Judgments

[2013] 1 F.C.R. 143

A-53-10

2011 FCA 153

Zack Steel (Applicant)

v.

The Attorney General of Canada (Respondent)

Indexed as: Steel v. Canada (Attorney General)

Federal Court of Appeal, Dawson, Layden-Stevenson and Stratas JJ.A.—Toronto, December 14, 2010; Ottawa, May 5, 2011.

Employment Insurance — Judicial review of Umpire’s decision confirming Board of Referees’ decision applicant’s income replacement benefits correctly allocated as earnings pursuant to Employment Insurance Regulations, s. 35(2)(d) –– Applicant applying for regular employment insurance benefits after leaving employment — Later involved in car accident — Commission determining that income replacement benefits applicant receiving from motor vehicle insurer constituting earnings, transforming applicant’s claim into sickness benefits claim — Also determining that applicant owing Commission amount in overpayments — Whether Commission making any decision in respect of applicant’s write-off request on account of benefits overpayment; whether Umpire erring by affirming Commission’s calculation of overpayment amount — Commission neither considering nor refusing to consider write-off request — No indication applicant providing information to Commission detailing basis of any write-off request — Umpire not erring by concluding that income replacement benefits falling within definition of earnings pursuant to Regulations, s. 35(2)(d) but erring by affirming Commission’s quantification of overpayment given Commission’s concessions made before Umpire –– Application allowed in part.

Federal Court of Appeal Jurisdiction –– Per Stratas J.A. (concurring): Federal Court of Appeal having jurisdiction to determine merits of applicant’s judicial review application — Whether applicant “other person” under Employment Insurance Act, ss. 114(1), 115, allowing him to appeal to Board of Referees, Umpire, then apply to Federal Court of Appeal for judicial review under Act, s. 118 — During 1996 statutory reform, Parliament’s decision to add words “other person” to Act, ss. 114(1), 115 intended to allow persons, such as applicant, to appeal rulings on write-off requests to Board of Referees, Umpire, then to Federal Court of Appeal — Therefore, applicant considered “other person”, could apply for judicial review under Act, s. 118 to Federal Court of Appeal following appeals to Board, Umpire.

This was an application for judicial review of an Umpire’s decision confirming the Board of Referees’ decision, in particular, that the applicant’s income replacement benefits had been correctly allocated as earnings pursuant to paragraph 35(2)(d) of the Employment Insurance Regulations and that the applicant was not entitled to more than 15 weeks of sickness benefits, the maximum entitlement to such benefits.

The applicant left his employment and applied for regular employment insurance benefits under the Employment Insurance Act. His claim was established effective July 29, 2007. In December 2007, he was involved in a car accident. In May 2008, the applicant received a lump sum payment of $8 642.92 from his motor vehicle insurer as income replacement benefits. The Commission determined that the income replacement benefits he had received constituted earnings and transformed the applicant’s claim into a claim for sickness benefits, thereby limiting the applicant’s claim to a maximum period of 15 weeks. It was also determined that since the applicant had received income replacement benefits, he owed the Commission $9 115 in overpayments. The applicant appealed the Commission’s decision to the Board, which confirmed the Commission’s decision. On appeal before the Umpire, the Commission conceded that it had erred in converting the applicant’s claim to sickness benefits and in denying the applicant sickness benefits as of March 2008. The Commission’s concessions reduced the amount of the alleged overpayment to $6 146. Nonetheless, the Umpire never addressed the Commission’s concessions in its decision.

The issues were whether the Commission made any decision in respect of a request to write off monies owing by the applicant on account of an overpayment of benefits; whether the Umpire erred by affirming the Commission’s calculation of the amount of the overpayment of benefits; and whether the Federal Court of Appeal had jurisdiction to hear the merits of the applicant’s case.

Held, the application should be allowed in part.

Per Dawson J.A. (Layden-Stevenson J.A. concurring): The Commission neither considered nor refused to consider a request for a write-off. There was no indication that the applicant provided information to the Commission detailing the basis of any request for a write-off nor was there any information in the record about the collectibility of any overpayment or the hardship that would result if an overpayment was collected. The absence of the latter information was significant because those are the grounds for relief set out in paragraph 56(1)(f) of the Regulations, which was the only write-off provision therein that potentially applied to the applicant. There was no evidence in the record that the Commission at any time considered a request to write off any overpayment. In the absence of a decision, there was no basis upon which the Board or the Umpire could decide the issues the applicant wanted to raise concerning a write-off of his indebtedness. The applicant was not a “person who is the subject of a decision of the Commission” who may appeal from the decision to the Board. Nor was there a decision that could be judicially reviewed in the Federal Court.

The Umpire did not err by concluding that the income replacement benefits fell within the definition of earnings pursuant to paragraph 35(2)(d) of the Regulations. On the basis of the plain language of the relevant provisions of the Ontario Regulations pertaining to accident benefits, the income replacement benefits are paid “in respect of the actual or presumed loss of income from employment due to injury” and therefore fall within the scope of paragraph 35(2)(d) of the Regulations. This construction was consistent with the evidence before the Umpire to the effect that the benefits claim was partially based on information from the applicant’s former employer.

Given the Commission’s concessions, the Umpire erred by affirming the Commission’s quantification of the overpayment. The overpayment should have been reduced to $6 146.

Per Stratas J.A. (concurring): The Federal Court of Appeal had jurisdiction to determine the merits of the applicant’s judicial review application. What had to be determined was whether the applicant was an “other person” under subsection 114(1) and section 115 of the Act, which would allow him to appeal to the Board of Referees and the Umpire and then apply to the Federal Court of Appeal for judicial review under section 118 of the Act. At the time of the 1996 statutory reform, Parliament’s decision to add the words “other person” to subsection 114(1) and section 115 of the current Act was intended to allow persons, such as the applicant, to appeal rulings on write-off requests to the Board of Referees and the Umpire and then to proceed to the Federal Court of Appeal. Were it not so, it would be very difficult to see what Parliament had in mind when it added those words. Therefore, the applicant was an “other person” under subsection 114(1) and section 115 and could appeal to the Board of Referees and the Umpire and, under section 118, could apply for judicial review to the Federal Court of Appeal.

STATUTES AND REGULATIONS CITED

Employment Insurance Act, S.C. 1996, c. 23, ss. 19(2), 45, 52(2), (3), 54(k), 114(1), 115, 118 (as am. by S.C. 2002, c. 8, s. 182), 120.

Employment Insurance Regulations, SOR/96-332, ss. 35 (as am. by SOR/97-31, s. 18; 2002-154, s. 5; 2002-364, s. 1; 2010-10, s. 15), 36 (as am. by SOR/97-31, s. 19; 2009-130, ss. 1, 3; 2010-10, s. 16), 56(1) (as am. by SOR/2002-236, s. 2).

Federal Courts Act, R.S.C., 1985, c. F-7, ss. 1 (as am. by S.C. 2002, c. 8, s. 14), 18 (as am. by S.C. 1990, c. 8, s. 4; 2002, c. 8, s. 26), 18.1 (as enacted by S.C. 1990, c. 8, s. 5; 2002, c. 8, s. 27).

Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, O. Reg. 403/96, ss. 1 (as am. by O. Reg. 462/96, s. 2), 4 (as am. by O. Reg. 458/03, s. 2), 5 (as am. by O. Reg. 295/07, s. 2), 6.

Unemployment Insurance Act, R.S.C., 1985, c. U-1, s. 79(1), 80.

Unemployment Insurance Act, 1971, S.C. 1970-71-72, c. 48, s. 94(1).

CASES CITED

considered:

Cornish-Hardy v. Board of Referees (Unemployment Insurance Act, 1971), [1979] 2 F.C. 437 (C.A.), affd [1980] 1 S.C.R. 1218; Canada (Attorney General) v. Filiatrault, 1998 CanLII 8522, 99 CLLC 240-001, 235 N.R. 274 (F.C.A.); Gall v. Canada, [1995] 2 F.C. 413, (1995), 122 D.L.R. (4th) 399, 9 C.C.E.L. (2d) 38 (C.A.); Buffone v. Canada (Minister of Human Resources Development), 2001 CanLII 22143 (F.C.A.); Canada (Attorney General) v. Mosher, 2002 FCA 355; Canada (Attorney General) v. Villeneuve, 2005 FCA 440, 352 N.R. 60.

referred to:

Braga v. Canada (Attorney General), 2009 FCA 167, 392 N.R. 295; Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, (1989), 57 D.L.R. (4th) 231, [1989] 3 W.W.R. 97; Canadian Council of Churches v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 236, (1992), 88 D.L.R. (4th) 193, 2 Admin. L.R. (2d) 229; Gill v. Canada (Attorney General), 2010 FCA 182, [2011] 4 F.C.R. 159, 322 D.L.R. (4th) 120, [2010] CLLC 240-009; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, 212 D.L.R. (4th) 1, [2002] 5 W.W.R. 1; Chrysler Canada Ltd. v. Canada (Competition Tribunal), [1992] 2 S.C.R. 394, (1992), 92 D.L.R. (4th) 609, 12 Admin. L.R. (2d) 1.

  APPLICATION for judicial review of an Umpire’s decision ((2009), CUB 73803) confirming the Board of Referees’ decision, inter alia, that the applicant’s income replacement benefits had been correctly allocated as earnings pursuant to paragraph 35(2)(d) of the Employment Insurance Regulations. Application allowed in part.

APPEARANCES

Christopher Perri and Stephen J. Moreau for applicant.

Derek Edwards for respondent

SOLICITORS OF RECORD

Cavalluzzo Hayes Shilton McIntyre & Cornish LLP, Toronto, for applicant.

Deputy Attorney General of Canada for respondent.

  The following are the reasons for judgment rendered in English by

[1]        Dawson J.A.: A person in receipt of benefits under the Employment Insurance Act, S.C. 1996, c. 23 (Act) may also receive monies that are determined to be earnings. If a claimant receives benefits and earnings for the same period of time, the claimant is obliged to repay to the Receiver General any overpayment of benefits that results from the receipt of earnings. The amount to be repaid is equal to the amount of the benefits that would not have been paid if the earnings had been paid or payable at the time the benefits were paid (section 45 of the Act).

[2]        Paragraph 54(k) of the Act authorizes the Commission to make regulations allowing it to write off amounts owing under various sections of the Act, including monies owing under section 45 as a result of the overpayment of benefits. Subsection 56(1) [as am. by SOR/2002-236, s. 2] of the Employment Insurance Regulations, SOR/96-332 (Regulations) allows overpayments owing under section 45 of the Act to be written off in a number of circumstances including where:

56. (1) …

(f) the Commission considers that, having regard to all the circumstances,

(i) the penalty or amount, or the interest accrued on it, is uncollectable, or

(ii) the repayment of the penalty or amount, or the interest accrued on it, would result in undue hardship to the debtor. [Emphasis added.]

[3]        A line of jurisprudence from this Court, commencing with Cornish-Hardy v. Board of Referees (Unemployment Insurance Act, 1971), [1979] 2 F.C. 437 (C.A.), affd [1980] 1 S.C.R. 1218 and Canada (Attorney General) v. Filiatrault, 1998 CanLII 8522, 99 CLLC 240-001 (F.C.A.) has consistently held that decisions of the Commissioner with respect to write-offs are not subject to the appeal provisions in the Act. A claimant must therefore seek judicial review of such decisions in what is now the Federal Court.

[4]        In Cornish-Hardy the relevant provision with respect to the right of appeal was subsection 94(1) of the Unemployment Insurance Act, 1971, S.C. 1970-71-72, c. 48, which, by the time of Filiatrault, had become subsection 79(1) of the Unemployment Insurance Act, R.S.C., 1985, c. U-1. This provision gave a right of appeal to a “claimant or an employer”.

[5]        In 1996, Parliament amended the Unemployment Insurance Act. Its title became the Employment Insurance Act. The appeal provisions were placed in subsection 114(1) of the Act which provided that a “claimant or other person who is the subject of a decision of the Commission” might appeal to the Board of Referees (Board).

[6]        Zack Steel, the applicant, brings this application for judicial review of a decision of an Umpire ([Employment Insurance Act (Re)] (2009), CUB 73803) who was seized with Mr. Steel’s appeal from a decision of the Board. On this application Mr. Steel wishes to argue that a claimant, such as himself, who has been refused a write-off by the Commission is a person who is “the subject of a decision of the Commission” and so is entitled to appeal the refusal of a write-off to the Board. He states that all of the decisions of this Court subsequent to the 1996 amendment of the Act which have followed Cornish-Hardy and Filiatrault were made per incurium because the Court’s attention was not called to the change in wording of the appeal provision. Specifically, Mr. Steel asks the Court to quash the decisions of the Commission, the Board, and the Umpire and order that costs be paid to him because:

1. The Umpire failed to exercise his jurisdiction to determine whether the Commission had properly exercised its discretion to write off overpayments of benefits paid to Mr. Steel.

2. The Umpire failed to find that the Commission improperly exercised its discretion to write off amounts because the Commission failed to provide reasons concerning Mr. Steel’s request for a write-off and failed to respond at all to his request.

3. The Umpire failed to find that the Commission’s calculation of the overpayment was incorrect and inconsistent with the Act and the Regulations.

The sections of the Act and the Regulations referred to in these reasons are set out in the Appendix to these reasons.

[7]        I will first review the facts before the Court before framing the issues that I believe must be decided.

The Facts

[8]        Mr. Steel left his employment and applied for regular employment insurance benefits under the Act. After some initial difficulties, his claim was established effective July 29, 2007. On December 2, 2007, Mr. Steel was involved in a car accident. Around May 28, 2008, Mr. Steel received a lump sum payment of $8 642.92 from his motor vehicle insurer in respect of income replacement benefits. On July 31, 2008, Mr. Steel disclosed the receipt of these income replacement benefits to the Commission.

[9]        Shortly thereafter, Mr. Steel was informed by a representative of the Commission that it might be necessary to reassess his claim. Mr. Steel claims that he responded that he should be entitled to a write-off of any amounts he owed to the Commission because, for a variety of reasons, he had experienced significant delay in receiving his employment insurance benefits.

[10]      The Commission subsequently determined that the income replacement benefits Mr. Steel had received constituted earnings, and allocated these monies to the period commencing on December 9, 2007 and ending on June 7, 2008. On its own motion, the Commission then transformed Mr. Steel’s claim into a claim for sickness benefits and informed him that he would be paid the maximum 15 weeks of special benefits on account of sickness. The rationale for this change was that Mr. Steel had indicated in his reports to the Commission that he would not be able and available to return to perform the same work under the same conditions. The effect of this transformation was to limit Mr. Steel’s claim to a maximum period of 15 weeks. Finally, the Commission determined that as a result of receiving the income replacement benefits Mr. Steel had been overpaid benefits and he owed the Commission $9 115. Two notices of debt were issued to Mr. Steel for the combined sum of $9 115 in August 2008.

[11]      Mr. Steel says that after receiving the notices of debt he spoke with a representative of the Commission and expressed concern about the calculation of the amount of overpayment. He asserts he also informed the representative that he should be entitled to a write-off. He claims that he did not receive a satisfactory response from the Commission concerning his request for a write-off and that it failed to provide him with any explanation as to why his request for a write-off was rejected.

[12]      On August 22, 2008, Mr. Steel filed a notice of appeal to the Board. In the notice of appeal Mr. Steel complained that the amount of overpayment had never been properly determined because he was still owed money for his regular benefits. Mr. Steel stated that the overpayment was unforeseeable and occurred due to administrative error and a “lag in co-operation with legal proceedings”. No reference is made in the notice of appeal to any request for a write-off having been made.

[13]      At the appeal, after characterizing the issues before it, the Board found that:

1. The Commission had correctly allocated the income replacement benefits as earnings. The Commissioner’s interpretation was supported by sections 35 [as am. by SOR/97-31, s. 18; 2002-154, s. 5; 2002-364, s. 1; 2010-10, s. 15] and 36 [as am. by SOR/97-31, s. 19; 2009-130, ss. 1, 3; 2010-10, s. 16] of the Regulations.

2. Mr. Steel had received 15 weeks of sickness benefits and was not entitled to additional sickness benefits in the qualifying period at issue.

3. Neither the Board, nor an Umpire, were empowered to deal with issues relating to the write-off of an overpayment.

[14]      Mr. Steel appealed the decision of the Board to an Umpire.

The Decision of the Umpire

[15]      The Commission made two concessions before the Umpire. They were:

1. The Commission erred when it converted Mr. Steel’s claim to sickness benefits as of December 2, 2007.

2. The Commission erred when it denied sickness benefits as of March 31, 2008.

[16]      The consequence of these errors was that Mr. Steel was entitled to regular benefits at the time his claim was in effect and so he was not subject to having his claim end when the 15-week maximum period for sickness benefits expired. The monetary effect of the Commission’s concessions was to reduce the amount of the asserted overpayment to $6 146.

[17]      In his brief reasons the Umpire confirmed that the income replacement benefits were properly allocated to income pursuant to paragraph 35(2)(d) of the Regulations and that Mr. Steel was not entitled to more than 15 weeks of sickness benefits because that is the maximum entitlement to such benefits. The record does not explain why the Umpire had no regard to the Commission’s concessions, including its concession that the claim should not have been converted to a claim for sickness benefits.

The Issues to be Decided

[18]      In my view, the issues to be decided are:

1. Did the Commission make any decision in respect of a request to write off monies owing by Mr. Steel on account of an overpayment of benefits?

2. If so:

a. Did the Board and the Umpire err by failing to review the Commission’s decision?

b. Did the Commission breach Mr. Steel’s right to procedural fairness by failing to provide reasons or respond to his request for a write-off?

3. Did the Umpire err by affirming the Commission’s calculation of the amount of the overpayment of benefits?

4. What is an appropriate award of costs?

Consideration of the Issues

a. Did the Commission make any decision in respect of a request to write off monies owing by Mr. Steel on account of an overpayment of benefits?

[19]      As referenced above, subsection 114(1) of the Act allows a person “who is the subject of a decision of the Commission” to appeal to the Board. In the words of subsection 114(1):

Appeal to board of referees

114. (1) A claimant or other person who is the subject of a decision of the Commission, or the employer of the claimant, may appeal to the board of referees in the prescribed manner at any time within (a) 30 days after the day on which a decision is communicated to them; or (b) such further time as the Commission may in any particular case for special reasons allow. [Emphasis added.]

[20]      It follows that, irrespective of the legal argument Mr. Steel wishes to advance concerning a requested write-off, he must establish that either the Commission refused a request to write off a debt, or it refused to consider a request for a write-off. In the absence of either a refusal or a refusal to consider by the Commission, Mr. Steel could not pursue the write-off issue at all because he would not be a “person who is the subject of a decision of the Commission”. As will be explained below, the Commission in this case neither considered nor refused to consider a request for a write-off.

[21]      It is indisputable that any request for a write-off must, in the first instance, be made to the Commission. Whether the Commission made a decision about a write-off request is an issue that was not considered by either the Board or the Umpire. The Board simply relied upon the prior jurisprudence of this Court to dismiss Mr. Steel’s appeal. The Umpire was silent on the issue of a write-off. Notwithstanding that this issue was not considered below, given the opposing views of the parties in this respect, we must first be satisfied that the Commission rendered a decision on Mr. Steel’s request for a write-off. Resolution of this issue requires a review of Mr. Steel’s affidavit and the whole of the appeal docket.

[22]      Mr. Steel swears in his affidavit that he requested a write-off in three telephone conversations. Each telephone conversation he references in his affidavit appears to be memorialized in a document called an “AppliMessage” prepared by a Service Canada employee. In each relevant AppliMessage a Service Canada employee purports to summarize the information received by telephone from Mr. Steel. Mr. Steel has raised no complaint about the accuracy or the completeness of the relevant AppliMessages.

[23]      Mr. Steel states that he spoke to a representative of the Commission after making his voluntary disclosure. The first AppliMessage is in respect of a telephone conversation with Mr. Steel on August 13, 2008. Mr. Steel is said to raise an issue with respect to the conversion of his claim for regular benefits to a claim for sickness benefits. No reference is made to a request for a write-off of an overpayment.

[24]      Mr. Steel states that the second telephone conversation occurred after he received the two notices of debt. This appears to correspond with the second AppliMessage prepared in respect of a conversation with Mr. Steel on August 22, 2008. Mr. Steel is reported to have requested an explanation of the overpayment and to have expressed concern about the requirement to repay monies within a specified period. No reference is made to a request for a write-off.

[25]      Mr. Steel states his third request was made on September 3, 2008. An AppliMessage exists for a call made on that day. This message does make reference to the issue of a write-off. The text of the message is as follows:

Mr. Steel said:

He is interested in having the overpayment written off because the error is not his.

I said the overpayment is a result of allocation, and of the change in claim type, not an error, but even if there were an error, he would be expected to return any moneys he is not entitled to.

He said that he never asked for sickness benefits, and was not sick, but had to do modified work, and that the insurance company paid him on those terms after he was injured coming out of a car.

I said:

He should ask the doctor for a letter giving his status, letting us know what his limitations were during the claim, what dates he was unable to work, and what date he became able to work, and we can reconsider his file.

He said he may discuss it with his lawyer, and I gave him my phone number and fax number.

[26]      This is the sole evidence Mr. Steel points to in the appeal docket which documents any reference to a request for a write-off of an overpayment. The AppliMessage refers only to an expression of interest on Mr. Steel’s part.

[27]      Nowhere in the record is there any indication that Mr. Steel provided information to the Commission detailing the basis of any request for a write-off, nor is there any information in the record about the collectibility of any overpayment or the hardship that would result if an overpayment was collected. The absence of the latter information is significant because those are the grounds for relief set out in paragraph 56(1)(f) of the Regulations, which is the only write-off provision in the Regulations potentially applicable to Mr. Steel.

[28]      There is no evidence in the record that the Commission at any time considered a request to write off any overpayment.

[29]      I am satisfied on the basis of the unchallenged content of the AppliMessages that Mr. Steel never actually requested a decision from the Commission concerning a write-off. At best, on September 3, 2008, he expressed interest in receiving a write-off because any overpayment was the result of someone else’s error. In consequence, the Commission never made any decision about whether any overpayment should be written off nor did it refuse to make a decision it was asked to make. In his memorandum of fact and law at paragraph 56 counsel for Mr. Steel argued that “the lack of any communication from the Commission at all leads one to infer that no decision was made at all: Mr. Steel’s request was ignored or forgotten”. While in oral argument counsel referred to this as an “imprudent” statement, I believe, in the circumstances, it is a fair inference from the Commission’s silence that no decision was made by the Commission.

[30]      In the absence of a decision there is no basis upon which the Board or the Umpire could decide the issues Mr. Steel wishes to raise concerning a write-off of his indebtedness. He is not a “person who is the subject of a decision of the Commission” who may appeal from the decision to the Board. Nor is there a decision that could be judicially reviewed in the Federal Court. The question Mr. Steel wishes to raise simply does not arise on this record. There is no justiciable issue.

[31]      Before leaving this issue, I should deal with Mr. Steel’s submission that the two notices of debt evidence a decision on the write-off. I am satisfied that the notices of debt can be treated as decisions taken under subsection 52(2) of the Act that are subject to appeal under subsection 114(1). See Braga v. Canada (Attorney General), 2009 FCA 167, 392 N.R. 295, at paragraph 41. However, I have not been satisfied that the notices of debt evidence any decision about a write-off because Mr. Steel’s only recorded reference to a write-off came after the issuance of these documents. The notices of debt simply evidence the amount calculated by the Commission to be owing by Mr. Steel.

[32]      Absent a decision by the Commission concerning a requested write-off, there is also no basis on which to consider Mr. Steel’s complaint that the Commission breached his right to procedural fairness by failing to give reasons. I therefore turn to consideration of the proper quantification of the overpayment.

b. Did the Umpire err by affirming the Commission’s calculation of the amount of the overpayment of benefits?

[33]      Leaving aside for the moment the concessions made by the Commission before the Umpire, in his written submissions Mr. Steel argued that the Umpire erred by:

1. Concluding that the income replacement benefits Mr. Steel received fell within the definition of earnings pursuant to paragraph 35(2)(d) of the Regulations.

2. In the alternative, if the income replacement benefits did fall within the definition of earnings, failing to apply the deduction rules found in subsection 19(2) of the Act.

[34]      During oral argument counsel for Mr. Steel abandoned the second asserted error and so it is not necessary to deal with this argument.

i. Did the Umpire err by concluding that the income replacement benefits fell within the definition of earnings pursuant to paragraph 35(2)(d) of the Regulations?

[35]      Monies received by claimants that are determined to be earnings are taken into account to determine the amount of benefits to be repaid to the Commission (section 45 of the Act). Section 35 of the Regulations specifies what income received by a claimant constitutes earnings. For the purpose of this application, the relevant provision is paragraph 35(2)(d) which provides:

35. …

(2) Subject to the other provisions of this section, the earnings to be taken into account for the purpose of determining whether an interruption of earnings under section 14 has occurred and the amount to be deducted from benefits payable under section 19, subsection 21(3), 22(5), 152.03(3) or 152.04(4) or section 152.18 of the Act, and to be taken into account for the purposes of sections 45 and 46 of the Act, are the entire income of a claimant arising out of any employment, including

…

(d) notwithstanding paragraph (7)(b) but subject to subsections (3) and (3.1), the payments a claimant has received or, on application, is entitled to receive from a motor vehicle accident insurance plan provided under a provincial law in respect of the actual or presumed loss of income from employment due to injury, if the benefits paid or payable under the Act are not taken into account in determining the amount that the claimant receives or is entitled to receive from the plan; [Emphasis added.]

[36]      Paragraph 35(7)(b) and subsections 35(3) and (3.1), referred to in paragraph 35(2)(d) are contained in the Appendix to these reasons. They are not material to the issue now before the Court.

[37]      It is not disputed by the parties that the income replacement benefits in issue were received by Mr. Steel from a motor vehicle accident insurance plan provided under a provincial law, or that the benefits paid under the Act were not taken into account in order to determine the amount Mr. Steel received from his insurer. Therefore, the question to be determined on this application is whether the payments Mr. Steel received were “in respect of the actual or presumed loss of income from employment due to injury”.

[38]      Mr. Steel argues that he was unemployed at the time of his accident so that it follows that he lost no income due to the accident and indeed could lose no income. The income replacement benefits he received were paid pursuant to paragraph 2 of subsection 4(1) of the Statutory Accident Benefits Schedule—Accidents on or after November 1, 1996, O. Reg. 403/96 [s. 1 (as am. by O. Reg. 462/96, s. 2)] (Ontario Regulations). He states that such benefits are not based on an actual or presumed loss of employment and therefore do not fall within paragraph 35(2)(d) of the Regulations. Mr. Steel relies upon the decision of this Court in Gall v. Canada, [1995] 2 F.C. 413.

[39]      In my view, this Court’s decision in Gall does not assist Mr. Steel. Gall does not stand for the proposition that persons unemployed at the time of an accident cannot receive benefits in respect of actual or presumed loss of income from employment. The Court explained, at page 429 of its reasons, that it is necessary to “examine applicable provincial legislation in each case in order to determine the precise purpose for which the no-fault payments were in fact made.” The Court was not satisfied on the evidence that benefits paid in that case were earnings within the scope of the provision then equivalent to paragraph 35(2)(d) of the Regulations.

[40]      The relevant provincial regulation has been amended subsequent to the decision in Gall. The relevant provisions of the Ontario Regulations for the purpose of this application are sections 4 [as am. by O. Reg. 458/03, s. 2], 5 [as am. by O. Reg. 295/07, s. 2] and 6 (found in the Appendix to these reasons). The following points may be taken from those sections:

1. These sections are found in Part II of the Regulations under the heading “Income Replacement Benefit”. Headings may be used as an aid to the construction of an enactment. See Gall, at page 425.

2. Under subsection 4(1) of the Ontario Regulations, income replacement benefits can be paid if the insured person meets any of the following qualifications:

4. …

1.    The insured person was employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment.

2.    The insured person,

i.   was not employed at the time of the accident,

ii.  was employed for at least 26 weeks during the 52 weeks before the accident or was receiving benefits under the Employment Insurance Act (Canada) at the time of the accident,

iii. was 16 years of age or more or was excused from attendance at school under the Education Act at the time of the accident, and

iv. as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of the employment in which the insured person spent the most time during the 52 weeks before the accident.

3.    The insured person,

i.   was entitled at the time of the accident to start work within one year under a legitimate contract of employment that was made before the accident and that is evidenced in writing, and

ii.  as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of the employment he or she was entitled to start under the contract. [Emphasis added.]

3. Under subsection 5(1), subject to subsection 5(2), income replacement benefits are payable during the period “the insured person suffers a substantial inability to perform the essential tasks of the employment in respect of which he or she qualifies for the benefit under section 4.”

4. Pursuant to subsection 6(1), the amount of the income replacement benefits is calculated with respect to the insured person’s “net weekly income from employment determined in accordance with section 61”.

5. Pursuant to subsection 6(2), the insurer may deduct from the amount of the income replacement benefits payable 80 percent of the net income received by the insured person in respect of any employment subsequent to the accident.

[41]      On the basis of the plain language of the relevant provisions of the Ontario Regulations, I conclude that the income replacement benefits are paid “in respect of the actual or presumed loss of income from employment due to injury” and so fall within the scope of paragraph 35(2)(d) of the Regulations.

[42]      This construction is consistent with the evidence before the Umpire, which included advice from the automobile insurer that the processing of the income replacement benefits claim was based in part upon information provided from his former employer.

[43]      It follows that Mr. Steel has not established that the Umpire erred by affirming the Commission’s characterization of the income replacement benefits as earnings.

            ii. The Commission’s concessions

[44]      As a result of the Commission’s concessions before the Umpire, the Umpire erred by affirming the Commission’s quantification of the overpayment. The overpayment should have been reduced to $6 146. It follows that I would allow this application in part and would return the matter to the Chief Umpire or his designate for redetermination in accordance with the direction that, without prejudice to Mr. Steel’s right to request that the amount owing be written off, the amount of the overpayment is $6 146.

c.         Costs

[45]      The parties agree that if Mr. Steel is wholly successful on this appeal he should receive costs in the amount of $5 000. While Mr. Steel has not been wholly successful, I would award him the costs of this application fixed in the amount of $5 000, all-inclusive. In my view, such an award is appropriate for the reasons that follow.

[46]      First, the Commission knew by the time of the hearing before the Board that Mr. Steel wished to pursue a write-off of the overpayment, albeit on the ground of administrative error. Notwithstanding that knowledge, no substantive response was made to Mr. Steel by the Commission. The Commission confined its response to arguing before the Board that neither the Board nor the Umpire were empowered to deal with the request (see representations of the Commission to the Board, at page 65 of the respondent’s record). It would have been helpful to all if the Commission had clarified that it had made no decision about a requested write-off.

[47]      Second, having conceded before the Umpire that its calculation of the overpayment was wrong, the Commission then did nothing to rectify the error after the Umpire inexplicably failed to deal with this issue. Section 120 of the Act permits an Umpire to rescind or amend a decision if the Umpire is satisfied that the decision was based on a mistake as to some material fact. When its concession was ignored, the Commission ought to have asked the Umpire to amend his decision.

[48]      In my view, the Commission’s conduct unnecessarily lengthened this proceeding. At the least, by failing to seek an amendment of the Umpire’s decision the Commission compelled Mr. Steel to put this aspect of his claim in issue in this application. At worst, this proceeding would have been unnecessary had the Commission clarified that it made no decision about a write-off and then corrected its error in the calculation of the overpayment.

Conclusion

[49]      In summary, on the basis of the Commission’s concession, I would allow the application in part and would return the matter to the Chief Umpire or his designate for redetermination in accordance with the direction that the amount of the overpayment is $6 146. I would order the respondent to pay costs to the applicant fixed in the amount of $5 000, all-inclusive.

  Layden-Stevenson J.A.: I agree.

* * *

The following are the reasons for judgment rendered in English by

Stratas J.A.:

A.        Introduction

[50]      Mr. Steel has appealed from the Commission to the Board of Referees and then to the Umpire, and now he has proceeded to this Court by way of judicial review. Was that the right route? Or should he have proceeded directly from the Commission to the Federal Court by way of judicial review?

[51]      Simply put, we are faced with a basic jurisdictional question: is it our job to determine this case, or is it the job of the Federal Court? The parties fully argued this question before us.

[52]      Can we decline to answer this jurisdictional question and simply deal with the merits of this case? I think not. On the merits of this case, the respondent invites us to examine the evidentiary record, find as a fact that the Commission has not decided Mr. Steel’s write-off request, and dismiss this application as premature. But is it our job to examine the evidentiary record, make factual findings, and reach a conclusion on the merits, or is it the job of the Federal Court? The jurisdictional question cannot be avoided. Until it is answered, we cannot proceed. And, aside from necessity, there are many good reasons, set out below, why we should answer this question in this particular case.

[53]      In my view, this Court does have jurisdiction, for the reasons set out below. Accordingly, this Court can determine the merits of Mr. Steel’s case. On the merits, I agree with my colleague’s cogent reasons and I concur with the judgment that she proposes.

B.        The jurisdictional issue

[54]      In this case, Mr. Steel became liable to pay back an overpayment of benefits. He says that he requested the Commission to write off that liability under subsection 56(1) of the Employment Insurance Regulations, SOR/96-332 because of “undue hardship”. Mr. Steel contends that the Commission decided against his request for a write-off.

[55]      Accordingly, Mr. Steel has pursued appeals to the Board of Referees and the Umpire under subsection 114(1) and section 115 of the Employment Insurance Act, S.C. 1996, c. 23. These provisions, set out in the schedule to my colleague’s reasons, allow a “claimant” or an “other person” to appeal to the Board of Referees and the Umpire. From there, a judicial review may be brought to this Court under section 118 [as am. by S.C. 2002, c. 8, s. 182] of the Act.

[56]      On the existing authorities of this Court, Mr. Steel is not a “claimant”: Cornish-Hardy v. Board of Referees (Unemployment Insurance Act, 1971), [1979] 2 F.C. 437 (C.A.), affd [1980] 1 S.C.R. 1218 and Canada (Attorney General) v. Filiatrault, 1998 CanLII 8522, 99 CLLC 240-001 (F.C.A.).

[57]      Therefore, the jurisdictional issue boils down to whether Mr. Steel is an “other person” under subsection 114(1) and section 115 of the Act. If Mr. Steel is an “other person”, then he can appeal to the Board of Referees and the Umpire and, from there, can apply to this Court for judicial review under section 118 of the Act. If Mr. Steel is not an “other person”, then his only recourse is by way of judicial review from the Commission’s refusal to the Federal Court under sections 18 [as am. by S.C. 1990, c. 8, s. 4; 2002, c. 8, s. 26] and 18.1 [as enacted by S.C. 1990, c. 8, s. 5; 2002, c. 8, s. 27] of the Federal Courts Act, R.S.C., 1985, c. F-7 [s. 1 (as am. idem, s. 14)].

[58]      For some time now, this Court has held that persons aggrieved by write-off decisions made by the Commission have to proceed by way of application for judicial review to the Federal Court: Cornish-Hardy and Filiatrault, both above. The appeal and review route involving the Board of Referees, the Umpire and this Court is not available.

[59]      However, Cornish-Hardy and Filiatrault arose under different statutory provisions: just before a statutory reform in 1996, these provisions were subsection 79(1) and section 80 of the Unemployment Insurance Act, R.S.C., 1985, c. U-1. These provisions were more limited than subsection 114(1) and section 115 of the current Act. Subsection 79(1) only allowed a “claimant” or “an employer of the claimant” to appeal from a decision of the Commission to the Board of Referees. Section 80 allowed “the Commission, a claimant, an employer or an association of which the claimant or employer is a member” to appeal from a decision of the Board of Referees to the Umpire. Neither provision allowed an “other person” to appeal.

[60]      Although subsection 114(1) and section 115 of the current Act are broader in that they allow an “other person” to appeal, our Court has continued to follow the position in Cornish-Hardy and Filiatrault: Buffone v. Canada (Minister of Human Resources Development), 2001 CanLII 22143 (F.C.A.); Canada (Attorney General) v. Mosher, 2002 FCA 355; Canada (Attorney General) v. Villeneuve, 2005 FCA 440, 352 N.R. 60.

[61]      In each of Buffone, Mosher and Villeneuve, this Court regarded the jurisdictional issue as settled. The reasons of each case suggest that the Court had not received any submissions on the relevant statutory provisions. In each case, the Court had before it a benefits recipient without legal representation.

C.        Why we must determine the jurisdictional issue, and determine it at the outset

[62]      In my view, the jurisdictional issue logically precedes all other issues before us. In particular, it precedes what I shall call the “next issue”. The next issue is whether the judicial review should be dismissed for prematurity: whether the Commission has made a decision one way or the other in this matter.

[63]      As I have mentioned in paragraph 52 above, and as my colleague’s detailed reference to the record of the case demonstrates, the next issue involves examining the factual minutia in the evidentiary record, making factual findings, and reaching a conclusion on the merits. In my view, before we delve into the next issue and perform those tasks, we should first ask whether those tasks are to be done by this Court or the Federal Court. Since this Court is a statutory court, not a court of inherent jurisdiction, we should be cautious about embarking upon tasks that, in reality, may be the tasks of others.

D.        Why, in any event, we should exercise our discretion in favour of determining the jurisdictional issue?

[64]      Even if we did not have to determine the jurisdictional issue, I would still exercise my discretion in favour of determining it.

[65]      To be sure, there is much to be said for not determining the jurisdictional issue. A minimal approach to judicial decision making usually has great merit. Under this approach, sometimes called “judicial minimalism”, we fashion solutions that are practical, routine, and uncontroversial and apply them to the cases before us, avoiding broad, unnecessary pronouncements. Sometimes, in search of solutions, we might consider a modest reform to our judge-made law. But we reform it only if necessary and appropriate, only as little as necessary, and always subject to Parliament’s laws which bind us.

[66]      When we discard judicial minimalism and, instead, gratuitously pronounce sweeping legal principles, we expose ourselves to the charge that we are law-making—a task beyond our remit, unelected as we are. Also, without the real-life facts that inform our pronouncements, temper our judgment, and keep us accountable, we are more likely to be wrong, more likely to cause disorder, and more likely to injure.

[67]      This is especially so in social benefits cases, such as this. In these cases, usually we see the Crown with counsel facing benefits claimants without counsel. One-sided submissions are the norm. In such circumstances, broad pronouncements founded upon such submissions are hazardous, and the appearance of fairness, if not fairness itself, may suffer.

[68]      But too great a devotion to judicial minimalism sometimes can impose too great a cost. Pressing issues can linger and fester, and litigants may suffer for that.

[69]      Consider, as an example, the plight of Mr. Steel. The majority of this Court will decide this case without determining the jurisdictional issue he has placed before us. Then the Commission will rule on whether Mr. Steel is entitled to a write-off. Assuming the Commission rules adversely to him, he will have to choose a route of review without the benefit of a determination on the jurisdictional issue. If he chooses the wrong route of review, he will be forced to go back to where he was before and start all over again. In a case like this, too great a devotion to judicial minimalism can ensnare benefits recipients in a frustrating game of “snakes and ladders”.

[70]      Of course, after receiving our judgment in this case, Mr. Steel may not have the resources or the resolve to bother further with any of this. If that happens, the jurisdictional issue will be left for next time. Next time, though, there will be one big difference: it is almost certain that the benefits recipient appearing before us will lack legal representation.

[71]      This particular social benefits case is quite unusual: before us are opposing parties, both represented by counsel of capability, both proffering legal submissions of high quality. This makes it safer and fairer to determine the jurisdictional issue, which is a narrow issue of law divorced from the particular facts of this case. Further, by determining the jurisdictional issue once and for all, we will provide some assistance to the benefits recipients who fend for themselves in this administrative regime. To the extent that we can make basic things like appeal routes clearer and more accessible, we should.

[72]      Seizing this opportunity and determining the jurisdictional issue in these circumstances is not dissimilar from what we do in other exceptional circumstances. We decide moot, academic or unnecessary issues when it is in the public interest to do so (Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342). We allow public interest litigation to proceed where the claimant, albeit not directly affected, is dedicated, the issue is important, and no one else is likely to advance to bring the issue forward (Canadian Council of Churches v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 236). In the area of social benefits law, we have sometimes taken advantage of the rare presence of represented parties to go further than necessary in order to clear up some jurisprudential uncertainty: e.g. Gill v. Canada (Attorney General), 2010 FCA 182, [2011] 4 F.C.R. 159. Why not do so here?

[73]      In this case, despite the merits of judicial minimalism, we should decide the jurisdictional issue even if it is not necessary to decide it. It is safe, practical and just to do so.

E.        The merits of the jurisdictional issue

[74]      In my view, Parliament’s decision to add the words “other person” to subsection 114(1) and section 115 of the current Act was intended to allow persons, such as Mr. Steel, to appeal rulings on write-off requests to the Board of Referees and the Umpire, and then to proceed to this Court. Were it not so, it would be very difficult to see what Parliament had in mind when it added those words.

[75]      In my view, this interpretation should be tested by examining Parliament’s overall purpose behind this administrative scheme, as shown by the specific statutory provisions it adopted: Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559; Chrysler Canada Ltd. v. Canada (Competition Tribunal), [1992] 2 S.C.R. 394. This administrative scheme is aimed at diverting issues relating to employment insurance from the court system into the more informal, specialized, efficient adjudicative mechanisms set up by Parliament. My interpretation of “other person” is consistent with, and furthers that aim.

[76]      A contrary interpretation would mean that the writing-off of liabilities to repay the overpayment of benefits, a matter related to the entitlement to employment insurance benefits, would be diverted from this informal, specialized, efficient regime into the slower, more formal, more resource-intensive court system. That interpretation makes no sense. Only the clearest of statutory wording, not present here, could drive us to such a result.

[77]      The statements in Buffone, Mosher and Villeneuve that suggest a different answer to the jurisdictional question in this case are best regarded as not being the considered opinion of the panels that decided them. Further, to the extent that Cornish-Hardy and Filiatrault bar persons like Mr. Steel from appealing to the Board of Referees and the Umpire under subsection 114(1) and section 115 of the Act, they should no longer be followed. Those cases were decided under the former Act which, unlike the current Act, did not allow “other person[s]” to appeal.

[78]      Therefore, in my view, Mr. Steel was an “other person” under subsection 114(1) and section 115 and could appeal to the Board of Referees and the Umpire and, under section 118, could apply for judicial review in this Court. Therefore, this Court has jurisdiction.

[79]      On the merits of Mr. Steel’s judicial review in this Court, I agree with my colleague’s reasons and concur with her proposed disposition of the application.

APPENDIX TO THE REASONS OF DAWSON J.A.

Subsection 19(2), section 45, subsection 52(3), paragraph 54(k), subsection 114(1) and section 120 of the Employment Insurance Act read as follows:

	19. …
Earnings in periods of unemployment	(2) Subject to subsections (3) and (4), if the claimant has earnings during any other week of unemployment, there shall be deducted from benefits payable in that week the amount, if any, of the earnings that exceeds (a) $50, if the claimant’s rate of weekly benefits is less than $200; or (b) 25% of the claimant’s rate of weekly benefits, if that rate is $200 or more. …
Return of benefits by claimant	45. If a claimant receives benefits for a period and, under a labour arbitration award or court judgment, or for any other reason, an employer, a trustee in bankruptcy or any other person subsequently becomes liable to pay earnings, including damages for wrongful dismissal or proceeds realized from the property of a bankrupt, to the claimant for the same period and pays the earnings, the claimant shall pay to the Receiver General as repayment of an overpayment of benefits an amount equal to the benefits that would not have been paid if the earnings had been paid or payable at the time the benefits were paid. … 52. …
Amount repayable	(3) If the Commission decides that a person has received money by way of benefits for which the person was not qualified or to which the person was not entitled, (a) the amount calculated is repayable under section 43; and (b) the day that the Commission notifies the person of the amount is, for the purposes of subsection 47(3), the day on which the liability arises. …
Regulations	54. … (k) for the ratification of amounts paid to persons while they are not entitled to them and for writing off those amounts and any penalties under section 38, 39 or 65.1 and amounts owing under section 43, 45, 46, 46.1 or 65 and any costs recovered against those persons; …
Appeal to board of referees	114. (1) A claimant or other person who is the subject of a decision of the Commission, or the employer of the claimant, may appeal to the board of referees in the prescribed manner at any time within (a) 30 days after the day on which a decision is communicated to them; or (b) such further time as the Commission may in any particular case for special reasons allow. …
Amendment of decision	120. The Commission, a board of referees or the umpire may rescind or amend a decision given in any particular claim for benefit if new facts are presented or if it is satisfied that the decision was given without knowledge of, or was based on a mistake as to, some material fact.

Subsections 35(2), (3), (3.1) and (7), and subsection 56(1) of the Employment Insurance Regulations read as follows:

35. …

(2) Subject to the other provisions of this section, the earnings to be taken into account for the purpose of determining whether an interruption of earnings under section 14 has occurred and the amount to be deducted from benefits payable under section 19, subsection 21(3), 22(5), 152.03(3) or 152.04(4) or section 152.18 of the Act, and to be taken into account for the purposes of sections 45 and 46 of the Act, are the entire income of a claimant arising out of any employment, including

(a) amounts payable to a claimant in respect of wages, benefits or other remuneration from the proceeds realized from the property of a bankrupt employer;

(b) workers’ compensation payments received or to be received by a claimant, other than a lump sum or pension paid in full and final settlement of a claim made for workers’ compensation payments;

(c) payments a claimant has received or, on application, is entitled to receive under

(i) a group wage-loss indemnity plan,

(ii) a paid sick, maternity or adoption leave plan,

(iii) a leave plan providing payment in respect of the care of a child or children referred to in subsection 23(1) or 152.05(1) of the Act, or

(iv) a leave plan providing payment in respect of the care or support of a family member referred to in subsection 23.1(2) or 152.06(1) of the Act;

(d) notwithstanding paragraph (7)(b) but subject to subsections (3) and (3.1), the payments a claimant has received or, on application, is entitled to receive from a motor vehicle accident insurance plan provided under a provincial law in respect of the actual or presumed loss of income from employment due to injury, if the benefits paid or payable under the Act are not taken into account in determining the amount that the claimant receives or is entitled to receive from the plan;

(e) the moneys paid or payable to a claimant on a periodic basis or in a lump sum on account of or in lieu of a pension; and

(f) where the benefits paid or payable under the Act are not taken into account in determining the amount that a claimant receives or is entitled to receive pursuant to a provincial law in respect of an actual or presumed loss of income from employment, the indemnity payments the claimant has received or, on application, is entitled to receive pursuant to that provincial law by reason of the fact that the claimant has ceased to work for the reason that continuation of work entailed physical dangers for

(i) the claimant,

(ii) the claimant's unborn child, or

(iii) the child the claimant is breast-feeding.

(3) Where, subsequent to the week in which an injury referred to in paragraph (2)(d) occurs, a claimant has accumulated the number of hours of insurable employment required by section 7 or 7.1 of the Act, the payments referred to in that paragraph shall not be taken into account as earnings.

(3.1) If a self-employed person has sustained an injury referred to in paragraph (2)(d) before the beginning of the period referred to in section 152.08 of the Act, the payments referred to in that paragraph shall not be taken into account as earnings.

…

(7) That portion of the income of a claimant that is derived from any of the following sources does not constitute earnings for the purposes referred to in subsection (2):

(a) disability pension or a lump sum or pension paid in full and final settlement of a claim made for workers’ compensation payments;

(b) payments under a sickness or disability wage-loss indemnity plan that is not a group plan;

(c) relief grants in cash or in kind;

(d) retroactive increases in wages or salary;

(e) the moneys referred to in paragraph (2)(e) if

(i) in the case of a self-employed person, the moneys became payable before the beginning of the period referred to in section 152.08 of the Act, and

(ii) in the case of other claimants, the number of hours of insurable employment required by section 7 or 7.1 of the Act for the establishment of their benefit period was accumulated after the date on which those moneys became payable and during the period in respect of which they received those moneys; and

(f) employment income excluded as income pursuant to subsection 6(16) of the Income Tax Act.

…

56. (1) A penalty owing under section 38, 39 or 65.1 of the Act or an amount payable under section 43, 45, 46, 46.1 or 65 of the Act, or the interest accrued on the penalty or amount, may be written off by the Commission if

(a) the total of the penalties and amounts, including the interest accrued on those penalties and amounts, owing by the debtor to Her Majesty under any program administered by the Department of Human Resources Development does not exceed $20, a benefit period is not currently running in respect of the debtor and the debtor is not currently making regular payments on a repayment plan;

(b) the debtor is deceased;

(c) the debtor is a discharged bankrupt;

(d) the debtor is an undischarged bankrupt in respect of whom the final dividend has been paid and the trustee has been discharged;

(e) the overpayment does not arise from an error made by the debtor or as a result of a false or misleading declaration or representation made by the debtor, whether the debtor knew it to be false or misleading or not, but arises from

(i) a retrospective decision or ruling made under Part IV of the Act, or

(ii) a retrospective decision made under Part I or IV of the Act in relation to benefits paid under section 25 of the Act; or

(f) the Commission considers that, having regard to all the circumstances,

(i) the penalty or amount, or the interest accrued on it, is uncollectable, or

(ii) the repayment of the penalty or amount, or the interest accrued on it, would result in undue hardship to the debtor.

Subsection 79(1) of the Unemployment Insurance Act read as follows:

Appeal to board of referees

79. (1) The claimant or an employer of the claimant may at any time within thirty days after the day on which a decision of the Commission is communicated to him, or within such further time as the Commission may in any particular case for special reasons allow, appeal to the board of referees in the manner prescribed.

Sections 4, 5 and 6 of the Statutory Accident Benefits Schedule — Accidents on or After November 1, 1996, read as follows:

4. (1) The insurer shall pay an insured person who sustains an impairment as a result of an accident an income replacement benefit if the insured person meets any of the following qualifications:

1.    The insured person was employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment.

2.    The insured person,

i.   was not employed at the time of the accident,

ii.  was employed for at least 26 weeks during the 52 weeks before the accident or was receiving benefits under the Employment Insurance Act (Canada) at the time of the accident,

iii. was 16 years of age or more or was excused from attendance at school under the Education Act at the time of the accident, and

iv. as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of the employment in which the insured person spent the most time during the 52 weeks before the accident.

3.    The insured person,

i.   was entitled at the time of the accident to start work within one year under a legitimate contract of employment that was made before the accident and that is evidenced in writing, and

ii.  as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of the employment he or she was entitled to start under the contract.

(2) Despite subsection (1), paragraph 3 of that subsection applies only if the accident occurs before April 15, 2004.

5. (1) Subject to subsection (2), an income replacement benefit is payable during the period that the insured person suffers a substantial inability to perform the essential tasks of the employment in respect of which he or she qualifies for the benefit under section 4.

(2) The insurer is not required to pay an income replacement benefit,

(a) for the first week of the disability;

(b) for any period longer than 104 weeks of disability, unless, as a result of the accident, the insured person is suffering a complete inability to engage in any employment for which he or she is reasonably suited by education, training or experience; or

(c) in the case of an insured person who qualifies for the benefit under paragraph 3 of section 4, for the period before the day he or she would have been entitled under the contract to begin employment;

(d) for any period longer than 12 weeks after the accident, in the case of an insured person whose impairment is a Grade I whiplash-associated disorder that comes within a Pre-approved Framework Guideline, if the accident occurred after April 14, 2004; or

(e) for any period longer than 16 weeks after the accident, in the case of an insured person whose impairment is a Grade II whiplash-associated disorder that comes within a Pre-approved Framework Guideline, if the accident occurred after April 14, 2004.

6. (1) The amount of the income replacement benefit shall be,

(a) for each of the first 104 weeks of disability, 80 per cent of the insured person’s net weekly income from employment determined in accordance with section 61; and

(b) for each week after the first 104 weeks of disability, the greater of the amount specified in clause (a) and $185.

(2) The insurer may deduct from the amount of the income replacement benefit payable to an insured person 80 per cent of the net income received by the insured person in respect of any employment subsequent to the accident.

(3) For the purpose of subsection (2), the net income received by an insured person in respect of employment subsequent to the accident shall be determined by subtracting the following amounts from the gross income received by the person in respect of the employment subsequent to the accident:

1.    The premium payable by the person under the Employment Insurance Act (Canada) on the gross income.

2.    The contribution payable by the person under the Canada Pension Plan on the gross income.

3.    The income tax payable by the person under the Income Tax Act (Canada) and the Income Tax Act (Ontario) on the gross income.

(4) For the purpose of subsection (2), net income from self-employment for an insured person who was self-employed at the time of the accident shall be determined without making any deductions for,

(a) expenses that were not reasonable or necessary to prevent a loss of revenue;

(b) salary expenses that were paid to replace the person’s active participation in the business, except to the extent that those expenses were reasonable for that purpose; and

(c) non-salary expenses that were different in nature or greater than the non-salary expenses incurred before the accident, except to the extent that those expenses were necessary to prevent or reduce any losses resulting from the accident.

(5) If the insured person was self-employed at the time of the accident and the person incurs losses from self-employment as a result of the accident, the insurer shall add to the amount of the income replacement benefit payable to the person 80 per cent of the losses from self-employment incurred as a result of the accident.

(6) For the purpose of subsection (5), losses from self-employment shall be determined in the same manner as losses from the business in which the person was self-employed would be determined under subsection 9(2) of the Income Tax Act (Canada) and the Income Tax Act (Ontario), without making any deductions for,

(a) expenses that were not reasonable or necessary to prevent a loss of revenue;

(b) salary expenses that were paid to replace the person’s active participation in the business, except to the extent that those expenses were reasonable for that purpose;

(c) non-salary expenses that were different in nature or greater than the non-salary expenses incurred before the accident, except to the extent that those expenses were necessary to prevent or reduce any losses resulting from the accident;

(d) expenses that are eligible for capital cost allowance or an allowance on eligible capital property; or

(e) losses deductible under section 111 of the Income Tax Act (Canada).