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    Antedated Claim

    A-172-85 Judgment Of The Federal Court Of Appeal - It is found that ignorance of the law does not constitute a good cause to delay filing a claim for benefits and that the obligation to promptly file a claim for benefits is demanding and strict. Justice Marceau wrote:

    " The prompt filing of a claim was obviously seen by parliament as a basic requirement for a proper administration of the system that was being set up by the Act . . There is, indeed, an obligation which imports a duty of care required of a claimant and I readily agree that, to assure the prompt filing of claims, so important in the eyes of parliament, that obligation and duty must be seen as being very demanding and strict . ... In my view, when a claimant has failed to file his claim in a timely way and his ignorance of the law is ultimately the reason for his failure, he ought to be able to satisfy the requirement of having "good cause", when he is able to show that he did what a reasonable person in his situation would have done to satisfy himself as to his rights and obligation under the Act. This means that each case must be judged on its own facts and to this extent no clear and easily applicable principle exists; a partially subjective appreciation of the circumstances is involved which excludes the possibility of any exclusively objective test. I think, however, that this is what Parliament had in mind and, in my opinion, this is what justice requires" .

    The appeal was denied.
    Applicant: Attorney General of Canada
    Date: 1985
    Respondent: Waldmemar Albrecht
    Corresponding CUB: 10026 Umpire Decision

    Availability

    A-1388-92 Judgment Of The Federal Court Of Appeal - In this case the Commission had applied its policy of limiting benefits for those claimants who quit to move to a smaller community in an arbitrary fashion. They found there was no compelling evidence that the claimant's chance of finding work were reduced by the move. The Court said that the policy could not be applied blindly and automatically but must be made with respect to the claimant's particular situation, possibilities and circumstances. The application was dismissed.
    Appellant: Attorney General of Canada
    Respondent: Mervyn Higgett
    Date: 1994
    Corresponding CUB: 21693 Umpire Decision

    A-56-96 Judgment Of The Federal Court Of Appeal - In this case the Federal Court of Appeal has provided three factors that must be considered when determining if a claimant has proven his availability. Justice Marceau wrote:

    " There being no precise definition in the Act, this Court has held on many occasions that availability must be determined by analyzing three factors - the desire to return to the labour market as soon as a suitable job is offered, the expression of that desire through efforts to find a suitable job, and not setting personal conditions that might unduly limit the chances of returning to the labour market - and - that the three factors must be considered in reaching a conclusion" .

    Appellant: Michel Faucher
    Date: 1997
    Corresponding CUB: 30987 Umpire Decision /30988 Umpire Decision

    A-1485-92 Judgment Of The Federal Court Of Appeal - In this case the Court found a claimant who moved from a larger centre to be with a recently married husband who lived in a smaller centre should not have her benefits limited because it would be unreasonable under the circumstances. The availability of such claimants must be determined in the same way as the existing residents of the new community. The application was dismissed.
    Appellant: Attorney General of Canada
    Respondent: Gloria Kuntz
    Date: 1994
    Corresponding CUB: 21825 Umpire Decision

    A-474-97 Judgment Of The Federal Court Of Appeal - In this case the Court found that a decision of an Umpire, Board and Commission that a claimant who was waiting to be recalled during a temporary three month lay-off should not be disentitled for non-availability from the beginning of the claim, without any warning. The matter was returned to a differently constituted Board of Referees for reconsideration.
    Appellant: Jacques Carpentier
    Respondent: THE ATTORNEY GENERAL OF CANADA
    Date: 1998
    Corresponding CUB: 37168 Umpire Decision

    Board of Referees - Decisions Requirements

    A-321-97 Judgment Of The Federal Court Of Appeal - The issue of this case is whether or not the applicant, John Andrew Parks, lost his employment due to his own misconduct. The Federal Court of Appeal ruled that the Board of Referees must provide reasons if it chooses to reject evidence in the docket. Justice Strayer wrote:

    We are all in agreement that the Board erred in law in failing to comply adequately with subsection 79(2). Specifically we are of the view that it was incumbent on the Board to state, at least briefly, that it rejected critical parts of the evidence of the applicant on grounds of credibility, and why it did so. In this case there was before the Board much written material from the employer of a hearsay nature. The affidavit evidence and oral statements of the claimant before the Board conflicted in various respects with this material. The Board simply states its conclusions without explaining why it preferred one version of events to the other. While we do not interpret subsection 79(2) to require a detailed statement of findings of fact, we are of the view that the Board of Referees, to comply with that subsection, must when there is an issue of credibility state at least briefly, as part of its "findings ... on questions of fact material to the decision," that it rejects certain evidence on this basis and why. When it fails to do so it errs in law.

    In this case, the decision of the Umpire was set aside and the matter referred back to a new Umpire with directions to set aside the decision of the Board and order a new hearing before another Board.
    Applicant: John Andrew Parks
    Date: 1998
    Respondent: Attorney General of Canada
    Corresponding CUB: 33904A Umpire Decision

    Board of Referees - Disqualifications

    A-3-95 Judgment Of The Federal Court Of Appeal - In this case the Court reviewed a situation in which an employee became angry over a pay dispute and told the manager's secretary that he was quitting. He almost immediately retracted his "resignation" in writing, but the manager replied that he was accepting it, and also that he regarded the claimant's angry language as misconduct. The Court upheld the decisions of the Referees and Umpire that the claimant could not be disqualified, either for quitting without just cause or for misconduct. The Court said, however, that if the facts suggest that either ground for disqualification - quitting without just cause or misconduct - took place and was the reason for the claimant's loss of employment, the disqualification must stand. The appeal can't be allowed merely because the Commission based its decision on the "wrong" ground, as the Board or Umpire interprets the facts. The application was dismissed.
    Appellant: Attorney General of Canada
    Respondent: RALPH EPPEL
    Date: 1995
    Corresponding CUB: 26287 Umpire Decision

    A-1598-92 - The Board came to the view that the claimant had not lost his job by reason of his own misconduct, but rather had voluntarily left his job without just cause. The Umpire had ruled that the Board erred in their decision because they could not determine a disqualification on a ground other than what the Commission had based their disqualification. The Court said that because the matter was a disqualification under Section 28 and the Board could by interpreting the facts in a slightly different manner conclude that the case was one of quitting without just cause rather that one of being fired and the Board did not stray from the subject matter it was called upon to consider. Appellant: Attorney General of Canada Respondent: David Easson Date:1992 Corresponding CUB: 22055

    Credibility

    A-1467-92 Judgment Of The Federal Court Of Appeal - In this case the Commission admitted in their submissions to the Umpire that written statements by the employer and the claimant had been refuted by the testimony of the claimant and the employer before the Board. The Court said that the Board certainly did not ignore the written statements when it decided to give more credence to the testimony it heard in preference to the written statements in the docket. Consequently, the application was allowed.
    Applicant: Patrice Fillion
    Respondent: CEIC (The Commission)
    Date: 1994
    Corresponding CUB: 21875 Umpire Decision

    A-321-97 Judgment Of The Federal Court Of Appeal - In this case the Court found that the Board erred in law when they failed to state why they rejected critical parts of the evidence of the claimant. There was written documentation from the employer of a hearsay nature. The claimant had provided affidavit evidence and oral statements which conflicted with hearsay material from the employer. The Board stated its conclusions without explaining why it had accepted the version of the employer without commenting on how it had determined credibility in light of contradictory evidence. A new hearing was ordered.
    Applicant: John Andrew Parks
    Respondent: THE ATTORNEY GENERAL OF CANADA
    Date: 1998
    Corresponding CUB: 33904A Umpire Decision

    Delayed Appeals - Board of Referees

    A-127-95 Judgment Of The Federal Court Of Appeal - In this case the Court upheld the Board's decision accepting the claimant's evidence about when he had been told of the decision in favour of contradictory evidence from the Employment Insurance office. The court was of the view that the Commission had failed to take into account the delay in notification of the claimant's rights of appeal.
    Applicant: Attorney General of Canada
    Respondent: LECH PODGORSKI
    Date: 1995
    Corresponding CUB: 26841 Umpire Decision

    A-432-96 Judgment Of The Federal Court Of Appeal -This is the court's decision of what they consider special reasons for late filing of an appeal. Justice Strayer is quoted as saying:

    " We will therefore set aside the decision of the learned Umpire, and refer it back to an Umpire for reference back to the Commission for reconsideration. While we recognize that the Commission has a discretion in the matter, we would draw its attention to the inaccuracies in its factual submissions to the Board and Umpire and to the factors such as the seriousness of a determination that false or misleading statements have been made, the amount of the penalty imposed, and the fact that there was a delay of only about one month after the time limit for the appeal. In our view these are all " special reasons" to be taken into account although it is for the Commission to weigh these and possibly other considerations in exercising its discretion."

    Appellant: Albert Cardamone Date: 1997
    Corresponding CUB: 33488 Umpire Decision

    Evidence - New Evidence Not Available At Time of Hearing

    A-72-07 - The applicant had lost their employment due to misconduct. The Umpire maintained that decision as well as dismissing his request for a reconsideration based on evidence which was not available to the claimant at the time of his hearing. The appellant had obtained a memorandum from HRSDC in which the staff person had recommended to the Crown that the case should be returned for a “de novo” hearing by a new Board because there were problems with the case. The Crown did not follow those recommendations. Based on these new facts the Court sent the matter back to the Chief Umpire or his designate for reconsideration of the motion for reconsideration in light of the new evidence.

    Appellant: Edson Emilio Alvarez Garcia
    Respondent: Attorney General of Canada
    Date: 2007
    Corresponding CUB: 66107A

    False or Misleading Statements

    A-600-94 Judgment Of The Federal Court Of Appeal - The main task of this Court on this application is to clarify the meaning of subsection 33(1) of the Act. When it comes to false or misleading statements the onus of proof rests upon the Commission to establish a balance of probabilities, not beyond reasonable doubt. Mistaken representations don't subject the claimant to a penalty even though the money may have been paid in error. In this case the Federal Court of Appeal is quoted as saying in the following in relation to Section 33(1) of the Act:

    " This much is clear, but there has been some confusion and disagreement in the cases concerning the meaning of the concept of knowledge in this situation. In my view, the words " knew to be false or misleading" requires a subjective test in determining whether the requisite knowledge is present. If Parliament had intended that an objective standard be used, it would have included the words " had reason to know" , as is often done in legislation. This was recognized by Mr. Justice Marceau in Zysman v. Canada Employment and Immigration Commission (A-27-94 Judgment Of The Federal Court Of Appeal, September 12, 1994), where he indicated that " a subjective knowledge of the falsehood on the part of the speaker was crucial,...." . It is also consistent with the law in the field of environmental protection where penalties were provided for those who " knowingly" gave false information."

    When deciding if there was subjective knowledge by the claimant, the Board and/or Commission must take common sense and objective factors into account. For example, if a claimant claims to be ignorant when it comes to information that the whole world knows then the fact finder could disbelieve the claimant and believe that they may have been lying. This doesn't make the test objective, it does however take into account objective matters in coming to a decision on subjective knowledge. If in the end the facts are that the claimant really didn't know that the representation was false and that there was no violation of subsection 33(1). The Umpire allowed the appeal because:

    " I am satisfied that, before s.33 is made to apply, the statement must be made knowingly with the general intent to deceive or mislead, and there must be the existence of an intention to deceive. I do not ascribe a criminal burden of proof to s.33; I simply conclude that there was a misunderstanding on the part of the claimant, and the misunderstanding is well documented on the record."

    Applicant: Attorney General
    Respondent : Catherine Gates
    Date: 1995
    Corresponding CUB: 25451 Umpire Decision

    A-667-96 Judgment Of The Federal Court Of Appeal - In this case Justice Linden is quoted as saying:

    " However, we are of the view that the Umpire and the Board erred in law in their determination of the appropriateness of the penalty for knowingly making a false statement contrary to Section 33. The mere fact that a legally false statement is made does not necessarily mean that it was made knowing that it was false. Neither does the repetition of a false statement make it knowingly false; there must be subjective knowledge of falsity. Where a claimant honestly believes that he was not " working" and responds to that effect in good faith to a question that is ambiguous to him, cannot automatically assumed that he subjectively knew it was a false statement. As I wrote in Canada (Attorney General) v. Gates (1995), 125 D.L.R. (4th) 348: " it is possible for honest confusion to arise as to meaning of the word 'work'..." Here, both the Board and the Umpire assumed that making a legally false statement led inevitably to a finding that it was subjectively known to be so. They were wrong in law in that they did not properly consider the question of whether the claimant subjectively knew that the statements he made were false, as required by Gates (supra)."

    The decision was allowed in part and the decision of the Umpire set aside. The matter was sent back to the Chief Umpire (or his delegate) to be decided by him on the basis that the Board erred in law by not considering properly whether the statements made by the claimant were subjectively known to be false.
    Appellant: David N. Moretto
    Date: 1998
    Respondent: Attorney General of Canada
    Corresponding CUB: 34290 Umpire Decision

    A-438-02 Judgment Of The Federal Court Of Appeal - The issue at hand for judicial review is a decision that was affirmed by the Board and the Umpire that the claimant is liable for a penalty under section 38(1)a of the Act, on the basis of knowingly making false and misleading statements. The evidence shows that the claimant says that he was not " working" during a time when he was actively attempting to obtain clients to buy insurance. His evidence was that since he made no money as an insurance salesman and since he felt that he was merely looking for employment or " prospecting" for clients during that time, he could honestly state that he was not " working." The decision of the Court was as follows:

    " Where as here the Board of Referees believed that the claimant had no intent to mislead, that is the end of the penalty issue. The requirement that the claimant have subjective knowledge that his statements were false was not met.

    When the Board wrote that the Applicant " had a legal obligation to educate himself as to the intent of the question," it erred in law. This statement indicates that the Board was using an objective standard not the subjective one. This error of law is subject to review on a correctness standard (See Budhai v. Canada (A.G), [2002] F.C.J. No 1089 (F.C.A.) A-610-01 Judgment Of The Federal Court Of Appeal).

    The appeal was allowed.
    Appellant: Stephen Mootoo
    Date: 2003
    Corresponding CUB: 54394 Umpire Decision

    Medical Certificates - Voluntarily Leaving

    A-510-96 Judgment Of The Federal Court Of Appeal - The Federal Court of Appeal's Justice is quoted as stating:

    " We all agree that both the Umpire and the Board of Referees erred in finding that the claimant should have produced a medical certificate to justify her contention that she had no alternative but to quit her employment. It seems clear to us that the claimant was not relying on an illness when she stated that working constantly in a standing position gave her sore feet. At the time, she was 59 years old and quite simply found the employment she had accepted in a restaurant too demanding physically. Since her credibility was not questioned, a medical certificate would have added nothing to her testimony."

    Appellant: Claire Brisebois
    Date: 1997
    Corresponding CUB: 33709 Umpire Decision

    Misconduct

    A-72-02 Judgment Of The Federal Court Of Appeal - In this case the claimant had been dismissed for the use of marijuana on company premises. The issue in dispute was the state of mind of the claimant and the fact of whether he believed he could be dismissed for his actions. Based on the acceptance of the fact that in the past other workers had not been dismissed in similar situations, the claimant could not believe that by his action of smoking marijuana he was likely to be dismissed. The Commission appeal to the Umpire was therefore dismissed.
    Applicant: Gary Locke
    Respondents: THE ATTORNEY GENERAL OF CANADA AND THE CANADIAN EMPLOYMENT INSURANCE COMMISSION
    Date: 2003
    Corresponding CUB: 53041 Umpire Decision

    A-381-85 Judgment Of The Federal Court Of Appeal -In this case a test for misconduct has been set out. Justice Reed states:

    In order to determine whether misconduct occurred in the present case, one must look to the general legal principles respecting that concept as it relates to employee-employer relationships. In this regard, I note that in the text by Innis Christie, on Employment Law in Canada (1980) it is stated, at page 361:

    It is clear that a breach of some of the implied obligations of the employee is more serious than the breach of others. ... Dishonesty aside, the courts seem to be prepared to accept that employees are human; they may-get ill and be unable to fulfill their obligations and they may make mistakes under pressure or through inexperience." Black's Law Dictionary (1979, 5th, Ed.) says of misconduct:

    ... its synonyms are misdemeanour, misdeed, misbehaviour, delinquency, impropriety, mismanagement, offense, but not negligence or carelessness.

    Misconduct, which renders discharged employee ineligible for unemployment compensation, occurs when conduct of employee evinces willful or wanton disregard of employer's interest, as in deliberate violations, or disregard of standards of behaviour which employer has right to expect of his employees, or in carelessness or negligence of such degree or recurrence as to manifest wrongful Intent...

    The decision was dismissed and the matter referred back for reconsideration on the basis that there is no ground on which the decision of the Board could be impeached.
    Applicant: Attorney General of Canada
    Date: 1986
    Respondent: Francine Tucker
    Corresponding CUB: 10319 Umpire Decision

    A-732-95 Judgment Of The Federal Court Of Appeal - In this case the Court repudiated a series of its earlier decisions which said that the Board could not overturn a disqualification if the employer believed that the claimant's misconduct was serious enough to result in dismissal. Instead, the Board can determine that the dismissal was unreasonable or capricious even though the claimant had committed some form of misconduct. Judgment: the application was well founded.
    Applicant: Hossein Fakhari
    Respondent: THE ATTORNEY GENERAL OF CANADA
    Date: 1996
    29423 Umpire Decision

    A-246-10 - The claimant allegedly violated the employer’s Alcohol and Drug Policy. The Commission ruled that the claimant violated the policy and was not entitled to benefits. The claimant confirmed that he did not utilize alcohol or drugs while at work, but stated it was consumption on his own time, and was not an issue. The claimant asserts that he should not have fail¬ed the drug test as he had consumed none for several hours before testing and had consumed no other prohibited substances. The Board had both versions, but chose to accept the version presen¬ted by the Commission and found that the claimant was guilty of misconduct which resulted in the loss of his employment. The Umpire confirmed that Board’s decision. The Federal Court found that the evidence does not show that the applicant breached his employer’s policy regarding drugs and alcohol and therefore it is unreasonable to conclude that the claimant lost his employment because of misconduct.
    Applicant: Thomas Lepretre
    Date: 2011
    Respondent: Attorney General of Canada
    Corresponding CUB: 74491

    Penalty-Reduction for Hardship

    A-46-03 Judgment Of The Federal Court Of Appeal - During the period February 4, 2001 to March 21, 2001 the respondent collected benefits while reporting on her reporting cards or through the telephone declaration that she had no earnings even though during the same period she earned $3,922.27 from employment with Remco Forwarding 1983 Ltd. The Commission concluded from this that the respondent had "knowingly failed to declare" all or some of her earnings contrary to paragraph 38(1)(c) of the Act and because the amount of overpayment that this was a "serious" violation. A penalty of $2,144 was imposed by the Commission. She told the Board that she is a single mother of three and cannot afford to pay a penalty. The Board concluded however that the respondent gave false information knowingly and did not consider the hardship as result of the penalty. The Court, as the Umpire had done, found that the Board of Referees had failed to exercise its jurisdiction when it failed to consider whether or not the claimant's claim of inability to pay is a mitigating factor that merits a reduction in the penalty. They said it is up to the Board to either give effect to the "hardship argument" or reject it. They confirmed that the Board of Referees does have the authority to vary a penalty in exceptional circumstances (see A-701-96 Judgment Of The Federal Court Of Appeal).
    Appellant: Kathleen Gray
    Respondent: THE ATTORNEY GENERAL OF CANADA
    Date: 2003
    Corresponding CUB: 55884 Umpire Decision

    Relief Grant

    A-597-94 Judgment Of The Federal Court Of Appeal - The respondents were employees of the Adams Mine in Kirkland Lake, Ontario. By letter dated March 6, 1989, Adams Mine employees were notified by the employer, Cliffs of Canada Limited that the mine was to close March 31, 1990. Through an agreement negotiated by their union, the United Steelworkers of America, the employees of the Adams Mine, including the respondents, were offered a severance package that included a Housing and Rental Subsidy. This subsidy was payable as a fixed one-time cash disbursement, the quantum being determined by reference to the estimated loss in value of housing developed by a prominent agency and submitted to the employer. The Board of Referees held that the subsidies bore no relation to conditions of employment and thus could not be considered earnings. Upon appeal, the Umpire concurred with this result and held that "the scheme under which it was offered protects it from allocation". Even if the housing subsidy were considered earnings, it would be exempt as a "relief grant in cash or kind" under subsection 57(3). The judge in this case determined that the employer made a humane gesture of alleviating the obvious financial hardship that all employees were expected to suffer from the closure; therefore the financial adversity suffered by the employees, being the loss in value of their primary residence as a result of the closing of the mine, fell squarely within the situations meant to be covered by the language "relief grant" as used in subsection 57(3). The Court in supporting the Umpire's decision said they had no doubt that the making up for the loss of value in the claimants' homes by the employer fell squarely within the meaning of "relief grant". The applications were dismissed.
    Appellant: THE ATTORNEY GENERAL OF CANADA
    Respondent: Lawrie Vernon et al
    Date: 1995
    Corresponding CUB: 25472 Umpire Decision

    Umpire - Role/Powers

    A-115-94 Judgment Of The Federal Court Of Appeal -Justice Desjardins dealt with the issue that an Umpire may not substitute his opinion for that of a Board of Referees on factual questions, unless the decision is completely unreasonable based on the evidence on record. She stated:

    " It is evident from the board's decision that both the majority and minority view had been canvassed. Although the majority could have ruled otherwise, they chose to disbelieve the respondent with regard to health as being the cause for leaving his employment. The umpire could not substitute her opinion for that of the majority. The board members were in the best position and had the best opportunity to assess the evidence and make findings with regard to credibility" .

    This application was allowed, the decision of the learned umpire set aside, and the matter referred back to an umpire for reconsideration and redetermination on the basis of whether, in the light of the facts as found by the majority of the board of referees, the respondent " voluntarily left his employment without just cause" within the meaning of subsection 28(4) of the Unemployment Insurance Act.
    Applicant: Attorney General of Canada
    Date: 1994
    Respondent: Stephen Ash
    Corresponding CUB: 24013 Umpire Decision

    A-294-06 Judgment Of The Federal Court Of Appeal - In this case the applicant argued that the Minutes of a Settlement which were not introduced before that Board at the time of the hearing could not be admissible before the Umpire. The court referred to Dubois ( A-728-97 Judgment Of The Federal Court Of Appeal) in which the Court said that the principles of justice suggest that submissions by claimants should be accepted very liberally at all levels. The court found that the Umpire had not erred in accepting the new evidence because it contradicted a finding of misconduct for the claimant. The application was dismissed.
    Applicant: Attorney General of Canada
    Respondent: JULIA COURCHENE
    Date: 2007
    Corresponding CUB: 65901 Umpire Decision

    A-1036-96 Judgment Of The Federal Court Of Appeal - The Federal Court of Appeal holds that the Board of Referees is the trier of fact in assessing the evidence and an Umpire cannot substitute his opinion for that of a Board of Referees, unless he feels that the Board's decision was clearly unreasonable in light of the evidence. Justice Marceau states:

    " In any event, it is the Board of Referees - the pivot of the entire system put in place by the Act for the purpose of verifying and interpreting the facts - that must make this assessment. In this case the Board of Referees, on the basis of the facts it had found and the testimony it had heard, refused to concede that the applicant's breaches, even when considered in conjunction, could constitute misconduct within the meaning of section 28 of the Act, even though the employer may have thought these were sufficient to merit dismissal. The umpire, in our opinion, could not dismiss this finding by the Board solely on the basis of reasoning that, when all is said and done, simply gives unfettered priority to the views of the employer" .

    In this case the application for judicial review was allowed and the matter returned to the umpire for a redetermination on the presumption that the Board of Referee's decision, as presented, is not subject to his intervention.
    Applicant: Mario Guay
    Date: 1997
    Respondent: Attorney General of Canada
    Corresponding CUB: 36064 Umpire Decision

    A-547-01 Judgment Of The Federal Court Of Appeal - Justice Létourneau stated that the role of an Umpire is limited to deciding if the Board of Referees' appreciation of facts is reasonably compatible with the evidence before the Board. He stated:

    We consider that this application for judicial review should be allowed. The umpire simply substituted his assessment of the facts and of the credibility of the witnesses, here the employer, for that of the Board of Referees. He did not have that power. His function is limited "to deciding whether the view of facts taken by the Board of Referees was reasonably open to them on the record": Attorney General of Canada v. McCarthy, 174 N.R. 28 (F.C.A.). In the case at bar, the record contained sufficient evidence for the Board of Referees to arrive at the conclusions which the umpire incorrectly reversed.

    Applicant: Attorney General of Canada
    Date: 2003
    Respondent: Le Centre de valorisation des produits marins de Tourelle Corresponding CUB: 52349 Umpire Decision

    Violations

    A-483-09 -The Federal Court of Appeal rendered a decision that 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. In cases where a penalty (including a 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. The Board of Referees will be required to decide whether or not the Commission exercised its discretion judiciously in issuing the notice of violation.
    Appellant: Zora Gill

    Respondent: Attorney General of Canada
    Date: 2010
    Corresponding CUB: 73416

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    2012-09-27