To all Chairpersons and Members of Employment Insurance Boards of Referees

Subject: Federal Court of Appeal decision (A-483-09)

On July 8, 2010, the Federal Court of Appeal (FCA) rendered a decision concerning the automatic issuance of the Notice of Violation whenever the Commission issues a warning letter, imposes a monetary penalty or is successful in prosecution.

In its analysis of subsection 7.1(4) of the EI Act, the FCA concluded that in situations where a sanction has been imposed, the issuance of the Notice of Violation is not mandatory or automatic under subsection 7.1(4) but discretionary on the part of the Commission.

Decisions of the Federal Court of Appeal do not have retroactive effect. The Commission is bound by the ruling of the FCA decision in Zora Gill (A-483-09) from July 8, 2010 forward. Therefore, as of July 8, 2010, in all cases where a penalty (including warning letter, monetary penalty or prosecution) has been imposed, the Commission will be required to render a separate decision in regards to whether or not a Notice of Violation should also be issued taking into account all mitigating factors, similar to those used in the determination of the penalty amount.

If the claimant appeals the Notice of Violation, the Commission’s rationale will be a required exhibit before the Board of Referees. The Notice of Violation will be a separate issue under appeal. The Board of Referees will be required to decide whether or not the Commission exercised its discretion judiciously in issuing the Notice of Violation.

The decision, once translated, will be added to the Quick Reference Tool in the next update.

You may read the decision at the following hyperlink: Zora S. Gill A-483-09. Zora S. Gill A-483-09