Date: 20011113
Docket: T-777-98
Neutral citation: 2001 FCT 1248
BETWEEN:
ANNETTE LUCILLE GODDARD
Plaintiff
and
HER MAJESTY THE QUEEN
Defendant
RICHARD MORNEAU, ESQ., PROTHONOTARY
[1] This is a claim in a simplified action by the Plaintiff - who is self-represented - for an amount of $4,572 plus interest based on alleged negligent misrepresentations made to the Plaintiff by employees of the Employment Insurance Commission (hereinafter the Commission) during a visit by the Plaintiff to the Commission regarding the possibility for her to collect maternity benefits while benefiting from a severance package.
Background
[2] During the first part of 1995, the Plaintiff was pregnant with her second child. She was a member of the Canadian Armed Forces and at that particular time, her trade was being offered a form of early retirement under the Forces Reduction Program (the FRP). She therefore considered taking her release in conjunction with the Unemployment Insurance Act maternity benefits to which she believed she would be entitled.
[3] To ensure her maternity benefit entitlement under the Unemployment Insurance Act in conjunction with an FRP release, she inquired verbally at the Commission.
[4] It is the Plaintiff's uncontradicted evidence that she specifically asked the Commission about her entitlement to the benefits in relationship to her FRP release procedures. She was advised by the Commission employees that, "yes", she was entitled to the maternity benefits in conjunction with her FRP release and that the benefits would be paid from the commencement date of her maternity leave (June 11, 1995) up until she actually received the FRP package monies. At the time she received the package monies, she was then to cease sending in her benefit stubs and payments would cease and the FRP money would "from that time/date on" be distributed over the following time/months as appropriate. When that time period ended, she was then to return to the Commission and request the remaining portion of her maternity benefits.
[5] Plaintiff testified that at no time was she given by the Commission staff the correct information as per subsection 59(8) of the Unemployment Insurance Regulations to the effect that the FRP money would be distributed over the months commencing on her effective date of release from the Canadian Forces, which was July 4, 1995.
[6] Although during her testimony the Plaintiff could not be specific as to whom she talked to at the Commission, she nevertheless indicated in evidence - for which she was not contradicted - that the first clerk she talked to at the Commission did not know the entitlements and asked another employee who advised her incorrectly. This particular employee also verified his information with a third employee in her presence. I do not consider that this evidence is hearsay on the part of the Plaintiff as she was present with the said employees at all relevant times. It is also the Plaintiff's clear evidence that had she been advised correctly, she would not have proceeded with her release from the Canadian Forces.
[7] By letter dated January 18, 1996, the Commission advised the Plaintiff that the total amount of $42,628.39 being the severance pay and the vacation pay received from her employer was considered earnings and would be deducted from the Plaintiff's unemployment insurance benefits resulting in no benefits payable to the Plaintiff from July 4, 1995 to September 13, 1996. However, the Plaintiff was informed that her benefit period was extended by fifty-two weeks.
[8] As a result of the allocation of the earnings to the weeks commencing July 4, 1995, there was an overpayment of benefits to the Plaintiff in the amount of $4,572 owed by the Plaintiff to the Commission.
Analysis
[9] The Plaintiff relies heavily on the case of Luo v. Canada (Attorney General) (1997), 33 O.R. (3d) 300, in which the plaintiff was successful on appeal with respect to a claim for damages based on negligent misrepresentations where Commission employees negligently provided the plaintiff therein with wrong information about entitlement to benefits. In that case, at page 309, the Court stated as follows the law in a claim based on negligent misrepresentation:
It is well-established law that a negligent misrepresentation can give rise to liability: Hedley Byrne & Co. v. Heller & Partners Ltd., [1964] A.C. 465, [1963] 2 All. E.R. 575 (H.L.). As pointed out by Hogg, Liability of the Crown, supra (at p. 138), "there are now many cases in which the Crown or municipalities have been held liable for negligent misrepresentation" where advice is given by government officials. The Supreme Court of Canada recently dealt with the issue of the Crown's liability for negligent misrepresentations made by one of its representatives in Queen v. Cognos Inc., [1993] 1 S.C.R. 87, 45 C.C.E.L. 153. In order to succeed in such a claim, the plaintiff must establish five general requirements as set out by Iacobucci J. at p. 110 S.C.R., p. 171 C.C.E.L.:
(1) there must be a duty of care based on a "special relationship" between the representor and the representee; (2) the representation must be untrue, inaccurate, or misleading; (3) the representor . . . must have acted negligently in making said misrepresentation; (4) the representee must have relied, in a reasonable manner, on said negligent misrepresentation; and (5) the reliance must have been detrimental to the representee in the sense that damages resulted.
The Cognos decision was recently applied by the Federal Court of Appeal decision in Spinks v. Canada, [1996] 2 F.C. 563, 134 D.L.R. (4th) 223, where a Crown employee failed to provide the plaintiff with information that would have benefited the plaintiff with respect to his pension rights.
(...)
(...) the substantive issue raised by this appeal: is there an adequate basis on the record to justify the conclusion that the respondent is liable to the appellant for negligence? I will consider whether the respondent meets the five criteria set out in the Cognos case.
[10] As to the first criterion, I believe here that there was a duty of care between the Commission and the Plaintiff. In argument, counsel for the Defendant admitted that the Court could conceivably come to such a conclusion.
[11] As to the second criterion, I believe that it is also met since the uncontradicted evidence brings the Court to conclude that the Plaintiff was provided with information which does not correspond to the content of subsection 59(8) of the Unemployment Insurance Regulations. Therefore, the information provided was untrue, inaccurate or misleading.
[12] I also have no difficulty in concluding that the Commission has acted negligently in making representations to the Plaintiff. As stated by the Court in Luo, at 314, with respect to the Commission's employees:
Their job is to administer and provide information regarding the benefits available to certain classes of people and the changes in eligibility and their failure to inform the respondent of the requirement for course approval and the reason for termination of his benefits fell below the expected standard of care.
Those comments from the Court are applicable to the case at bar.
[13] Skipping for the moment criterion number 4, that is, reliance by the Plaintiff on the information provided to her, I shall consider now the last criterion whereby the reliance by the Plaintiff must have triggered damages.
[14] In that regard, I am satisfied to equate the Plaintiff's damages with the amount reflected by the overpayment claim by the Defendant since had she stayed with the Canadian Forces, the Plaintiff would not be requested now to reimburse the overpayment of $4,572.
[15] Turning back to criterion number 4, the reliance by the Plaintiff on the information provided to her, I am of the opinion that the Plaintiff, not being in a situation as vulnerable as was Mr. Luo in the case of Luo, supra, or Mr. Norman Spinks in the case of Spinks v. Canada, [1996] 2 F.C. 563 (referred to in Luo), was not entirely justified to rely solely on the information provided to her. The Plaintiff admitted in testimony having done no research on her own into whether the Unemployment Insurance Regulations touched upon her release situation. Had she done so, she could have become aware of subsection 59(8) of these regulations.
[16] As stated in Spinks, supra, at 588, it is now established that contributory negligence is available as a partial defence to liability in cases like the present. Due to her lack of carrying on her own research as to the state of the law, I do find the Plaintiff contributory negligent. For that reason, I am of the view that she should bear half of the damages she is claiming.
[17] Consequently, her action shall be granted for an amount of $2,286, plus appropriate interest if interest is claimed by the Defendant on the overpayment.
[18] As success is divided, no costs shall be awarded.
[19] A judgment will issue accordingly.
Richard Morneau
Prothonotary
Montreal, Quebec
November 13, 2001
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET:
STYLE OF CAUSE:
T-777-98
ANNETTE LUCILLE GODDARD
Plaintiff
and
HER MAJESTY THE QUEEN
Defendant
PLACE OF HEARING:Halifax, Nova Scotia
DATE OF HEARING:October 31, 2001
REASONS FOR JUDGMENT BY RICHARD MORNEAU, ESQ., PROTHONOTARY
DATED:November 13, 2001
APPEARANCES:
Ms. Annette Lucille Goddard for the Plaintiff
Mr. Derek Edwards for the Defendant
SOLICITORS OF RECORD:
Mr. Morris Rosenberg for the Defendant
Deputy Attorney General of Canada