Federal Court of Appeal - Bajwa v. Canada

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Date: 20030917

Docket: A-89-02

Citation: 2003 FCA 341

CORAM: LINDEN J.A.

ROTHSTEIN J.A.

SEXTON J.A.

BETWEEN:

HARDEEP SINGH BAJWA

Applicant

and

HER MAJESTY THE QUEEN

Respondent

Heard at Vancouver, British Columbia on September 17, 2003.

Judgment delivered at Vancouver, British Columbia on September 17, 2003.

REASONS FOR JUDGMENT BY: LINDEN J.A.

CONCURRED IN BY: ROTHSTEIN, SEXTON J.J.A.

Date: 20030917

Docket: A-89-02

Citation: 2003 FCA 341

CORAM: LINDEN J.A.

ROTHSTEIN J.A.

SEXTON J.A.

BETWEEN:

HARDEEP SINGH BAJWA

Applicant

and

HER MAJESTY THE QUEEN

Respondent

REASONS FOR JUDGMENT

LINDEN J.A.

[1] The Applicant was employed by a travel agency from September 2, 1997 to December 2, 1999. On November 15, 1999, the Applicant filled out an application for employment with Dylan Ryan Telemarketing (the "Employer"). The Applicant attended what he thought was a training session that day. Later that same day he left the premises and did not return. He then applied for employment insurance.

[2] By letter dated July 4, 2000, the Regional Insurance Services of the Department of Human Resources Development Canada ("the Commission") sent the Applicant a notice of indefinite disqualification pursuant to sections 29 and 30 of the Employment Insurance Act ("EIA"). The Commission stated that, commencing November 15, 1999, the Applicant was not entitled to benefits because he had left his job without just cause.

[3] Further, on September 1, 2000, the Commission imposed a penalty on the Applicant for making false statements pursuant to section 38 of the Act, regarding his employment with the Employer, as well as a violation for providing false information pursuant to section 7.1 of the Act. The retroactive disqualification resulted in an overpayment of $5,289.00 and the Commission imposed a penalty of $242.00 for the misleading statements. An appeal was taken on all three issues to the Board of Referees.

[4] On September 21, 2000, the Board of Referees (the "Board") dismissed the Applicant's appeal. The majority of the Board found that the Applicant had accepted employment with the Employer and that the decision to "quit his job" was personal to the Applicant, after making the following findings of fact: a record of employment was produced along with a cheque for $46 to the Applicant, which was never picked up.

[5] The Umpire agreed with the Board's decision that the Applicant was employed by the Employer. With respect to the issue of misrepresentation, the Umpire stated that the Applicant "knew or ought to have known what he was applying for" and dismissed the appeal on all three issues.

[6] The Applicant denies that he was ever employed by the Employer. He claims he never accepted the job, but rather only accepted an invitation to attend the training session to "know more about he job in practical details". Although he filled out an application form, he says he did not sign a contract of employment and he did not receive a record of employment or a pay cheque for the day he attended or a T-4 form. The Applicant also argues (in the alternative) that he had just cause, considering that he would not receive the wage he was told he would receive. Moreover, he questioned the work ethics of the Employer.

[7] The Respondent argues that the Applicant was indeed employed for the day he attended training, that a record of employment was produced as well as a pay cheque for $46 that, admittedly, was never picked up by the Applicant. Further, the Respondent argues that the facts of the case do not meet any of the tests of just cause under subsection 29(c) of the EIA.

[8] The record of employment as well as the pay cheque introduced in evidence demonstrates that the Applicant was in fact employed by the Employer on the day he attended training, even though he may have thought otherwise. The Umpire did not err in holding that there was no just cause for leaving pursuant to paragraph 29(c)(vii) of the EIA or paragraph 29(c)(xi) of the Act. The Board was in an advantageous position to make factual findings, owing to its exposure to the evidence and the benefit of hearing the testimony viva voce. Nor was there any reviewable error in the Umpire refusing to admit certain new evidence tendered at the Umpire's hearing.

[9] As for the penalty imposed for providing false information, however, I am of the view that there were no reasons given by the Board upon which the Board could base its finding that the Applicant knowingly misled the Commission, even though the Umpire, also without reason, upheld that finding. It is well established that it is not enough that information be shown to be false, but it must be shown that the Applicant knowingly supplied that false information in order to be subject to a penalty. The Applicant, though technically employed, was not shown to have knowingly lied about it. He never picked up the salary cheque, probably because he did not believe that he had earned anything. On this issue, therefore, the appeal will be allowed and the $242 penalty need not be paid.

[10] In conclusion, the appeals on the two issues of disqualification, pursuant to sections 29 and 30, and the Notice of Violation, pursuant to section 7.1, will be dismissed. On the issue of the penalty for false statements imposed pursuant to section 38, the appeal will be allowed and the matter will be remitted to the Chief Umpire to set aside the penalty for $242, in accordance

with these reasons.

(Sgd.) "Allen M. Linden"

J.A.

"I agree" (Sgd.) "Marshall E. Rothstein"

J.A.

"I agree" (Sgd.) "J. Edgar Sexton"

J.A.

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-89-02

STYLE OF CAUSE: Hardeep Singh Bajwa v. Her Majesty the Queen

PLACE OF HEARING: Vancouver, B.C.