EMPLOYMENT INSURANCE |
Canada (Attorney General) v. Deen
A-45-03
2003 FCA 435, Malone J.A.
20/11/03
8 pp.
Judicial review regarding relevant factors to be applied by Canada Employment Insurance Commission (Commission) in imposing penalty under Employment Insurance Act (Act), s. 38(2)--Two issues to be resolved--First issue regarding scope of inquiry conducted by Commission in determining relevant factors to be considered in fixing penalty in individual case and second, whether Commission can use criminal law principles used by judges in setting fines upon conviction of Criminal Code offence--Umpire's jurisdiction to alter Board's review of discretionary decision of Commission as to amount of penalty under s. 38(2) limited--Nothing in s. 38 or scheme of Act suggesting any responsibility on Commission to conduct extensive inquiry of its own initiative as to relevant factors in initial fixing of penalty--Commission entitled to test apparent discrepancies by seeking timely information and should afford claimants timely opportunity to present relevant information--In absence of response, Commission entitled to make its penalty assessment on existing record--In case at bar, Umpire found in fixing amount of penalty, Commission should take guidance from criminal law principles relating to fixing of fines under Criminal Code or other federal statutes--Principles from criminal law system should not Be randomly imported into administrative guidelines used in Commission's deliberations lest its discretion to set penalties be fettered--Penalties under employment insurance scheme viewed not as sanctions involving criminal record but as deterrents supporting voluntary and truthful declarations required from claimants--Hardship and ability to pay factor Commission must take into account in fixing penalty, but onus on claimant to put relevant facts before Commission--Here, evidence in record before Umpire that Commission had already reduced penalty in response to further information provided about respondent's financial circumstances--This evidence apparently overlooked by Umpire, constituting reviewable error--Judicial review allowed--Employment Insurance Act, S.C. 1996, c. 23, s. 38(2).