Canada (Attorney General) v. Tong

Canada (Attorney General) v. Tong Court (s) Database Federal Court of Appeal Decisions Date 2003-06-30 Neutral citation 2003 FCA 281 File numbers A-412-02 Decision Content Date: 20030630 Docket: A-412-02 Citation: 2003 FCA 281 CORAM: ROTHSTEIN J.A. NOËL J.A. SEXTON J.A. BETWEEN: THE ATTORNEY GENERAL OF CANADA Applicant and YIMIN EVIE TONG Respondent Heard at Toronto, Ontario, on June 19, 2003. Judgment delivered at Ottawa, Ontario, on June 30, 2003. REASONS FOR JUDGMENT BY: NOËL J.A. CONCURRED IN BY: ROTHSTEIN J.A. SEXTON J.A. Date: 20030630 Docket: A-412-02 Citation: 2003 FCA 281 CORAM: ROTHSTEIN J.A. NOËL J.A. SEXTON J.A. BETWEEN: THE ATTORNEY GENERAL OF CANADA Applicant and YIMIN EVIE TONG Respondent REASONS FOR JUDGMENT NOËL J.A. [1] This is an application for Judicial Review brought pursuant to section 28 of the Federal Court Act of a decision by Justice Riche, sitting in the capacity of an Umpire, in which he allowed the respondent, Ms. Tong's appeal from a decision of the Board of Referees. The Board had confirmed the Commission's decision to impose a penalty upon Ms. Tong of 100% of the amount of the overpayment of benefits which she had received as a result of not declaring her work and earnings while receiving benefits. [2] The Board of Referees found that Ms. Tong had deliberately opted not to declare her work and earnings while receiving benefits and that there were no mitigating factors to warrant a reduction in the penalties imposed by the Commission. The Board specifically addressed the question of the part time nature and short duration of Ms. Tong's employment and did not find either to constitute a mitigating factor. The Board found that the oral testimony of Ms. Tong was not credible with regard to her assertion that "since she has contributed to the fund, she is entitled to benefits while holding a part-time job". [3] The Umpire reviewed the evidence and concluded that "there is nothing in the Board's decision that cannot be supported by the evidence. Their findings of fact and their determination based on the law is correct". Nevertheless, he held that the part-time nature and short duration of Ms. Tong's employment ought to be considered mitigating factors allowing for a reduction in the penalty from 100% to 50% of the amount of the overpayment. [4] It is well established that an Umpire has jurisdiction to intervene with the determination of the Commission or the Board of Referees only where it can be demonstrated that the Commission did not exercise its discretion judicially; that is, that it based its decision on a wrong principle, or took into account irrelevant considerations or failed to consider relevant considerations (Canada v. Lebreton, [1995] F.C.J. No. 1478 (F.C.A.); Canada v. Dunham, [1996] F.C.J. No. 1271 (F.C.A.)). [5] This Court has held that this standard applies to the determination of the quantum of a penalty imposed by the Commission. An Umpire cannot interfere with the quantum of a penalty unless it can be shown that the Commission exercised its discretionary power in a non-judicial manner or acted in a perverse or capricious manner without regard to the material before it (Canada v. McLean, [2001] F.C.J. No. 176 (F.C.A.); Canada v. Rumbolt, [2000] F.C.J. No. 1968 (F.C.A.)). [6] In the present case, the Umpire concluded that the Board made no errors of fact or law in confirming the decision of the Commission. He did not find that the Commission had exercised its discretion non-judicially; nor did he point to any error which could be said to fall within the confines of section 115(2) of the Act which sets out the grounds on which an Umpire may interfere with a decision of the Board of Referees. [7] In reducing the penalty to 50%, the Umpire effectively engaged in a re-weighing of the evidence and substituted his own discretion for that of the Commission. In so doing, the Umpire went beyond the jurisdiction conferred upon him by the Act. [8] For these reasons, the application for judicial review should be allowed, the decision of the Umpire set aside and the matter referred back to the Chief Umpire or his designate for determination on the basis that the claimant's appeal for the decision of the Board of Referees should be dismissed. "Marc Noël" J.A. "I agree. Marshall Rothstein, J.A." "I agree. J. Edgar Sexton, J.A." FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-412-02 STYLE OF CAUSE: ATTORNEY GENERAL OF CANADA v. YIMIN EVIE TONG PLACE OF HEARING: Toronto DATE OF HEARING: June 19, 2003 REASONS FOR: NOËL JA. CONCURRED IN BY: ROTHSTEIN J.A. SEXTON J.A. DATED: June 30, 2003 APPEARANCES: Sharon McGovern For the Applicant Yimin Evie Tong For the Respondent SOLICITORS OF RECORD: Morris Rosenberg Deputy Attorney General of Canada For the Applicant Yimin Evie Tong Toronto, ON M5B 2M4 For the Respondent