A-500-01
2002 FCA 423
The Attorney General of Canada (Applicant)
v.
James Norman (Respondent)
Indexed as: Canada (Attorney General) v. Norman (C.A.)
Court of Appeal, Desjardins, Isaac and Malone JJ.A.-- Toronto, October 7; Ottawa, November 5, 2002.
Employment Insurance -- Unemployed person attending school not available for work, therefore not entitled to employment insurance benefits -- Statement to contrary in reporting card false declaration -- Right to natural justice not infringed as result of delay in having appeal from Board of Referee's decision heard by Umpire -- Delay herein not oppressive to point of tainting proceedings -- Actual prejudice caused by delay not of such magnitude that public's sense of decency, fairness affected -- Strong reservations expressed about applying principles developed in human rights context to realm of economic rights.
Administrative Law -- Judicial Review -- Delays -- Employment insurance -- Right to natural justice not infringed as result of delay in having appeal from Board of Referees' decision heard by Umpire -- Delay herein not unacceptable as not to point of being so oppressive as to taint proceedings -- Actual prejudice caused by delay not of such magnitude that public's sense of decency, fairness affected -- Strong reservations expressed about applying principles developed in human rights context to realm of economic rights.
The respondent was enrolled in an adult-education course while receiving employment insurance benefits. In his reporting cards submitted to the Canada Employment Insurance Commission (the Commission) during the claims period in question, he stated that he was not attending school. When the Commission found out, it determined that the respondent was therefore not available for work as required by the Act. As a result, the Commission imposed an indefinite disentitlement to the benefits from September 12, 1995 to January 29, 1996, and advised the respondent that an overpayment in the amount of $3,197 was due. A penalty for knowingly making false or misleading statements in the amount of $1,584 was also imposed. The Board of Referees (the Board) confirmed the Commission's decision. Then, the Umpire confirmed the Board's decision, finding that most, if not all, of the arguments presented before him had b een considered by the Board, which had reviewed the facts extensively and made an assessment of the evidence and of the respondent's credibility. However, the Umpire found that the Commission's failure to serve the respondent with a notice of hearing, or t o communicate with his representative, resulting in a delay of more than 3 years, constituted a denial of natural justice. (It should be noted that a notice of hearing is to be sent out by the Office of the Umpire, not by the Commission.) Accordingly, the Umpire allowed the appeal. This was an application for judicial review of that decision.
Held, the application should be allowed.
The respondent argued that the Commission, the Board and the Umpire ignored the evidence, particularly a job search record that established his availability for work throughout the relevant period. Considering that the Board is "the pivot of the entire system put in place by the Act for the purpose of verifying and interpreting the facts" (Guay v. Canada (Employment and Insurance Commission) ), and the Umpire himself verified these conclusions, there was no reason to interfere. The Court owed deference to the decision of the Umpire on questions of fact, in such circumstances.
The natural justice argument was based on the principles of administrative law and not on the Charter. Whereas the law on the matter has recently been considered by the Supreme Court of Canada in Blencoe v. British Columbia (Human Rights Commission), albeit in the human rights context, the proceedings in the case at bar dealt with economic rights. The respondent did not argue that the delay prejudiced the hearing, but that the mere passage of time has caused him psychological and sociological harms. It was recognized in Blencoe that unacceptable delay might amount to an abuse of process in certain circumstances even where the fairness of the hearing has not been compromised. To meet this threshold, the respondent must demonstrate that the delay was unacceptable to the point of being so oppressive as to taint the proceedings. Several factors may influence whether a delay will be considered inordinate, including a comparison to delays in other jurisdictions. Moreover, the actual prejudice must be of such magnitude that the public's sense of decency and fairness is affected. The Court had strong reservations about applying principles developed in the human rights context in the realm of economic rights. In any event, the respondent did not demonstrate by proof that he was entitled to the remedy he was seeking.
statutes and regulations judicially
considered
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44].
| Employment Insurance Act, S.C. 1996, c. 23, s. 120. |
| Employment Insurance Regulations, SOR/96-332, s. 86(5). |
| Federal Court Act, R.S.C., 1985, c. F-7, ss. 18.1(4)(d) (as enacted by S.C. 1990, c. 8, s. 5), 28(2) (as am. idem, s. 8), 57 (as am. idem, s. 19). |
cases judicially considered
applied:
Guay v. Canada (Employment and Insurance Commission) (1997), 221 N.R. 329 (F.C.A.).
considered:
Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307; (2000), 190 D.L.R. (4th) 513; [2000] 10 W.W.R. 567; 81 B.C.L.R. (3d) 1; 3 C.C.E.L. (3d) 165; 77 C.R.R. (2d) 189; 260 N.R. 1; Canadian Airlines International Ltd. v. Canada (Human Rights Commission), [1996] 1 F.C. 638; 39 Admin. L.R. (2d) 270; 192 N.R. 74 (C.A.).
referred to:
Housen v. Nikolaisen (2002), 211 D.L.R. (4th) 577; [2002] 7 W.W.R. 1; 219 Sask. R. 1; 10 C.C.L.T. (3d) 157; 30 M.P.L.R. (3d) 1; 286 N.R. 1 (S.C.C.); Canada (Attorney General) v. Sveinson, [2002] 2 F.C. 205; (2001), 281 N.R. 341 (C.A.); Budhai v. Canada (Attorney General) (2002), 216 D.L.R. (4th) 594 (F.C.A.).
APPLICATION for judicial review of an Umpire's decision allowing an appeal from a Board of Referees' decision confirming the decision of the Canada Employment Insurance Commission disentitling the respondent to the employment benefits for a certain period, requesting payment of overpaid benefits and imposing a penalty for knowingly making false or misleading statements. Application allowed.
appearances:
James E. R. Gray for applicant.
Marko Pasic for respondent.
solicitors of record:
Deputy Attorney General of Canada for applicant.
Marko Pasic, London, Ontario, for respondent.
The following are the reasons for judgment rendered in English by
Desjardins J.A.:
INTRODUCTION
[1]This is an application for judicial review of an Umpire's decision dated July 23, 2001, under the Employment Insurance Act , S.C. 1996, c. 23 (the Act). The Umpire's decision, dated July 23, 2001, allowed the appeal filed by James Norman (the respondent), a gainst the decision of the Board of Referees (the Board).
ISSUES
[2]Two issues are raised in this appeal. First, whether the Umpire erred in his findings of fact by ignoring evidence which the respondent adduced. Second, whether the Umpire erred in law in finding that the respondent's right to natural justice was infringed because of the lengthy delay in hearing his appeal.
STANDARD OF REVIEW
[3]With respect to the first issue, that is to say, the treatment of evidence and the findings of law by the Umpire, the standard of review is deferential. This Court may interfere with the Umpire's findings of fact only if they are erroneous findings made in a perverse or capricious manner, or without regard for the material before the U mpire (see: paragraph 18.1(4)(d) [as enacted by S.C. 1990, c. 8. s. 5] and subsection 28(2) [as am. idem, s. 8] of the Federal Court Act, R.S.C., 1985, c. F-7). In my opinion this is similar to the standard of "palpable and overriding error" or "clearly wr ong" recently articulated by the Supreme Court of Canada in Housen v. Nikolaisen (2002), 211 D.L.R. (4th) 577 (S.C.C.).
[4]With respect to the second issue, whether the Umpire erred in his conclusion that the respondent's right to natural ju stice was infringed because of a delay, it is my opinion that the Umpire's conclusion is one of law and is to be reviewed on a standard of correctness. See Housen v. Nikolaisen , supra; Canada (Attorney General) v. Sveinson, [2002] 2 F.C. 205 (C.A.) (Sveinson).
ANALYSIS
[5]The respondent filed a claim for employment insurance benefits on August 24, 1995, indicating that he had worked 40 hours a week for Canadian Tire as a member of the warehouse crew. On November 11, 1995, the Canada Employment Insurance Commission (the Commission) was advised that the respondent had been enrolled in an adult-education course since September 1995. The respondent submitted eight reporting cards to the Commission during the claims period in question stating that he was not attending school.
[6]The Commission determined that because the respondent was attending school, he was not available for work as required by the Act. As a result, the Commission imposed on the respondent an indefinite disentitlement to the benefits from September 12, 1995, to January 29, 1996, and advised him that an overpayment was due in the amount of $3,197. A penalty for knowingly making false or misleading statements was also imposed in the amount of $1,584.
[7]The Board confirmed the decision of the Commission. The respondent appealed the Board's decision to the Umpire. Subsequently, the respondent's representative appeared before the Umpire and argued that his client had demonstr ated his availability for work and had not knowingly made false declarations. The Umpire, however, confirmed the decision of the Board. He found that most, if not all, of the arguments presented before him had been considered by the Board which had reviewed the facts extensively and made an assessment of the evidence and of the respondent's credibility. The Umpire wrote the following at page 2 of his reasons:
Counsel for the Claimant argued at length that his client had demonstrated his availability and had not knowingly made false declarations. I have compared my notes of his arguments and submissions with the Board's decision and find that most, if not all, that was presented to me had been considered by the Board members in their decision which includes an extensive review of the facts and a well supported decision of their assessment of the evidence and of the claimant's credibility based on the record.
[8]The respondent now argues before this Court that the Commission, the Board and the Umpire ignored evidence, particularly a job research record which established his availability for work throughout the relevant period. However, this evidence was rejected by the Board. The Board stated that it gave more weight to the respondent's earlier v erbal and signed statements which indicated that his primary intention was to devote himself to his course rather than to look for work. There was ample evidence to support this conclusion, including a statement made by the respondent during an interview on January 23, 1996, where he is quoted as saying: "no I haven't looked for work since school started".
[9]Considering that the Board is "the pivot of the entire system put in place by the Act for the purpose of verifying and interpreting the facts" (per Marceau J.A., in Guay v. Canada (Employment and Insurance Commission) (1997), 221 N.R. 329 (F.C.A.), at paragraph 2, and that the Umpire himself verified these conclusions, I find no reason to interfere. In my opinion, this Court owes deference to the decision of the Umpire on questions of fact, in circumstances like those present in this case (see: Budhai v. Canada (Attorney General) (2002), 216 D.L.R. (4th) 594 (F.C.A.)).
[10]The Umpire then dealt with a second issue raised by the respondent, that is whether his right to natural justice was infringed by the lengthy delay in having his appeal heard. The respondent contends that this delay arose as a result of the Commission's failure to serve him with a notice of hearing the first time the matter came before an Umpire in February 1998.
[11]The events relevant to this delay began when the respondent appealed the decision of the Board by filing his notice of appeal on January 9, 1997. In the notice of appeal he indicated that he had a representative, Marko Pasic, and provided Mr. Pasic's mailing address. On February 7, 1997, the Commission sent a letter to Mr. Pasic advising him that it had forwarded the notice of appeal to the Umpire's office and that "the Registrar of the Umpire's office will write to you directly regarding the date of the hearing".
[12]A notice of hearing sent to the respondent on September 12, 1997, by the Office of the Umpire, was returned "unclaimed" on October 21, 1997. A second notice of hearing was later sent to the respondent. The appeal was finally heard by an Umpire on December 5, 1997, in the absence of the respondent or his representative. The Umpire dismissed the appeal as abandoned in an order dated February 24, 1998.
[13]On June 1, 1999, the respondent applied for reconsideration under section 120 of the Act, stating that he had not received the notices of hearing and that his rights had been violated. On March 8, 2000, the Umpire granted a new hearing. However, on April 25, 2000, the respondent's representative requested an adjournment of the hearing in order to comply with the notice requirements set out i n section 57 [as am. by S.C. 1990, c. 8, s. 19] of the Federal Court Act because he was considering raising a challenge under the Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, appendix II, No. 44]] (the Charter). On October 31, 2000, the Chief Umpire Designate ordered the matter restored to the hearing list so that it might be heard at the next available sitting.
[14]The hearing was then scheduled to be held by videoconference on February 22, 2001, in Sarnia, Ontario. The respondent's representative requested an adjournment to the next available hearing date in London, Ontario, to avoid costly travel time. The hearing was finally heard by the Umpire on May 25, 2001, in London, with the respondent and his representative present.
[15]With respect to the respondent's "natural justice" argument, the Umpire reached the following conclusion at pages 3 to 4 of his reasons :
The Commission was aware that the claimant was represented and had had communications with his counsel. They had advised him that he would be notified of the place and date of hearing. When the Commission's efforts to serve the claimant failed, they sho uld have communicated with his counsel, especially since they had stated they would do so. Their failure to do so has prevented the claimant from having an opportunity to participate in his appeal for more than 3 years. Such a delay, caused by the Commission's negligence, I find does constitute a denial of natural justice.
The claimant's appeal is accordingly allowed. The Board's decision is rescinded and replaced by my decision that the claimant's appeal of the Commission's decision is allowed. The matter will be returned to the Commission for a determination of the claimant's benefits. [My emphasis.]
[16]It should be noted at the outset that a notice of hearing is to be sent out by the Office of the Umpire, not by the Commission (subsection 86(5) of Employment Insurance Regulations, SOR/96-332). Therefore, the responsibility for the delay of close to three years, from the time the Commission sent the February 7, 1997 letter to the respondent, until March 8, 2000, when a new hearing was granted, cannot be imputed to the Commission, unless, as the respondent claims, the Commission was responsible for alerting the Office of the Umpire that the respondent had representation, a matter on which I express no opinion.
[17]The Umpire did not state the legal principle upon which he concluded that there was a denial of natural justice. However, the respondent informed us at the hearing that he rests his case on the principles of administrative law and not on the Charter.
[18]The questions to be determined, therefore, are whether the delay caused by the Office of the Umpire amounts to a denial of natural justice and whether a grant of employment benefits to the respondent is the proper remedy.
[19]The law on the matter has recently been considered by the Supreme Court of Canada in Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307, albeit in the human rights context. The proceedings in the case at bar deal with economic rights and not human rights. However, the analysis of Bastarache J. in Blencoe reveals some interesting considerations.
[20]Bastarache J., writing for a majority of the Court, considered the remedies available in administrative law to a party who claims unreasonable delay in human rights proceedings.
[21]He states that delay, without more, will not constitute an abuse of process that warrants a stay of proceedings at common law. Staying proceedings for the mere passage of time, he writes, would be tantamount to imposing a judicially-created limitation period. To justify a stay in the administrative law context, he says, proof that significant prejudice has resulted from an unacceptable delay is required. A breach of natural justice and the duty of fairness may occur when the delay impairs a party's ability to answer the complaints against him or her because, for example, memories have faded, essential witnesses have died, or evidence has been lost. In short, the undue delay must impair the fairness of the hearing.
[22]The respondent, in the case at bar, has not pleaded or argued that the delay prejudiced the hearing. Rather, he claims that the mere passage of time has caused him psychological and sociological harms.
[23]In this regard, Bastarache J. notes that this issue is a difficult one on which there is no clear authority [at paragraph 107]:
The respondent contends that the delay in the human rights proceedings constitutes a breach of procedural fairness amounting to a denial of natural justice and resulting in an abuse of process. The question is whether one can look to the psychological and sociological harm caused by the delay rather than merely to the procedural or legal effect, namely, whether the ability to make full answer and defence has been compromised, to determine whether there has been a denial of natural justice. This issue is a difficult one and there is no clear authority in this area. [My emphasis.]
[24]He explains that where the Charter has been held not to apply, most courts and tribunals have not decided whether the stress and stigma resulting from an unacceptable delay can be so significant as to amount to an abuse of process. When, however, courts have dealt with this issue, they have most often adopted a narrow approach to the principles of natural justice. For example, in Canadian Airlines International Ltd. v. Canada (Human Rights Commission), [1996] 1 F.C. 638 (C.A.) the Federal Court of Appeal concluded at page 641 that the law will only remedy a situation where the prejudice is such "as to deprive a party of his right to a full and complete defence".
[25]In Blencoe, supra, Bastarache J. recognized that if inordinate delays cause significant psychological harm to a person, or attach a stigma to a person's reputation, such that the human rights system would be brought into disrepute, the prejudice may be sufficient to constitute an abuse of process. With respect to that point he states [at paragraph 115]:
I would be prepared to recognize that unacceptable delay may amount to an abuse of process in certain circumstances even where the fairness of the hearing has not been compromised. Where inordinate delay has directly caused significant psychological harm to a person, or attached a stigma to a person's reputation, such that the human rights system would be brought into disrepute, such prejudice may be sufficient to constitute an abuse of process. The doctrine of abuse of process is not limi ted to acts giving rise to an unfair hearing; there may be cases of abuse of process for other than evidentiary reasons brought about by delay. It must however be emphasized that few lengthy delays will meet this threshold. I caution that in cases where there is no prejudice to hearing fairness, the delay must be clearly unacceptable and have directly caused a significant prejudice to amount to an abuse of process. It must be a delay that would, in the circumstances of the case, bring the human rights system into disrepute. The difficult question before us is in deciding what is an "unacceptable delay" that amounts to an abuse of process.
[26]To meet this threshold, the respondent must demonstrate that the delay was unacceptable to the point of being so oppressive as to taint the proceedings. The determination of whether a delay has become inordinate depends on the nature of the case and its complexity, the facts and issues, the purpose and nature of the proceedings, whether the respondent contributed to the delay or waived the delay, and other circumstances of the case.
[27]Furthermore, a comparison with other jurisdictions in the matter is also in order as noted by Bastarache J. [at paragraph 129]:
In Kodellas, supra, the Saskatchewan Court of Appeal held that the determination of whether the delay is unreasonable is, in part, a comparative one whereby one can compare the length of delay in the case at bar with the length of time normally taken for processing in the same jurisdiction and in other jurisdictions in Canada.
[28]Moreover, the actual prejudice caused by the delay must be of such magnitude that the public's sense of decency and fairness is affected. At paragraph 133, Bastarache J. states:
There must be more than merely a lengthy delay for an abuse of process; the delay must have caused actual prejudice of such magnitude that the public's sense of decency and fairness is affected.
[29]I have strong reservations about applying principles developed in the human rights context to the realm of economic rights. In any event, the respondent has not demonstrated by proof that he is entitled to the remedy he is seeking.
[30]I conclude that there is no evidence which would justify a remedy under the principles of administrative law.
[31]In view of my conclusion on this second issue, I would allow this application for judicial review with costs, I would set aside, in part, the decision of the Umpire and I would refer the matter back to the Chief Umpire or his delegate for a redetermination on the basis that the respondent is not entitled to employment benefits.
Isaac J.A.: I agree.
Malone J.A.: I agree.