EMPLOYMENT INSURANCE |
Canada (Attorney General) v. Gauley
A-353-01
2002 FCA 219, Stone J.A.
15/5/02
7 pp.
Judicial review of Umpire's dismissal of appeal from Board of Referees' decision reducing to zero penalties imposed by Commission pursuant to Employment Insurance Act, s. 38(1)--While receiving benefits respondent worked for two different employers--Commission allocated earnings to period worked, thus creating overpayment of benefits--Total penalties arrived at by doubling amount of each overpayment --Board of Referees holding Commission not taking into account mitigating circumstances, rescinding penalties-- Umpire allowing Board's decision to stand on basis accorded with case law of this Court holding Board possessing power to set aside Commission's decision on quantum of penalty if found relevant considerations ignored--As issue before Umpire involving interpretation of Act (Board's discretionary power under statutory mandate to reduce penalties to zero), appropriate standard of review that of correctness: Black v. Canada (Employment Insurance Commission), [2002] 1 F.C. 468 (C.A.)--S. 38(1) permitting Commission to impose penalty for knowingly failing to declare earnings for period for which claimed benefits--S. 38(2) permitting Commission to set amount--S. 114 setting out powers of Board of Referees i.e. to hear appeal from Commission's decision with respect to claim for benefits under Act--Relatively recent decisions of this Court with respect to imposition of penalty by Commission pursuant to s. 38 clarifying that Board of Referees having jurisdiction to intervene in such discretionary decision and to make decision Commission should have made where Board finding Commission took into account irrelevant consideration or failed to have regard to relevant consideration --Concept of imposing "penalty" in s. 38(1) indicating something more than zero contemplated, as seems intended to permit some degree of monetary punishment--Dictionary definitions of "penalty" considered--"Zero penalty" oxymoron--S. 38(2) referring to "amount"--"Amount" connoting quantity--By reducing monetary penalties to zero, Board of Referees completely nullified exercise of Commission's power under s. 38(1)--Case law only permitting Board to vary quantum of penalty in light of mitigating circumstances--Reduction of penalty to zero amounting to no penalty, and usurps Commission's power-- Application allowed--Employment Insurance Act, S.C. 1996, c. 23, ss. 38, 114.