Employment Insurance (EI)

Persons in attendance and type of hearing

[1] A teleconference was held on March 24, 2014, for the reasons set out in the notice of appeal dated February 18, 2014. Neither party attended the hearing.

[2] This is the third hearing date set by the Social Security Tribunal.

[3] On January 6, 2014, a first notice of hearing was sent to the Appellant. The hearing was set for January 21, 2014.

[4] The Appellant did not retrieve the documents sent to him by the Tribunal. A second hearing date was then set for February 10, 2014. The second notice of hearing was also returned to the Tribunal.

[5] The documents and a third notice of hearing dated February 18, 2014, were sent by regular mail, and the hearing was set for March 24, 2014. These documents, marked MOVED, were returned to the Tribunal.

[6] The records assistant has attempted several times to reach the Appellant on the telephone since January 2014, but to no avail. The telephone number on file was incorrect.

[7] Under subsection 12(1) of the Social Security Tribunal Regulations, the Tribunal may proceed in a party’s absence if the Tribunal is satisfied that the party received notice of the hearing.

[8] In this case, it appears as though the Appellant was not aware of the notices of hearing sent by the Tribunal.

[9] However, section 6 of the Social Security Tribunal Regulations provides that a party must file with the Tribunal a notice of any change in their contact information without delay.

[10] Furthermore, section 3 of the Social Security Tribunal Regulations grants the Tribunal some flexibility to proceed differently if warranted by special circumstances.

Conduct of Proceedings

Informal conduct

3. (1) The Tribunal

1. (a) must conduct proceedings as informally and quickly as the circumstances and the considerations of fairness and natural justice permit; and
2. (b) may, if there are special circumstances, vary a provision of these Regulations or dispense a party from compliance with a provision.

Proceeding by way of analogy

(2) If a question of procedure that is not dealt with by these Regulations arises in a proceeding, the Tribunal must proceed by way of analogy to these Regulations.

[11] The Tribunal’s Appeal Division rendered a decision in a case presenting similar circumstances. The analysis was based on the right to dismiss an appeal on procedural grounds if a regulatory requirement, in this case the requirement in section 6, was not respected (V.O. v. Canada Employment Insurance Commission and Tube Mac Industries, 2014 SSTAD 2).

[12] In this case, I note that the Appellant did not notify the Tribunal of a change in his contact information when he knew very well that he was required to participate in a hearing.

[13] I found that the Appellant, by failing to comply with section 6 of the Social Security Tribunal Regulations, failed to demonstrate his desire to participate in the hearing.

[14] On the basis of section 3 of the Social Security Tribunal Regulations, I decided to maintain the hearing date of March 24, 2014, and to hear the appeal, thereby meeting my obligation to render a decision as fairly and justly as possible for the parties to this case by taking into account the principles of natural justice.

Introduction

[15] On January 20, 2011, the Appellant contested a decision by the Canada Employment Insurance Commission (the Commission) and appealed to the Board of Referees.

[16] On March 3, 2011, the Board of Referees rendered a decision on the basis of the information on file, as the Appellant did not attend.

[17] The Appellant appealed the Board of Referees’ decision, and the Umpire referred the matter back to another Board of Referees.

[18] On August 24, 2011, the new Board of Referees rendered a new decision dismissing the appeal, also on the basis of the information on file, as the Appellant did not attend the hearing of that appeal.

[19] The Appellant once again appealed to the Umpire, who again referred the matter back for hearing by another Board of Referees.

[20] On May 9, 2012, the Appellant attended a hearing and requested an adjournment. He alleged that he needed to obtain clarification and representation.

[21] The hearing was scheduled to resume on June 11, 2012. The Appellant was not heard from and did not respond to calls from the Board of Referees’ assistant.

[22] On June 20, 2012, the Board of Referees resumed the hearing adjourned on May 9, 2012, and rendered a decision on the basis of the information on file.

[23] The Appellant appealed that decision to the Umpire.

[24] On April 1, 2013, the Umpire had not yet heard the case. In accordance with sections 266 and 267(1) of the Jobs, Growth and Long-term Prosperity Act of 2012, the Appeal Division of the Social Security Tribunal became seized of appeals filed with, but not heard by, the Office of the Umpire before April 1, 2013.

[25] The appeal was allowed and the matter referred to the Tribunal’s General Division (Employment Insurance Section) for a new hearing by a member on all the issues.

Issues

[26] The Tribunal must determine:

1. 1. whether the Appellant voluntarily left his employment without just cause within the meaning of sections 29 and 30 of the Employment Insurance Act (the Act) on February 3, 2008;
2. 2. whether the sums received by the Appellant during his benefit period constitute earnings within the meaning of the Act and, if so, whether these sums were allocated correctly pursuant to sections 35 and 36 of the Employment Insurance Regulations (the Regulations).
3. 3. whether the Appellant knowingly made one or more false statements and, with respect to this issue, whether the Commission exercised its discretionary power judicially by imposing a penalty pursuant to section 38 of the Act; and
4. 4. whether the Commission exercised its discretionary power judicially by issuing a notice of violation within the meaning of section 7.1 of the Act.

Applicable law

Voluntary leaving:

[27] Section 29 of the Act:

For the purposes of sections 30 to 33,

1. (a) "employment" refers to any employment of the claimant within their qualifying period or their benefit period;
2. (b) loss of employment includes a suspension from employment, but does not include loss of, or suspension from, employment on account of membership in, or lawful activity connected with, an association, organization or union of workers;
3. (b.1) voluntarily leaving an employment includes
   1. (i) the refusal of employment offered as an alternative to an anticipated loss of employment, in which case the voluntary leaving occurs when the loss of employment occurs,
   2. (ii) the refusal to resume an employment, in which case the voluntary leaving occurs when the employment is supposed to be resumed, and
   3. (iii) the refusal to continue in an employment after the work, undertaking or business of the employer is transferred to another employer, in which case the voluntary leaving occurs when the work, undertaking or business is transferred; and
4. (c) just cause for voluntarily leaving an employment or taking leave from an employment exists if the claimant had no reasonable alternative to leaving or taking leave, having regard to all the circumstances, including any of the following:
   1. (i) sexual or other harassment,
   2. (ii) obligation to accompany a spouse, common law partner or dependent child to another residence,
   3. (iii) discrimination on a prohibited ground of discrimination within the meaning of the Canadian Human Rights Act,
   4. (iv) working conditions that constitute a danger to health or safety,
   5. (v) obligation to care for a child or member of the immediate family,
   6. (vi) reasonable assurance of another employment in the immediate future,
   7. (vii) significant modification of terms and conditions respecting wages or salary,
   8. (viii) excessive overtime work or refusal to pay for overtime work,
   9. (ix) significant changes in work duties,
   10. (x) antagonism with a supervisor if the claimant is not primarily responsible for the antagonism,
   11. (xi) practices of an employer that are contrary to law,
   12. (xii) discrimination with regard to employment because of membership in an association, organization or union of workers,
   13. (xiii) undue pressure by an employer on the claimant to leave their employment, and
   14. (xiv) any other reasonable circumstances that are prescribed.

[28] Subsection 30(1) of the Act:

A claimant is disqualified from receiving any benefits if the claimant lost any employment because of their misconduct or voluntarily left any employment without just cause, unless

1. (a) the claimant has, since losing or leaving the employment, been employed in insurable employment for the number of hours required by section 7 or 7.1 to qualify to receive benefits; or
2. (b) the claimant is disentitled under sections 31 to 33 in relation to the employment.

[29] Subsection 30(2) of the Act:

(2) The disqualification is for each week of the claimant’s benefit period following the waiting period and, for greater certainty, the length of the disqualification is not affected by any subsequent loss of employment by the claimant during the benefit period.

(3) If the event giving rise to the disqualification occurs during a benefit period of the claimant, the disqualification does not include any week in that benefit period before the week in which the event occurs.

Earnings and allocation:

[30] Subsection 35(1) of the Regulations:

The definitions in this subsection apply in this section.

“employment” means

1. (a) any employment, whether insurable, not insurable or excluded employment, under any express or implied contract of service or other contract of employment,
   1. (i) whether or not services are or will be provided by a claimant to any other person, and
   2. (ii) whether or not income received by the claimant is from a person other than the person to whom services are or will be provided;
2. (b) any self-employment, whether on the claimant’s own account or in partnership or co adventure; and
3. (c) the tenure of an office as defined in subsection 2(1) of the Canada Pension Plan. (emploi)

“income” means any pecuniary or non pecuniary income that is or will be received by a claimant from an employer or any other person, including a trustee in bankruptcy. (revenu)

[31] Paragraph 35(2)(a) of the Regulations:

Subject to the other provisions of this section, the earnings to be taken into account for the purpose of determining whether an interruption of earnings under section 14 has occurred and the amount to be deducted from benefits payable under section 19 or subsection 21(3), 22(5) [or 23(3)] ... of the Act, and to be taken into account for the purposes of sections 45 and 46 of the Act, are the entire income of a claimant arising out of any employment, including

1. (a) amounts payable to a claimant in respect of wages, benefits or other remuneration from the proceeds realized from the property of a bankrupt employer;

[32] Subsection 35(7) of the Regulations:

(7) That portion of the income of a claimant that is derived from any of the following sources does not constitute earnings for the purposes referred to in subsection (2):

1. (a) disability pension or a lump sum or pension paid in full and final settlement of a claim made for workers’ compensation payments;
2. (b) payments under a sickness or disability wage loss indemnity plan that is not a group plan;
3. (c) relief grants in cash or in kind;
4. (d) retroactive increases in wages or salary;
5. (e) the moneys referred to in paragraph 2(e) if
   1. (i) in the case of a self-employed person, the moneys became payable before the beginning of the period referred to in section 152.08 of the Act, and
   2. (ii) in the case of other claimants, the number of hours of insurable employment required by section 7 or 7.1 of the Act for the establishment of their benefit period was accumulated after the date on which those moneys became payable and during the period in respect of which they received those moneys; and
6. (f) employment income excluded as income pursuant to subsection 6(16) of the Income Tax Act.

[33] Subsections 36(1) and (4) of the Regulations:

38. (1) Subject to subsection (2), the earnings of a claimant as determined under section 35 shall be allocated to weeks in the manner described in this section and, for the purposes referred to in subsection 35(2), shall be the earnings of the claimant for those weeks.

(4) Earnings that are payable to a claimant under a contract of employment for the performance of services shall be allocated to the period in which the services were performed.

[34] Section 43 of the Act:

A claimant is liable to repay an amount paid by the Commission to the claimant as benefits

1. (a) for any period for which the claimant is disqualified; or
2. (b) to which the claimant is not entitled.

[35] Subsection 7(1) of the Act:

Unemployment benefits are payable as provided in this Part to an insured person who qualifies to receive them.

False or misleading statements, penalty and notice of violation:

[36] Section 38 of the Act:

(1) The Commission may impose on a claimant, or any other person acting for a claimant, a penalty for each of the following acts or omissions if the Commission becomes aware of facts that in its opinion establish that the claimant or other person has

1. (a) in relation to a claim for benefits, made a representation that the claimant or other person knew was false or misleading;
2. (b) being required under this Act or the regulations to provide information, provided information or made a representation that the claimant or other person knew was false or misleading;
3. (c) knowingly failed to declare to the Commission all or some of the claimant’s earnings for a period determined under the regulations for which the claimant claimed benefits;
4. (d) made a claim or declaration that the claimant or other person knew was false or misleading because of the non-disclosure of facts;
5. (e) being the payee of a special warrant, knowingly negotiated or attempted to negotiate it for benefits to which the claimant was not entitled;
6. (f) knowingly failed to return a special warrant or the amount of the warrant or any excess amount, as required by section 44;
7. (g) imported or exported a document issued by the Commission, or had it imported or exported, for the purpose of defrauding or deceiving the Commission; or
8. (h) participated in, assented to or acquiesced in an act or omission mentioned in paragraphs (a) to (g).

(2) The Commission may set the amount of the penalty for each act or omission at not more than

1. (a) three times the claimant’s rate of weekly benefits;
2. (b) if the penalty is imposed under paragraph (1)(c),
   1. (i) three times the amount of the deduction from the claimant’s benefits under subsection 19(3), and
   2. (ii) three times the benefits that would have been paid to the claimant for the period mentioned in that paragraph if the deduction had not been made under subsection 19(3) or the claimant had not been disentitled or disqualified from receiving benefits; or
3. (c) three times the maximum rate of weekly benefits in effect when the act or omission occurred, if no benefit period was established.

(3) For greater certainty, weeks of regular benefits that are repaid as a result of an act or omission mentioned in subsection (1) are deemed to be weeks of regular benefits paid for the purposes of the application of subsection 145(2).

[37] Subsection 7.1(4) of the Act:

An insured person accumulates a violation if in any of the following circumstances the Commission issues a notice of violation to the person:

1. (a) one or more penalties are imposed on the person under section 38, 39, 41.1 or 65.1, as a result of acts or omissions mentioned in section 38, 39 or 65.1;
2. (b) the person is found guilty of one or more offences under section 135 or 136 as a result of acts or omissions mentioned in those sections; or
3. (c) the person is found guilty of one or more offences under the Criminal Code as a result of acts or omissions relating to the application of this Act.

[38] Subsection 7.1(5) of the Act:

Except for violations for which a warning was imposed, each violation is classified as a minor, serious, very serious or subsequent violation as follows:

1. (a) if the value of the violation is
   1. (i) less than $1,000, it is a minor violation,
   2. (ii) $1,000 or more, but less than $5,000, it is a serious violation, or
   3. (iii) $5,000 or more, it is a very serious violation; and
2. (b) if the notice of violation is issued within 260 weeks after the person accumulates another violation, it is a subsequent violation, even if the acts or omissions on which it is based occurred before the person accumulated the other violation.

[39] Subsection 7.1(6) of the Act:

The value of a violation is the total of

1. (a) the amount of the overpayment of benefits resulting from the acts or omissions on which the violation is based, and
2. (b) if the claimant is disqualified or disentitled from receiving benefits, or the act or omission on which the violation is based relates to qualification requirements under section 7, the amount determined, subject to subsection (7), by multiplying the claimant’s weekly rate of benefit by the average number of weeks of regular benefits, as determined under the regulations.

[40] Subsection 7.1(7) of the Act:

The maximum amount to be determined under paragraph (6)(b) is the amount of benefits that could have been paid to the claimant if the claimant had not been disentitled or disqualified or had met the qualification requirements under section 7.

[41] Subsection 52(1) of the Act:

Despite section 120, but subject to subsection (5), the Commission may reconsider a claim for benefits within 36 months after the benefits have been paid or would have been payable.

[42] Subsection 52(5) of the Act:

If, in the opinion of the Commission, a false or misleading statement or representation has been made in connection with a claim, the Commission has 72 months within which to reconsider the claim.

[43] Section 91 of the Regulations:

(1) A claimant who makes an initial claim for benefits, or a claim for benefits for a week of unemployment, by telephone or other electronic means, and provides the information required by section 50 of the Act, is deemed

1. (a) to have expressed an intention to make a claim for benefits and to have made such a claim for the purposes of section 48, 49 or 152.1 of the Act, as the case may be; and
2. (b) to have supplied the information recorded on the dated printout from the Commission's computerized benefit pay system as responses to the questions posed by the interactive response system by telephone or other electronic means.

(2) A claimant who provides their Social Insurance Number and the following information by telephone or other electronic means is deemed to have signed their respective claim for benefit:

1. (a) in the case of an initial claim for benefits, their date of birth and, if the initial claim is made by electronic means, the maiden name of the claimant's mother; and
2. (b) in the case of a claim for benefits for a week of unemployment, their personal identification number.

(3) A claim for benefits that is made by the means referred to in subsection (1) is deemed to have been made on the day that the information is received and recorded by the Commission's computerized benefit pay system.

(4) For greater certainty, sections 38 and 135 of the Act apply to a declaration made by electronic means.

(5) The acts and omissions specified in subsections 38(1) and 135(1) of the Act are deemed to include the acts and omissions of a person who knowingly attempts to interfere with the operation of the electronic systems used in the administration of the Act, and the penalty provided for by subsection 38(2) of the Act and the punishment provided for by subsection 135(3) of the Act are deemed to include the right to refuse access to those electronic systems to such a person.

Evidence

[44] An investigation revealed that the Appellant worked for Multina Inc from January 13, 2008, to February 3, 2008, and for RPS 2000 from August 24, 2008, to November 9, 2008.

[45] During those periods, he applied for and received Employment Insurance benefits.

[46] The evidence on file also shows that, during these same periods, he reported neither the earnings received nor the fact that he voluntarily left Multina Inc (page GD2-18).

[47] The Appellant stated that he agreed with the sums received from both employers.

[48] With respect to his voluntarily leaving Multina Inc, the Appellant stated that he left the employment because his vehicle had been involved in an accident. According to the Appellant, he no longer had a means of transportation to get to work.

[49] The Commission found that the Appellant did not have just cause for leaving his employment with Multina Inc and imposed a retroactive disentitlement effective February 3, 2008.

[50] This disentitlement resulted in a $9,070 overpayment (pages GD2-198 and GD2-201).

[51] The Commission found that the money paid to the Appellant by employers Multina Inc and RPS 2000 constituted earnings within the meaning of the Act and consequently allocated them pursuant to sections 35 and 36 of the Regulations.

[52] This allocation resulted in an overpayment in the amount of $2,721 in regular benefits and $1,524 in sickness benefits, for a total of $4,245 (pages GD2-198 and GD2-206).

[53] The Commission also found that the Appellant had made false or misleading statements by failing to report his earning for the weeks of January 13 to February 3, 2008, as well as for the weeks of August 24 to November 9, 2008.

[54] Consequently, the Commission imposed a $2,123 penalty (pages GD2-199 and GD2-203).

[55] A notice of serious violation was also imposed on the Appellant.

[56] The overall debt generated by the overpayment, the penalty and the notice of violation amounts to $15,438.

[57] To facilitate comprehension of the file, the amounts appearing in paragraphs 52 to 56 of this decision stem from corrections made by the Commission. Initially, different calculations were made. The Commission subsequently corrected those errors (page GD2-206)

Submissions of the parties

[58] The Appellant submitted the following:

Voluntary leaving

1. a. He was involved in a car accident that deprived him of his means of transportation for getting to work;
2. b. He lived in St-François du Lac and worked 36 minutes away, in Drummondville.

False statements

1. c. According to the Appellant, with respect to his reports for January and February 2008, he made no false statements, as the claim he filed was still being processed. Since he did not know whether he was accepted, there could thus be no question of false statements;
2. d. With respect to the reports for August 2008 to November 2008, he maintained that he did not report those amounts because he completed his reports after leaving his employment with RPS.

[59] The Respondent Commission submitted the following:

Voluntary leaving

1. a. In order to exempt himself from disentitlement and to demonstrate that he had just cause for voluntarily leaving his employment, the Appellant had to show that he explored all reasonable alternatives before deciding to leave his employment;
2. b. He failed to demonstrate this in both his response to the request for information and his letter of appeal;
3. e. Consequently, the Commission submitted that voluntarily leaving his employment was not the only reasonable alternative, having regard to all the circumstances in his case. This is why he was retroactively disentitled from receiving benefits effective February 3, 2008 (page GD2-201).

Allocation of earnings

1. f. In this case, the Appellant received money from his employers. This money was paid to the Appellant as wages and vacation pay;
2. g. The Appellant acknowledged having received these amounts from his former employers;
3. h. The Commission maintained that this money constitutes earnings within the meaning of subsection 35(2) of the Regulations and that it was correctly allocated in accordance with subsections 36(4) and 36(9) of the Regulations (page GD2-199).

False statements and penalty

1. i. The Appellant failed to report his work and earnings during the four weeks of his employment with Multina, which represents two false statements in the electronic reports;
2. j. In addition, during the 12 weeks of his employment with RPS 2000, the Appellant claimed sickness benefits while he was working and being paid, which represents six false statements;
3. k. The Appellant knowingly made erroneous statements—actions that constitute misrepresentations within the meaning of the Act. The Commission maintained that it exercised its discretionary power judicially when it set the penalty amount.

Notice of violation

1. l. The Commission maintained that the purpose of section 7.1 of the Act is to deter abuse of the Employment Insurance scheme by imposing an additional sanction on claimants who attempt to defraud the system;
2. m. In this case, the Commission submitted that it demonstrated that false or misleading statements were made several times;
3. n. The Appellant failed to demonstrate mitigating circumstances for his behaviour. Consequently, the Commission determined that the violation was not too severe and that it had exercised its discretionary power judicially in deciding to issue a notice of violation (pages GD2-205 and GD2-206).

[60] Conclusion of the Commission’s submissions

1. o. The Commission acknowledges that this case involves multiple calculation errors. However, they did not influence its recommendation to dismiss the appeal, as the Appellant chose not to report his work and the earnings received in order to receive benefits when he was not entitled to receive them.
2. p. The Commission recommended the following modifications (page GD2-206):
   1. i. Correct the overpayment of regular benefits resulting from the unreported earnings from $1,980 to $2,721;
   2. ii. Correct the overpayment resulting from the disqualification imposed for voluntarily leaving the employment without just cause from $10,186 to $9,070;
   3. iii. Correct $5,000 penalty to $2,123;
   4. iv. Maintain the $1,524 overpayment of sickness benefits;
   5. v. Note that the Commission states that the notice of violation should be classified as serious rather than very serious;
   6. vi. The overall debt should therefore amount to $15,438, instead of $18,690.

Analysis

Voluntary leaving

[61] According to the wording of subsection 29(c) cited above, to determine whether a claimant has ‟just cause for voluntarily leaving an employment,” one must ask whether, having regard to all the circumstances and on a balance of probabilities, leaving was the only reasonable alternative in his case (Canada (Attorney General) v. White, 2011 FCA 190; MacNeil v. Canada Employment Insurance Commission, 2009 FCA 306).

[62] The onus of proof is on the claimant (Canada (Attorney General) v. Patel, 2010 FCA 95, cited in paragraph 3 of White above).

[63] In Canada (Attorney General) v. Langlois, 2008 FCA 18, the Federal Court of Appeal wrote the following: "The insurance offered by the scheme is a function of the risk run by an employee of losing his employment. Apart from certain exceptions, it is the responsibility of insured persons, in exchange for their participation in the scheme, not to provoke that risk or, a fortiori, transform what was only a risk of unemployment into a certainty: see Tanguay v. Canada (Unemployment Insurance Commission) (F.C.A.), [1985] F.C.J. no. 910.

[64] Subsection 30(2) of the Act provides that an indefinite disqualification be imposed on a claimant who voluntarily leaves their employment without just cause. The test to apply is to determine, taking into account all the circumstances, whether the claimant had a reasonable alternative to leaving their employment when they did.

[65] The Appellant left his employment with Multina Inc on February 3, 2008. He alleged that he no longer had a means of transportation and could not get to his workplace, which was 36 minutes away from his home.

[66] I note that the claimant has always maintained this version, both in his initial reports and in his subsequent appeals.

[67] I agree that being deprived of one’s car to get to work may be annoying and problematic.

[68] However, does this constitute just cause for voluntarily leaving an employment and was it the only reasonable alternative in the Appellant’s case? My answer to this question is no, and I will explain why in the following paragraphs.

[69] That the Appellant left his employment because he was deprived of his means of transportation may constitute a reason or grounds, but it is not sufficient to establish that he had just cause for doing so, that is, that he had just cause within the meaning of subsection 29(c) of the Act.

[70] In fact, the Federal Court of Appeal has clearly held that good cause is not the

[71] A reasonable alternative would have been to first discuss the problem with his employer. He also could have considered carpooling options with co-workers or neighbours. I state this while acknowledging that there is no public transit between his place of residence and his workplace, although this was neither proved nor alleged.

[72] The Appellant also could have requested time off to have his car repaired or to replace it.

[73] In fact, the record gives no indication that the Appellant made any attempts to resolve his transportation problem prior to leaving his employment.

[74] The Appellant did not discharge his burden of proof, and the Tribunal finds that he voluntarily left his employment and that, on a balance of probabilities, leaving was not the only reasonable alternative in his case. The retroactive disqualification from receiving benefits effective February 3, 2008, applies.

False or misleading statements and penalty

[75] From the outset, the Tribunal must reiterate certain case law principles regarding false statements.

[76] In order to be subject to a penalty under paragraph 38(1)(a), it is not enough for a statement be false or misleading; it must also be knowingly made (Mootoo, A-438-02).

[77] In Canada (A.G.) v. Gates (1995) and Canada (A.G) v. Purcell, (1996), the Court made clear that the knowledge of the applicant concerning the falsity of the offending statement had to be decided on a subjective basis. It is up to the trier of fact to assess the claimant’s knowledge.

[78] Did the claimant knowingly make false or misleading statements within the meaning of the Act when completing his Employment Insurance reports in January 2008 and subsequently in August 2008?

[79] Regarding his employment with Multina, the evidence on file shows that the Appellant completed his reports:

• - on January 29, 2008, for the period of January 13 to 26, 2008; and
• - on February 8, 2008, for the period of January 27, 2008, to February 9, 2008 (pages GD2-144 to GD2-153).

[80] Regarding his employment with RPS, the evidence on file shows that the Appellant completed his reports:

• - on September 6, 2008, for the period from August 24, 2008, to September 6, 2008;
• - on September 19, 2008, for the period from September 7, 2008, to September 20, 2008;
• - on November 1, 2008, for the period from September 21, 2008, to October 4, 2008;
• - on November 10, 2008, for the period from October 5, 2008, to October 18, 2008;
• - on November 15, 2008, for the period from October 19, 2008, to November 1, 2008; and
• - on November 22, 2008, for the period from November 2, 2008, to November 16, 2008 (pages GD2-154 to GD2-189).

[81] In his reports of January and February 2008, the periods covered by the reports are clearly indicated. In addition, the Appellant answered in the negative to the following question in each of the statements: Did you work or receive wages during the period covered by this report? This includes self-employment or employment for which you will be paid later.

[82] In his reports for September to November 2008, the periods covered by the reports are just as clearly indicated, and the Appellant in all cases answered in the negative to the following question: Did you work or receive wages during the period covered by this report? This includes self-employment or employment for which you will be paid later.

[83] However, he stated that he was sick during the period from August 24, 2008, to November 8, 2008.

[84] The evidence on file is clear. The Appellant provided erroneous information when completing his reports with respect to the periods of August 24 to November 8, 2008, and January 13 to February 9, 2008.

[85] He reported neither his employment with Multina from January to February 2008, nor his earnings, nor the fact that he voluntarily left his employment.

[86] Furthermore, he continued to work for RPS from August to November 2008 while reporting that he was sick in order to receive benefits.

[87] I reject the Appellant’s argument that he completed these reports after losing his employment with RPS and not while he was working. According to him, he therefore made no false statements, as he was effectively not working when he completed his reports.

[88] Similarly, I reject his argument that, at the time of completing his reports in January 2008, he did not know whether his benefit claim had been accepted.

[89] The Appellant’s submissions are frivolous and do not prove that he did not knowingly make false statements.

[90] The evidence points to the contrary.

[91] The Tribunal finds that the Appellant knowingly made eight false statements during the above-mentioned periods and that these constitute misrepresentations within the meaning of section 38 of the Act.

[92] In Dunham, A-708-95, the Federal Court of Appeal held that solely the Commission had the discretionary power to impose the penalty set out in subsection 38(1) of the Act.

[93] Furthermore, the Court stated that no tribunal, Umpire or Board of Referees has jurisdiction to interfere with the Commission’s decision regarding a penalty, as long as the Commission can prove that it exercised its discretionary power judicially. In other words, the Commission must demonstrate that it acted in good faith, took all the relevant factors into consideration and set aside those that were not relevant (Purcell, A 694-94 and Shembri, A-578-02)

[94] Given that the Appellant made eight false or misleading statements, the imposition of a penalty is justified.

[95] Having reviewed the file, the Tribunal finds that the Commission exercised its discretionary power judicially when it set the penalty amount and that it took all the relevant factors into consideration.

Allocation of earnings

[96] The evidence on file is clear. The Appellant worked for Multina Inc from January 13, 2008, to February 3, 2008, and for RPS 2000 from August 24, 2008, to November 9, 2008, without reporting his earnings.

[97] In the case of both these employments, the earnings received by the claimant were wages, except for the sum of $186 paid on November 9, 2008, which was vacation pay.

[98] The sums received by the Appellant constitute earnings within the meaning of the Act and must be allocated in accordance with sections 35 and 36 of the Regulations.

[99] The Tribunal finds that the Commission allocated the earnings correctly. Consequently, the repayment of the overpayment applies.

Notice of violation

[100] Subsection 7.1(4) of the Act provides that a notice of violation may be issued when a claimant commits an act or omission for which a penalty has been imposed.

[101] The Federal Court of Appeal confirmed that the Commission has the discretionary power to apply this sanction.

[102] Subsection 7.1(5) of the Act classifies violations on the basis of the seriousness of the act or omission. Classification depends on the amount of the overpayment resulting from the act or omission in question.

[103] In this case, the Commission classified the notice of violation as serious, given the overpayment amount to take into consideration (page GD2-205).

[104] The Tribunal finds that the Commission exercised its discretion judicially and that it took into consideration all the relevant factors when it issued the notice of violation.

Conclusion

[105] This case dates back to 2008, that is, over six years ago, and has been subject to several appeals.

[106] I note that, over time, the Appellant used every means possible to contest the various decisions rendered in his case.

[107] Each time, there was a different reason: he did not receive the notice to appear on time; the notice to appear was delivered to his clothes pins box instead of his mailbox; he did not have time to adequately prepare his defence; he was unable to attend; he was detained; he could not be reached or he had moved.

[108] By not attending the hearings and by alleging a denial of natural justice on the basis of the audi alteram partem principle, that is, the right of either party to be heard, the Appellant managed to have decisions set aside or hearings postponed multiple times.

[109] I have reviewed this case at length and find that postponing the hearing yet another time is not in the interests of justice.

[110] As explained in paragraphs 9 to 14 of this document, this is why I decided to hear the appeal by giving precedence to section 6 of the Social Security Tribunal Regulations, which provides that the parties concerned must file with the Tribunal a notice of any change in their contact information without delay, and by relying on the wording of section 3, which allows the Tribunal to proceed differently if warranted by special circumstances.

Comments regarding the documentation on file

[111] I am aware that this case dates back to 2008, that is has been subject to several appeal actions and that it therefore contains a large number of documents. However, this does not excuse all of the multiple errors noted.

[112] The Tribunal’s primary mission is to deliver decisions to the interested parties in as timely a manner as possible.

[113] To this end, the Tribunal should normally have access to documents of quality that can be easily understood.

[115] Reviewing this case, finding one’s way through the numerous corrections made by the Commission and evaluating the new calculations involved arduous, thorough and painstaking work that largely exceeded what is usually required for understanding such a case.

[116] I trust that the Commission will take note of these comments and that this will improve the quality of the documents provided to the Tribunal.

Conclusion

[117] The appeal is dismissed on all issues, namely, the voluntary leaving, the allocation of earnings, the false statements, the penalty incurred and the imposition of a notice of serious violation.