005] F.C.J. No. 758 (F.C.A.) A-396-04
Canada (A.G.) v. Uppal, 2008 FCA 388 (F.C.A.) A-341-08
However, a Board of Referees and an Umpire do possess the authority to vary a penalty imposed by the Commission for false and misleading statements where they are of the opinion that the Commission has wrongly exercised its discretion in imposing that penalty. The Board and the Umpire must first conclude that the Commission exercised its discretionary power in a non-judicial manner when it imposed the penalty, that is to say, on the basis of an improper motive or without taking into account all relevant considerations.
Canada (A.G.) v. Lebreton, [1995] F.C.J. No. 176 (F.C.A.) A-623-94
Morin v. C.E.I.C., [1996], 134 D.L.R. (4th) 724 (F.C.A.) A-453-95
Canada (A.G.) v. Longsworth, September 23, 1997, F.C.J. No. 1233 (F.C.A.) A-769-96
Gendron v. Canada (Employment Insurance Commission), October 8, 1997, F.C.J. No. 1420 (F.C.A.) A-926-96
Mucciarone v. C.E.I.C., January 17, 1997, F.C.J. No. 89, (F.C.A.) A-464-96
Canada (A.G.) v. Dunham, [1996] F.C.J. No. 1271 (F.C.A.) A-708-95
Canada (A.G.) v. Antonio, September 22, 1998, F.C.J. No. 1518 (F.C.A.) A-743-97
Canada (A.G.) v. Pyne, December 15, 1999, F.C.J. No. 2019 (F.C.A.) A-378-98
Canada (A.G.) v. Rumbolt, [2000] F.C.J. No. 1968 (F.C.A.) A-387-99
Canada (A.G.) v. McLean, [2001] F.C.J. No. 176 (F.C.A.) A-549-99
Canada (A.G.) v. Tong, [2003] F.C.J. No. 1033 (F.C.A.) A-412-02
Canada (A.G.) v. Kaur, 2007 FCA 287 A-372-06
In order to establish if the Commission's decision was exercised in a judicially correct manner, the Board can rely not only on the evidence that was before the Commission, but also on the evidence put before the Board. The appeal from the Commission to a Board of Referees is held de novo. Additional evidence can be introduced and the Board must make its own decision based on it.
Canada (A.G.) v. Kaur, 2007 FCA 287 A-372-06
Furthermore, when a claimant appeals a penalty imposed by the Commission, the Board of Referees is not limited to considering only those facts which were before the Commission when it made its decision. However, before substituting its discretion for that of the Commission, the Board of Referees must find that the Commission ignored a relevant consideration.
Canada (A.G.) v. Dunham, [1996] F.C.J. No. 1271 (F.C.A.) A-708-95
Where the Board of Referees has failed to make such a finding, an Umpire should not interfere with the Board's decision by exercising his or her own discretion and reducing the penalty. Rather, the matter should be referred back to the Board of Referees.
Canada (A.G.) v. Dunham, [1996] F.C.J. No. 1271 (F.C.A.) A-708-95
Where a Board of Referees does not decide either to reduce the amount of a penalty or allow the amount to stand, the Umpire does not have jurisdiction to intervene as there is no "decision or order" that can be reviewed as required in order for an Umpire to have jurisdiction. In these circumstances the Umpire should return the matter to the Board of Referees to determine whether the penalty should be varied.
Canada (A.G.) v. Stark [1997], F.C.J. No. 637 (F.C.A.) A-701-96
Where an Umpire determines that the amount of a penalty imposed by the Commission is improper, he or she must either fix the amount of the penalty or return the matter back to the Board of Referees so that it may set the amount.
Canada (A.G.) v. Nakhle, October 3, 1996 F.C.J. No. 1343 (F.C.A.) A-244-96
Neither a Board of Referees nor an Umpire have jurisdiction to write-off or waive a penalty. Only the Commission possesses such power and the exercise of that power is subject to judicial review in the Federal Court Trial Division.
Canada (A.G.) v. Filiatrault, September 18, 1998 F.C.J. No. 1342 (F.C.A.) A-874-97
Canada (A.G.) v. Idemudia, February 11, 1999 F.C.J. No. 195 (F.C.A.) A-9-98
Canada (A.G.) v. Kaur, 2007 FCA 287 A-372-06
The Board of Referees power to reduce the amount of a penalty where it is satisfied that there are mitigating circumstances does not allow it to reduce the penalty to zero. That amounts to no penalty at all and is a usurpation of the power of the Commission under subsection 38(1) of the Employment Insurance Act.
Canada (A.G.) v. Gauley, [2002] F.C.J. No. 815 (F.C.A.) A-353-01
A Board of Referees or an Umpire are not to be guided by criminal law principles in reviewing a penalty imposed by the Commission pursuant to the Act; namely a claimant's ability to pay.
Canada (A.G.) v. Lai, [1998] F.C.J. No. 1016 (F.C.A.) A-525-97
Turcotte v. Canada (E.I.C.), [1999] F.C.J. No. 311 (F.C.A.) A-186-98
Canada (A.G.) v. Deen, [2003] F.C.J. No. 435 (F.C.A.) A-45-03
Canada (A.G.) v. Gray, [2003] F.C.J. No. 1821 (F.C.A.) A-46-03
Canada (A.G.) v. Schembri, [2003] F.C.J. No. 1809 (F.C.A.) A-578-02
In addition, only the Commission has the jurisdiction to make arrangements for the repayment of a penalty.
Canada (A.G.) v. Pyne, December 15, 1999 F.C.J. No. 2019 (F.C.A.) A-378-98
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2010-05-26