Canada (Attorney General) v. Pawchuk

Canada (Attorney General) v. Pawchuk Court (s) Database Federal Court of Appeal Decisions Date 2007-06-13 Neutral citation 2007 FCA 231 File numbers A-504-06 Decision Content Date: 20070613 Docket: A-504-06 Citation: 2007 FCA 231 CORAM: DÉCARY J.A. SEXTON J.A. PELLETIER J.A. BETWEEN: THE ATTORNEY GENERAL OF CANADA Applicant and SONNY W. PAWCHUK Respondent Heard at Edmonton, Alberta, on June 11, 2007. Judgment delivered from Calgary, Alberta, on June 13, 2007. REASONS FOR JUDGMENT BY: DÉCARY J.A CONCURRED IN BY: SEXTON J.A. PELLETIER J.A. Date: 20070613 Docket: A-504-06 Citation: 2007 FCA 231 CORAM: DÉCARY J.A. SEXTON J.A. PELLETIER J.A. BETWEEN: THE ATTORNEY GENERAL OF CANADA Applicant and SONNY W. PAWCHUK Respondent REASONS FOR JUDGMENT DÉCARY J.A. [1] The Attorney General of Canada seeks judicial review of a decision whereby an Umpire reduced the penalty which had been imposed by the Employment Insurance Commission and confirmed by the Board of Referees. The Respondent had been penalized under section 38 of the Employment Insurance Act for having knowingly failed to declare earnings during a benefit period. [2] The Umpire reduced the penalty in view “of the repayment of benefits and co-operative conduct” by the claimant. These were, in my respectful view, irrelevant considerations. [3] This Court has repeatedly held that mitigating circumstances are those present before or at the time the penalty is imposed. (See Canada (Attorney General) v. Gagnon, 2004 FCA 351; Canada (Attorney General) v. Morin, [1997] F.C.J. No. 112; Rousseau v. Canada (Attorney General), 2006 FCA 111.) [4] Repayment of benefits is, generally, as in this case, a fact that happens once the penalty has been imposed. It is self evident that the Commission cannot be expected, in exercising its discretion, to consider events that have not occurred at the time it imposes the penalty. [5] Admission of guilty conduct upon being confronted with the offence by the Commission is not, in and of itself, a mitigating factor. To admit that an offence has been committed is not to explain why one has committed it. The penalty being “a deterrent necessary to protect the whole Scheme” (Attorney General of Canada v. Lai, (1998), 229 N.R. 42 (F.C.A.)), it would be too easy for a claimant who has not come forward with an admission to avoid or reduce a penalty simply by co-operating with the Commission once he is caught. [6] The application for judicial review is allowed, the decision of the Umpire is set aside and the matter is sent back to the Chief Umpire or his designate for a re-determination on the basis that the appeal from the Decision of the Board of Referees ought to be dismissed. [7] Costs were not sought. ______”Robert Décary”_______ J.A. “I agree J. Edgar Sexton J.A.” “I agree “J. D. Denis Pelletier J.A.” FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-504-06 STYLE OF CAUSE: The Attorney General of Canada v. Sonny Pawchuk PLACE OF HEARING: Edmonton, Alberta DATE OF HEARING: June 11, 2007 REASONS FOR JUDGMENT BY: DÉCARY J.A. CONCURRED IN BY: SEXTON, PELLETIER, JJA. DATED: June 13, 2007 APPEARANCES: Ms. Leslie Akst FOR THE APPLICANT Mr. Sonny Pawchuk FOR THE RESPONDENT SOLICITORS OF RECORD: Mr. John H. Sims, Q.C. Deputy Attorney General of Canada FOR THE APPLICANT Mr. Sonny Pawchuk Edmonton, Alberta FOR THE RESPONDENT