Lauzon v. Canada ( Employment and Immigration Commission )
A-836-97
Décary J.A.
26/6/98
7 pp.
Application for judicial review raising following question: who is responsible for repaying to Receiver General benefit received by claimant following claimant's dismissal, when dismissal found to be wrongful dismissal for which employer required to pay, as compensation, portion of remuneration of which claimant deprived: claimant or employer?-Unemployment Insurance Act, s. 37 providing that wrongfully dismissed claimant who received benefits in respect of weeks for which compensation paid by employer must repay amount of benefits received-In these circumstances, s. 38(1) requiring employer to ascertain from Canada Employment and Immigration Commission (the Commission) and, where applicable, deduct amount of benefits repayable by employee from compensation and remit amount to Receiver General-Employer not deducting amount of benefits nevertheless paid and not remitting amount to Receiver General liable to pay penalty not specified in subsection, but which could very well be repayment of amounts Receiver General lost due to employer's negligence-Breach of employer's obligation not serving to release claimant from obligation under s. 37 to repay what claimant received-In instant case, employer and claimant agreeing on compensation in amount of $8,000 by way of settlement, with no further details-Commission claiming overpayment set at $4,500 from claimant-Claimant objecting on ground employer and not himself responsible for repayment-Umpire concluding as no evidence in record indicating employer deducted amounts, s. 38(2) did not apply and employer not responsible for payment of overpayment-Application for judicial review allowed in part-Inference in instant case claimant reduced claim against employer because claimant knew employer liable to Commission for repayment of overpayment-Impossible to believe employer, duly advised of its legal obligations by Commission and duly informed by employee that employee had deducted amount of overpayment from claim, did not know what it was doing when it settled employee's claim for lower amount-Conclusion applying only to case at bar-Umpire's decision set aside and matter referred back to Umpire with instructions to dismiss claimant's appeal with regard to allocation, but to subtract amount of $2,772 from overpayment which must be repaid by claimant-Unemployment Insurance Act, R.S.C., 1985, c. U-1, ss. 37 (as am. by S.C., 1990, c. 40, s. 27), 38 (as am., idem).