It is proper for the Commission to refer to its own guidelines on the imposition of penalties in order to guarantee some consistency nationally and avoid arbitrariness in such matters.
Canada (A.G.) v. Lai, [1998] F.C.J. No. 1016 (F.C.A.) A-525-97
Canada (A.G.) v. Rumbolt, [2000] F.C.J. No. 1968 (F.C.A.) A-387-99
Canada (A.G.) v. Hudon, [2004] (F.C.A.) 22, A-34-03
Canada (A.G.) v. Gagnon, [2004] F.C.J. No. 1732 (F.C.A.) A-52-04
The Digest of Benefit Entitlement Principles, which contains these guidelines, goes to some lengths to tell the employment insurance agents that the penalty amounts, 100%, 200%, or 300% of the claimant's weekly benefit should not be applied mechanically. On the contrary, it is stated that the Commission must exercise its discretion and consider the particular circumstances of each claimant. It cannot be overemphasized that all extenuating circumstances must be fully documented on the file. This information is essential for providing explanations to the claimant and, especially, for the purposes of an appeal. Although the Commission has the discretion to impose a penalty, it still has to demonstrate that it properly exercised its discretion in light of all relevant considerations.
Canada (A.G.) v. Schembri, [2003] F.C.J. No. 1809 (F.C.A.) A-578-02
Canada (A.G.) v. Gagnon, [2004] F.C.J. No. 1732 (F.C.A.) A-52-04
Financial hardship and the claimant's inability to pay are factors to be taken into consideration in determining the amount of a penalty. However, the same cannot be said of a claimant's willingness to pay.
Canada (A.G.) v. Deen, [2003] F.C.J. No. 435 (F.C.A.) A-45-03
Canada (A.G.) v. Schembri, [2003] F.C.J. No. 1809 (F.C.A.) A-578-02
Rousseau v. Canada (A.G.), 2006 FCA 111 A-251-05
Mitigating circumstances which may be taken into account in reducing a penalty are those circumstances which are present before or at the time the penalty is imposed.
Canada (A.G.) v. Morin, [1997] F.C.J. No. 112 A-681-96
Canada (A.G.) v. Gagnon, [2004] F.C.J. No. 1732 (F.C.A.) A-52-04
Rousseau v. Canada (A.G.), 2006 FCA 111 A-251-05
Canada (A.G.) v. Pawchuk, 2007 FCA 231 A-504-06
Admission of guilty conduct upon being confronted with the offence by the Commission is not, in and of itself, a mitigating factor. To admit that an offence has been committed is not to explain why one has committed it. Since the penalty is a deterrent necessary to protect the employment insurance scheme, it would be too easy for a claimant who has not come forward with an admission to avoid or reduce a penalty simply by co-operating with the Commission once he or she is caught.
Canada (A.G.) v. Pawchuk, 2007 FCA 231 A-504-06
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2010-06-18