Date: 20001101
Docket: A-173-99
CORAM: ROTHSTEIN, J.A.,
SEXTON, J.A.,
EVANS, J.A.
In the Matter of Sections 18.1 and 28 (1) of the
Federal Court Act, RSC 1996, C.F-7 and a Decision by
the Umpire communicated February 23, 1998 pursuant to
Section 112 of the
Employment Insurance Act, RSC 1996, c.23
BETWEEN:
DAVID GARFIELD CONNER
Applicant
- and -
THE ATTORNEY GENERAL
OF CANADA
Respondent
REASONS FOR JUDGMENT
EVANS, J.A.
[1] This is an application for judicial review of a decision by the Umpire, dated January 20, 1999. The dispute underlying this proceeding concerns two rulings made by the Commission in 1997.
| [2] First, the applicant, David Garfield Conner, had received unemployment insurance benefits between August 1995 and April 1996 when he was ineligible by virtue of subsections 43(1) and (2) of the Unemployment Insurance Regulations because, while in receipt of benefits, he had been working more than a minor extent in his own business as a self-employed person. Second, he was liable to a penalty under section 33 of the Unemployment Insurance Act because, in reporting that he was not working when in fact he was, he had made statements that he knew to be false or misleading. |
| [3] In a decision rendered in September 1997, a board of referees upheld the Commission on the first issue, but reversed on the second, on the ground that, when he filled out the reporting cards, the applicant did not believe that his involvement in his business constituted full-time work. Hence, the applicant had not made statements that he knew to be false or misleading. |
| [4] The applicant appealed the board's decision that he was working while in receipt of benefits within the meaning of section 43, and the Commission cross-appealed the board's decision on the penalty. In his decision (CUB 43763), the Umpire dismissed the applicant's appeal. However, he allowed the cross-appeal, on the ground that, in accepting the applicant's assertion that he did not think that he was working, the board had failed to assess objectively the evidence relating to Mr. Conner's actual knowledge and had thereby created a defence of "wilful blindness". |
| [5] In this application for judicial review, the applicant asks the Court to set aside the Umpire's decision on four grounds. |
| [6] First, he alleged that there was a reasonable apprehension of bias on the part of the Commission official responsible for his file and that since the Commission had relied on the information supplied by that person in making its determination, the Commission's decision was itself vitiated by bias. Despite Mr. Connner's representations on the issue of bias, neither the board of referees, nor the Umpire, addressed it as a basis for allowing his appeal, although the Umpire was sufficiently impressed by the applicant's presentation that in his reasons he reminded Commission officials of the high standards of conduct expected of civil servants when dealing with members of the public. |
| [7] While the board of referees did not explain in its reasons why it had not dealt with the allegation of bias, the answer is found in the submissions of counsel for the Commission who reminded the board that it could consider afresh, on the basis of the evidence placed before it, whether Mr. Conner was ineligible under section 43 and whether he had knowingly made false or misleading statements. Thus, even if it could be said that the conduct of the Commission official did give rise to a reasonable apprehension of bias, a matter that this Court is in no position to determine, this became irrelevant because the board decided the issues of Mr. Conner's ineligibility and liability for itself. |
| [8] Second, Mr. Conner alleged that he was denied a fair hearing of his appeal because he had been told by the Umpire that he need not read at the hearing the 45 pages of material that he had prepared, since the Umpire had already read it. Having examined the transcript, I am satisfied that the applicant was not denied a fair opportunity to present his case as he thought best. The transcript shows that Mr. Conner spoke at length at the hearing before the Umpire about both of the rulings of the Commission to which he had taken exception. |
| [9] It appears that Mr. Conner had also wanted to explain orally to the Umpire his litany of grievances against the Commission official who had investigated whether the applicant had received benefits when he was working, and the poor quality of the investigation itself. However, for reasons given earlier, these complaints were not germane to the issues to be decided by the Umpire who was accordingly not required to hear oral presentations on them, although he in fact allowed Mr. Conner considerable latitude in this regard. |
| [10] In these circumstances, I am satisfied that the Umpire's intervention did not cross the line that divides a proper attempt to focus the submissions of a litigant in person on the relevant issues, and preventing him from making his case in the way that he chooses. Annesty (CUB 19057) is distinguishable on the facts: unlike the case before us, the written submissions that the board in Annesty had not permitted the appellant to read at the hearing seem to have been directly relevant to the issues in dispute. In contrast, as the transcript reveals, Mr. Conner was not prevented from presenting material relevant to his case. |
| [11] The applicant also noted that, at the beginning of the hearing, the Umpire was under the mistaken impression that there was only one issue before him, namely the appeal by the Commission on the penalty. The Umpire readily acknowledged his mistake when Mr. Conner reminded him that he had appealed on the eligibility issue. In my opinion, this does not establish that the Umpire was biassed against Mr. Conner, or that he did not properly consider his written submissions before rendering the decision. |
| [12] Third, Mr. Conner submitted that the Umpire had erred in concluding that he had knowingly made false or misleading statements. Whether the applicant had made 19 false or misleading statements, as the Umpire found, or a few less, as the applicant alleges, is not material. Nor did the Umpire err when he held that, while the Commission must establish that a claimant knew that statements were false before it may impose a penalty under section 33 of the Regulations, knowledge may be inferred from the fact that the claimant has given wrong or misleading answers to simple questions, at least in the absence of an explanation: Attorney General of Canada v. Gates, [1995] 3 F.C. 17 (F.C.A.). |
| [13] In the case before us, the applicant had answered "no" or "not applicable" to the question on the reporting cards which asked if the claimant had worked during the reporting period. In fact, he had been working as a self-employed person at the relevant times. It is no defence for the applicant to allege that he mistakenly thought that his involvement with his business was minor in nature so as to bring him within the exception in subsection 43(2) of the Regulations. This is not the question asked on the reporting card. |
| [14] Further, it is not for a claimant to decide whether his or her self-employment amounts to working a full working week for the purpose of subsection 43(2). It is the responsibility of the claimant to answer the question asked in a straightforward manner that enables the Commission to make that assessment for itself. |
| [15] Fourth, the applicant submitted that the Umpire had erred in concluding that he was working while in receipt of benefits. In my view, however, the evidence pertaining to the earnings generated from the business, especially in 1995, the continuous period of time in which the applicant had operated the business and the volume of sales made, amply support the finding that Mr. Conner's employment was not so minor that a person would not normally follow it as principal means of livelihood. It was reasonable to infer from this evidence that Mr. Conner was devoting a substantial amount of time to his business. |
| [16] The board did not refer in its reasons to Attorney General v. Jouan (1995), 122 D.L.R. (4th) 346 (F.C.A), in which it was held that, in determining whether a person's involvement in a business was "minor", the most important factor is the time actually spent by the person working in the business. Nonetheless, the Umpire was satisfied that it was open to the board to conclude as it did on the whole of the evidence before it, a conclusion with which I agree. |
| [17] That the board of referees repeated in its reasons a mistake made by a Commission official in stating the precise period in which Mr. Conner claimed benefits was not material to the decision as to whether his self-employment was of more than a minor nature. The correct period was August 1995 to April 1996, not April 1995 to August 1996. However, the evidence of the business's earnings in 1995, and in the period from April, 1995 to August, 1996 provided a sufficient basis for the Umpire to conclude that the applicant was ineligible to receive benefits from August 1995 to April 1996. |
| [18] For these reasons, I would dismiss the application for judicial review. |
| (Sgd.) "John M. Evans" |
| J.A. |
| November 1, 2000 |
| Vancouver, British Columbia |
| "I concur" |
| (Sgd.) "Marshall Rothstein" J.A. |
| "I concur" |
| (Sgd.) "J. Edgar Sexton" J.A. |
Date: 20001101
Docket: A-173-99
CORAM: ROTHSTEIN, J.A.,
SEXTON, J.A.,
EVANS, J.A.
In the Matter of Sections 18.1 and 28 (1) of the
Federal Court Act, RSC 1996, C.F-7 and a Decision by
the Umpire communicated February 23, 1998 pursuant to
Section 112 of the
Employment Insurance Act, RSC 1996, c.23
BETWEEN:
DAVID GARFIELD CONNER
Applicant
- and -
THE ATTORNEY GENERAL
OF CANADA
Respondent
Heard at Vancouver, British Columbia on October 31, 2000
JUDGMENT delivered at Vancouver, British Columbia on November 1, 2000
REASONS FOR JUDGMENT BY: EVANS, J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| DOCKET: A-173-99 |
| STYLE OF CAUSE: David Garfield Conner |
v.
The Attorney General of Canada
| PLACE OF HEARING: Vancouver, British Columbia |
| DATE OF HEARING: October 31, 2000 |
REASONS FOR JUDGMENT BY EVANS, J.A.
| CONCURRED IN BY: Rothstein, J.A., |
Sexton, J.A.
| DATED: November 1, 2000 |
APPEARANCES:
| Mr. David Garfield Conner For the Applicant (on his own behalf) |
| Mr. John Haig For the Respondent |
SOLICITORS OF RECORD:
Morris Rosenberg
Deputy Attorney
| General of Canada For the Respondent |
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