[2002] 2 F.C. D-39
EMPLOYMENT INSURANCE
Canada (Attorney General) v. Miller
A-772-00
2002 FCA 24, Evans J.A.
18/1/02
9 pp.
Application for judicial review of Umpire's decision dismissing appeal from Board of Referees' decision allowing respondent's appeal from Employment Insurance Commission deciding respondent not entitled to benefits—Respondent, golf pro at golf club, claimed and received employment benefits during off-season for several years—In attempt to become financially self-sufficient during off-season, decided to establish golf school which he and another golf pro would run when not employed by their club—Employment Insurance Commission deciding respondent had not been entitled to benefits while preparing to operate, operating, golf school—Board of Referees, Umpire deciding respondent entitled to benefits—Commission argued respondent disentitled to benefits as not then available for work (Act, s. 18) and engaged in business (Regulations, s. 30(3))—Application allowed in part—Failure of Board to expressly address Regulations, s. 30(3) criteria suggesting they were not considered—Board appearing to have collapsed operation of business and availability for work in single question of availability—Umpire erred in law when upheld Board's decision on ground it had weighed and considered evidence and arrived at decision respondent not disqualified by reason of having attempted to create employment for himself, while remaining available for employment—Umpire did not say he had himself reviewed evidence before Board—As to penalty, Board may have erred when concluded respondent had not made statement "in attempt to defraud" if Board meant respondent had received no income from business and therefore had not made statements in attempt to receive benefits while also in receipt of income from another source—However, open to Board to find, as it did, respondent may have been confused by question about work—When respondent answered "No" to question "Did you work during reporting period?", may have thought was being asked directly about work and eligibility, therefore question of fact respondent credible when claimed to be confused about question had been asked—Consequently, Board did not err when held respondent not liable to penalty—Existence of one good ground for setting aside penalty imposed by Commission sufficient to conclude Umpire herein did not err in law when upheld Board's decision on penalty—Commission may wish to consider amending wording of question about work on reporting card so as to make it quite clear precisely what information being sought—Furthermore, before either Board or Umpire, Commission did not produce in evidence reporting cards containing statements relied upon to impose penalty—Commission ought not normally to resort to notes of interview between Commission official and claimant as proof of false statement—Employment Insurance Act, S.C. 1996, c. 23, s. 18—Employment Insurance Regulations, SOR/96-332, s. 30(3).