Canada (Attorney General) v. Kos

Canada (Attorney General) v. Kos Court (s) Database Federal Court of Appeal Decisions Date 2005-09-28 Neutral citation 2005 FCA 319 File numbers A-99-03 Notes Digest Decision Content Date: 20050928 Docket: A-99-03 Citation: 2005 FCA 319 CORAM: NADON J.A. SEXTON J.A. MALONE J.A. BETWEEN: THE ATTORNEY GENERAL OF CANADA Applicant and CHERYL KOS Respondent Heard at Regina, Saskatchewan, on September 28, 2005. Judgment delivered from the Bench at Regina, Saskatchewan, on September 28, 2005. REASONS FOR JUDGMENT OF THE COURT BY: MALONE J.A. Date: 20050928 Docket: A-99-03 Citation: 2005 FCA 319 CORAM: NADON J.A. SEXTON J.A. MALONE J.A. BETWEEN: THE ATTORNEY GENERAL OF CANADA Applicant and CHERYL KOS Respondent REASONS FOR JUDGMENT MALONE J.A. [1] This is an application for judicial review of a decision of an Umpire dated December 7, 2000 (reported as CUB53576A). In that decision the Umpire determined that the written notes of an Insurance Officer constituted a decision of the Commission which triggered the time limits for the imposition of penalties established by section 40 of the Employment Insurance Act, S.C. 1996, C-23 (the Act). [2] The relevant portion of subsection 40(6) of the Act reads as follows: 40. A penalty shall not be imposed under section 38 or 39 if 40. Les pénalités prévues aux articles 38 et 39 ne peuvent être infligées plus de trente-six mois après la date de perpétration de l'acte délictueux ni si une poursuite a déjà été intentée pour celui-ci. (b) 36 months have passed since the day on which the act or omission occurred. [3] The facts briefly stated are these. On September 19, 2000, the Canada Employment Insurance Commission (the Commission) imposed a penalty on the respondent, Cheryl Kos (Kos), pursuant to section 38 of the Act. The Commission imposed the penalty because Ms. Kos failed to report that she worked and received earnings in 1997 and 1998 while she was receiving maternity benefits. It is the position of the Commission that it imposed this penalty within the 36 month limitation period as required by subsection 40(b) of the Act. However, the Umpire looked at a handwritten note prepared by an Insurance Officer on December 20, 2000 and concluded that this note constituted a decision by the Commission. The Umpire, therefore, concluded that a penalty could not be imposed for any of Ms. Kos' acts or omissions that occurred before December 20, 2000 and remitted the matter back to the Commission for a recalculation of the penalty. [4] Before us, the applicant argues that the handwritten note did not impose a penalty on Ms. Kos. Furthermore, it argues that this handwritten note was not a decision of the Commission, nor did it have any legal effect. Rather, it is simply a handwritten note. By elevating this handwritten note to the status of a decision, the applicant asserts that the Umpire misinterpreted subsection 40(b) of the Act and committed a reviewable error. [5] The standard of review applicable to a determination of an Umpire on "question of law and jurisdiction is correctness (see Attorney General v. Sveinson (2002) 2 F.C. 205 (FCA). [6] Reviewed on a correctness standard, we are all of the view that the Commission could not impose a penalty for any act or omission by Ms. Kos that occurred before December 20, 2000. [7] It is worth noting that the correct approach to statutory interpretation is the modern contextual approach. The words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme and object of the Act and the intention of Parliament (see E.A. Driedger in Construction of Statutes (2nd ed. 1983) at page 87. [8] Applying an ordinary and grammatical interpretation to subsection 40(b) of the Act, its clear intention is that the Commission has 36 months to impose a penalty from the date when a claimant commits an offending act or omission. The section makes no reference to when a decision of the Commission is made. In our view the only relevant consideration to establish the time limits outlined in that subsection is the date on which the Commission imposes a penalty. [9] While the word "impose" is not defined in the Act, its meaning, according to the Canadian Oxford Dictionary, (Second Edition, Oxford University Press, 2004) includes "to establish or apply by authority". Adopting this meaning to our facts, the Commission imposed a penalty on Ms. Kos on September 19, 2000. At that date, it decided that a penalty was warranted, it calculated the amount and provided the required notice that Ms. Kos was obliged to pay the penalty. In our view, the time limits under subsection 40(b) ran from that date and that is the only decision that is relevant. [10] On our review of the record, the Insurance Officer's notes do not constitute the imposition of a penalty but merely record that based on new information received form Ms. Kos' employer, that an error had been made in the calculation of the overpayment and penalty. We see nothing in the notes that would form the basis for the Umpire's finding that the notes are to be viewed as a decision of the Commission. In any event, the notes were never communicated to Ms. Kos. [11] The application for judicial review should be allowed, the decision of the Umpire dated December 7, 2002, should be set aside and the matter referred back to the Umpire for redetermination on the basis that the Commission imposed its penalty on Ms. Kos within the 36 month time period prescribed by subsection 40(b) of the Act. No costs were sought by the applicant. "B. Malone" J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-99-03 STYLE OF CAUSE: THE ATTORNEY GENERAL OF CANADA v. CHERYL KOS PLACE OF HEARING: REGINA, SASKATCHEWAN DATE OF HEARING: SEPTEMBER 28, 2005 REASONS FOR JUDGMENT OF THE COURT: (NADON, SEXTON & MALONE JJ.A.) RENDERED FROM THE BENCH BY: MALONE J.A. APPEARANCES: Ms. Carla Lamash FOR THE APPLICANT Ms. Cheryl Kos ON HER OWN BEHALF SOLICITORS OF RECORD: John H. Sims, Q.C. FOR THE APPLICANT Deputy Attorney General of Canada Edmonton, AB Ms. Cheryl Kos ON HER OWN BEHALF Regina, SK