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Date:20000502 Docket:A-314-98 CORAM: STONE, J.A. EVANS, J.A. MALONE, J.A. BETWEEN: MOHAMMED ABDUN NOOR Applicant - and - HUMAN RESOURCE DEVELOPMENT CANADA (EMPLOYMENT INSURANCE COMMISSION) Respondent Heard at Toronto, Ontario, Tuesday, May 2, 2000 Judgment delivered from the Bench at Toronto, Ontario on Tuesday, May 2, 2000
Date: 20000502 Docket: A-314-98 BETWEEN: MOHAMMED ABDUN NOOR Applicant - and - HUMAN RESOURCE DEVELOPMENT CANADA (EMPLOYMENT INSURANCE COMMISSION) Respondent REASONS FOR JUDGMENT (Delivered from the Bench at Toronto, Ontario on Tuesday, May 2, 2000) EVANS J.A. [1] Mohammed Abdun Noor has been refused leave to appeal out of time a decision by the Unemployment Insurance Commission, dated February 1, 1996, in which the Commission reclaimed overpaid benefits and imposed a penalty on him for claiming benefits at a time when he was gainfully employed. [2] Mr. Noor had 30 days from his receipt of this letter to appeal the Commission"s decision: Unemployment Insurance Act R.S.C. 1985, c. U-1, subsection 79(1). The Commission heard nothing from him until September 3, 1996 when it received an undated letter, written by Mr. Noor with the assistance of a legal aid clinic, requesting leave to make a late appeal to the board of referees. He stated that English was not his first language and that the friend who helped him to understand the Commission"s letter did not read the sentence advising him of the right to appeal within 30 days. [3] The Commission refused to grant leave on the ground that Mr. Noor had not established that there were "special reasons" that justified the positive exercise of its statutory discretion under subsection 79(1) to extend the time for appealing from one month to, in this case, approximately seven months. Mr. Noor appealed this decision to the board of referees which, after holding a hearing, dismissed the appeal on November 7, 1996 concluded that the reason that he had given for failing to appeal in time lacked credibility. [4] Mr. Noor appealed from the board to the Umpire, who held in a decision dated March 5, 1998 that, even though the board had erred in law by asking whether there was "good cause", rather than "special reasons" for extending the limitation period, there was ample evidence in the record to conclude that special reasons did not exist for granting leave to appeal six months out of time. Accordingly, the Umpire exercised the power under section 81 of the Act to set aside the board"s decision and to render the decision that the board should have given, and dismissed the appeal. The question in the appeal to this Court is whether the Umpire erred in so doing. [5] The board had rejected Mr. Noor"s submission that he did not appeal in time because, as a person with a poor command of English, he did not understand the sentence in the decision letter advising him of his right of appeal. The board had based its conclusion on Mr. Noor"s possession of an Ontario driver"s licence, his successful application for Canadian citizenship, his employment as a waiter, and his ability to understand and answer questions put to him at the hearing by members of the board. The board had also regarded Mr. Noor"s admission to an officer of the Commission that he had used another"s SIN for work purposes, so that he could continue to receive UI benefits while he was employed, as undermining the credibility of his explanation. [6] Mr. Noor, who is representing himself, included in his application record two affidavits; however, to the extent that they contain facts that were not before the Umpire they are inadmissible in this application. Mr. Noor denies that he intended to make "false or misleading statements to the Canada Employment Centre with the intention to mislead", and states that his native language is Bengali, and that his possession of a driver"s licence does not mean that his knowledge of English is as good as that of a person born in Canada. [7] Despite the submissions made to this Court by Mr. Noor, the Umpire"s conclusion was well founded. First, it was reasonable for the board to find support for the board"s finding of non-credibility in Mr. Noor"s advising a Commission official that he had been using his own SIN to collect benefits and someone else"s SIN for employment purposes, and his admission to the board that he knew that what he was doing was wrong but he needed the money to pay for food and rent. [8] Second, in the absence of evidence that Mr. Noor had taken the written portion of the Ontario driver"s test with the assistance of a translator or that the language requirement for Canadian citizenship had been waived for Mr. Noor, it was reasonable for the board to infer that his knowledge of written English was sufficient to enable him to understand the simple statement in the letter that he had 30 days to appeal the Commission"s decision. [9] Third, it was open to the board to reject Mr. Noor"s explanation for his late appeal on the basis of the command of English that he displayed at the hearing. [10] Fourth, Mr. Noor"s employment as a waiter for five years at a club and, subsequently at a restaurant while drawing UI benefits, suggests that he has a command of English that is sufficient to enable him to have understood that he had 30 days to appeal. [11] It is possible, of course, that in fact Mr. Noor did not understand written English, but there was no evidence to this effect, other than his own assertion which the board found non-credible in view of his admitted use of another"s SIN in an attempt to hide from the Commission his improper receipt of benefits. Nor was there any evidence before the board, other than Mr. Noor"s assertions, to prove either that he had relied on a friend to translate for him the Commission"s decision letter and that the friend had failed to tell him about the 30 day limitation period set out clearly in the last sentence of the letter, or that an employee at Human Resources to whom Mr. Noor had spoken about the decision did not advise him of the time within which an appeal must be made.
[12] Accordingly, we conclude that the Umpire"s reasons contain no error, and that the application for judicial review should be dismissed. "John M. Evans" J.A. FEDERAL COURT OF CANADA Names of Counsel and Solicitors of Record
Applicant - and -
HUMAN RESOURCE DEVELOPMENT CANADA (EMPLOYMENT INSURANCE COMMISSION) Respondent DATE OF HEARING: TUESDAY, MAY 2, 2000 PLACE OF HEARING: TORONTO, ONTARIO REASONS FOR JUDGMENT
Delivered at Toronto, Ontario on Tuesday, May 2, 2000 APPEARANCES: Mr. Mohammed Abdun Noor
Mr. Andre Chamberlain
565 Sherbourne Street #315 Toronto, Ontario M4X 1W7
FEDERAL COURT OF APPEAL Date: 20000502 Docket: A-314-98
BETWEEN:
Applicant - and -
Respondent
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