Judgments

Decision Information

Decision Content

A-637-86 (T-1481-85)
Michel Brière (Plaintiff-Respondent) v.
Canada Employment and Immigration Commis sion (Defendant-Appellant)
and
Attorney General of Canada (Mis - en - cause)
INDEXED AS: BRIÈRE v. CANADA (EMPLOYMENT AND IMMI GRATION COMMISSION) (C.A.)
Court of Appeal, Marceau, Lacombe and Desjar- dins JJ.—Montréal, December 1, 1987; Ottawa, June 15, 1988.
Unemployment insurance Appeal from trial judgment
setting aside execution proceedings — Respondent defrauding Commission between 1974 and 1976 — Notice of overpayment sent in 1981, but not received as respondent had moved Execution proceedings initiated in 1985 — Appeal dismissed — Commission properly proceeding under Unemployment In
surance Act, 1971, s. 57 S. 102 inapplicable — Whether s. 120(2), providing certificate of mailing evidence of receipt, absolute or rebuttable presumption — Whether presumption applies — Effect of late notification.
Construction of statutes — Unemployment Insurance Act,
1971, s. 120(2) Certificate of mailing evidence of receipt — Whether creating absolute or rebuttable presumption — Examination of English and French versions to determine Parliament's intent.
This was an appeal from the trial judgment setting aside execution proceedings to recover unemployment insurance ben efits received unlawfully. The respondent submitted fictitious claims for unemployment insurance benefits between 1974 and 1976. The Unemployment Insurance Commission mailed a notice of overpayment in 1981, which the respondent did not receive because he had moved. In 1985, the Commission gar nished the respondent's salary. The Trial Judge held that under the Unemployment Insurance Act, 1971, section 57, the Com mission had six years in which to reconsider the fraudulent claim for benefits and a further six years from the date of notification of the amount to be repaid, to recover. However, the respondent had rebutted the presumption that a certificate of mailing is evidence of receipt created by subsection 120(2). As the notification had not been received, the Commission's right of action was lost and the respondent no longer owed anything. Subsection 49(1) provides for repayment of benefits. Subsection 49(4) provides that no amount due under this section may be recovered after thirty-six months from the date the liability arose, or seventy-two months in the case of the commission of an offence under section 47. Section 57 gives the Commission thirty-six months (or seventy-two months where a fraud was committed) within which to reconsider any claim
and calculate the amount repayable. Section 102 allows the Commission to amend any decision in any claim for benefit without restriction as to time. The Trial Judge did not refer to section 102. At common law, a right of action for the restitu tion of the proceeds of fraud subsists for thirty years from the date the fraud was discovered. As the action arose in Quebec, the appellant also relied on Article 2215 of the Civil Code which provides that all debts belonging to the Crown are prescribed after thirty years. The Trial Judge dismissed this argument, holding that a specific provision always takes prece dence over a general one. The issues were (1) whether the Commission could proceed under the Act, and if so whether section 57 or 102 applied; (2) whether the conditions of section 57 had been complied with (as the notification had not been received); (3) whether a common law right of action subsisted; (4) whether subsection 120(2) (which provides that a certifi cate of mailing is evidence of receipt) created a presumption juris tantum or juris et de jure.
Held (Marceau J. dissenting), the appeal should be dis missed, except that the declaration that the respondent owed nothing further to the appellant should be struck.
Per Lacombe J.: The issue of prescription was a red herring, as the appellant's right of action was not prescribed, even by section 49. The Commission properly proceeded under the Act. In light of the false and misleading statements made by the respondent, the case was clearly governed by subsections 49(4) and 57(6), which give the Commission two additional periods of thirty-six months each in which to reconsider claims and
seek repayment.
The Commission was required to proceed under section 57. Section 102 had no application. While section 102 permits the Commission to amend its decisions, it does not deal with recovery of overpayments and prescription of claims. These are dealt with in section 49, which necessarily result in the applica tion of section 57. If the Commission exercises the power to reconsider under section 57, it acquires the right to recover an overpayment under section 49. Section 102 does not refer to past or future consequences of the new decision.' According to the maxim generalia specialibus non derogant, section 57 applies to the exclusion of section 102.
Section 102 is an administrative provision which can be used to re-open a particular case and correct a decision when new facts are presented which were not before the Commission, board of referees or umpire. Under section 57, the Commis sion's powers are much broader, and it can amend, within a period of three or six years, a whole series of claims upon its own initiative. The power to reconsider in section 57 may be exercised "notwithstanding section 102". The powers under the two sections are not interchangeable.
The Trial Judge correctly held that subsection 120(2) creat ed a juris tantum or rebuttable presumption. The law in general does not favour the creation, particularly by judicial interpretation, of juris et de jure presumptions, in the absence of specific wording which also must be unequivocal in both languages. The absolute meaning of the expression "fait foi" in French should not restrict the meaning of the words "is evi dence" in English, as if they read "is conclusive evidence". Furthermore, in other sections where Parliament intended to create an irrebuttable presumption, it added qualification (i.e. "without further proof"). Also, "notify" means "to inform expressly". Finally, the decision as to entitlement is subject to appeal to a board of referees. If subsection 120(2) created a juris et de jure presumption, a claimant would not obtain an extension of the time limit and would lose his right of appeal.
The notification of the balance to be repaid had to be given before March, 1982. The failure to notify the respondent within the time prescribed was fatal to the Commission's right to recover. Late notice under section 57 bars and renders null any remedy exercised under section 49.
Finally, the Trial Judge exceeded the limits of the action in holding that the respondent no longer owed anything to the appellant. He no longer owed anything to the Commission under the terms of the Act. It did not have to be decided whether the Commission has a remedy at common law against the respondent in the ordinary courts.
Per Desjardins J.: Contrary to the English "is evidence of" in subsection 120(2), the phrase "fait foi de" means that the certificate of mailing constitutes evidence that the notice was received, without further proof. Although the substantive provi sions dealing with a person's right to receive benefit should be construed liberally, there is no reason to interpret the adminis trative provisions in Part V so as to systematically favour the claimant. Parliament's intention in creating section 120 was to facilitate the Commission's task of authenticating documentary evidence. Subsection 120(2) was necessarily intended to create a juris et de jure presumption. However, it only operates "in the ordinary course of mails", so that it allows for circum stances that might prevent the application of the presumption to be argued. The presumption cannot be applied if the address is incorrect.
Per Marceau J. (dissenting): The respondent was both a thief, who embezzled the Commission's funds, and a claimant who received benefits to which he was not entitled. As the former he was obliged to repay the Commission under common law rules under which the obligation will subsist until payment is made (subject to Article 2232 of the Civil Code). The Commission chose to pursue the respondent as the latter under section 57 of the Act.
Section 102 does not apply. It cannot give rise to a decision capable of creating in an independent and absolute manner, a certain, liquid and payable obligation to repay. Only section 57 can do that. By correcting the terms of a prior decision, a decision under section 102 may bring to light the existence of an obligation to repay benefits. However, the only basis in the Act to make such repayment is in subsection 49(4).
Section 57 allows the Commission to reconsider a claim and establish a new and independent obligation to repay within a specific time after payment of the benefit. It does not refer to a prescription that would extinguish a debt. The expiry of the prescribed time only means that the Commission will no longer be able to proceed on its own authority and to establish automatically a debt that is immediately recoverable. It would have to seek its remedy in the common law courts.
The notification establishes the starting point of another time limit which is a prescription which extinguishes the debt: the time limit established by subsection 49(4). From the time the reconsideration process is completed, the Commission has three or six years to recover its debt. A notification which does not reach the debtor has no such effect: the debt resulting from the reconsideration must still be extinguished after three or six years.
Subsection 120(2) creates an absolute, irrebuttable presump tion. The use of "is evidence that" would be redundant other wise, since such a presumption exists naturally. The presump tion is, however, subject to the condition that the addressee is correctly identified, which requires a name which is likely to relate to a specific natural person at the address to which the letter is delivered. Subsection 120(2) did not operate here.
The Commission remained within the time limits given to it in the Act. The reconsideration process was completed when the notification was mailed so it could relate to payments made six years before. Because the execution proceedings were undertaken by letter dated May 8, 1985, they occurred before the expiry of the six-year time limit.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Civil Code of Lower Canada, arts. 1158, 1161, 1207, 1245, 2215, 2232.
Criminal Code, R.S.C. 1970, c. C-34, ss. 338(1), 663(2)(e).
Employment and Immigration Reorganization Act, S.C. 1976-77, c. 54, s. 10.
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. l0, s. 38. Official Languages Act, R.S.C. 1970, c. O-2, s. 8. Unemployment Insurance Act, 1971, S.C. 1970-71-72, c. 48, ss. 2(1)(b) (as am. by S.C. 1976-77, c. 54, s. 26), 17, 49, 55(1) (as am. by S.C. 1974-75-76, c. 80, s. 19), (9), (as am. idem), 57 (as am. idem, s. 20; S.C. 1976-77, c. 54, s. 48), 80 (as am. by S.C. 1984, c. 1, s. 124), 94, 102, I1 1, 112 (as am. by S.C. 1980-81-82-83, c. 47, s. 49), 120(2) (as am. by S.C. 1974-75-76, c. 80, s. 35).
CASES JUDICIALLY CONSIDERED
APPLIED:
R. v. Compagnie Immobilière BCN Ltée, [ 1979] 1 S.C.R. 865; Food Machinery Corp. v. Registrar of Trade Marks, [1946] 2 D.L.R. 258 (Ex. Ct.).
DISTINGUISHED:
Brito v. Canada (Minister of Employment and Immigra tion), [1987] 1 F.C. 80 (C.A.).
CONSIDERED:
Attorney General of Canada v. Rivermont Construction Company, judgment dated December 21, 1982, Quebec Superior Court, SCM No. 05-011373-782, not reported.
REFERRED TO:
E. H. Price Limited v. The Queen, [ 1983] 2 F.C. 841 (C.A.); White v. Weston, [1968] 2 Q.B. 647 (C.A.); R. v. Varnes, [1975] F.C. 425 (T.D.); Hills v. Canada (Attor- ney General), [1988] 1 S.C.R. 513; Abrahams v. Attor ney General of Canada, [ 1983] 1 S.C.R. 2; Rose (1981) CUB 6266; Miedus (1983) CUB 7983; Filion (1980) CUB 5730.
AUTHORS CITED
Nadeau, André and Léo Ducharme Traité de Droit civil du Québec, vol. IX, Montréal: Wilson et Lafleur, 1965.
COUNSEL
André Champagne for plaintiff (respondent). Carole Bureau for defendant (appellant).
SOLICITORS:
Lapointe, Shachter, Champagne & Talbot, Montréal, for plaintiff (respondent).
Deputy Attorney General of Canada for defendant (appellant).
The following is the English version of the reasons for judgment rendered by
MARCEAU J. (dissenting): The significance of this appeal from a declaratory judgment of the Trial Division [(1986), 10 F.T.R. 80] extends well beyond the immediate solution to the dispute be tween the parties. It actually raises a problem in coordinating and interpreting various provisions of the Unemployment Insurance Act, 1971, S.0 1970-71-72, c. 48 (the Act) that are now in force, so that the treatment given to the problem is likely
to have an effect on important aspects of adminis trative practice. The issue is the following.
Between October 1, 1974 and March 15, 1976,' Michel Brière, the respondent, succeeded in extort ing a significant amount of money from the appel lant Commission, estimated at $35,588. With the aid of the connivance of an employee of the Com mission, he submitted claims for unemployment benefits payable in false names, and had them accepted using forged documents; he then collect ed the proceeds clandestinely. This swindle was eventually brought to light by Royal Canadian Mounted Police investigators who signed charges against him and his accomplice in criminal court on September 26, 1977 under subsection 338(1) of the Criminal Code [R.S.C. 1970, c. C-34]. Brière himself quickly acknowledged his guilt and on October 24, 1977 sentence was pronounced by a judge of the Court of Sessions of the Peace requir ing him, inter alia, to reimburse to the Commis sion the sum of $15,000 within seven days (as is permitted under paragraph 663(2)(e) of the Criminal Code). His accomplice, on the other hand, chose to wait and did not admit the truth of the charges against her until February 16, 1981, but at that point she too was required to reimburse the sum of $5,000 to the Commission immediately.
Once the criminal proceedings were finished, the Commission wanted to recover the full amount of the monies of which it had been defrauded. Rely ing on a prerogative given to it by the Act to reconsider things that had been done earlier, by formal decisions dated May 25, 1981 it retroac tively cancelled all these fictitious benefit periods from which Brière had fraudulently profited. The effect of these decisions was to confirm officially that all of the amounts paid on the basis of these cancelled benefit periods constituted "overpay- ments" that were to be repaid. On June 29, 1981 the Commission mailed a notice to Brière notifying him of the balance that remained payable on the overpayment, after the amounts collected as a result of the criminal sentences were deducted, and demanding that payment be made. There was no
' We must rely on the dates in the recital of the facts because of the nature of the problem which, as we shall see, concerns a prescription.
response to this notice or to the three others that followed it, and so the Commission finally (after four years!) decided to take execution proceedings. Accordingly, on May 8, 1985, using the special power that it has to attach without a court order (sections 80 [as am. by S.C. 1984, c. 1, s. 124] and 112 [as am. by S.C. 1980-81-82-83, c. 47, s. 49] of the Act), it applied directly to Brière's employer and asked it to withhold and to pay regularly to the Receiver General of Canada, in satisfaction of its debt, the attachable portion of its employee's salary. On July 2, 1985, Brière applied to the Trial Division for a judgment declaring that the attach ment addressed to his employer was illegal and void, on the ground that the debt he had owed to the Commission was now prescribed. Judgment was rendered granting his application on Septem- ber 26, 1986. The appellant is here disputing the merits of that judgment.
Before looking more closely at the substance of that judgment, it " will be useful to review the principal sections [sections 49, 57 (as am. by S.C. 1974-75-76, c. 80, s. 20; 1976-77, c. 54, s. 48), 102] of the Act on which the parties based their arguments before the Trial Judge—and their argu ments here as well—so that we have them in mind. I shall set them out in their entirety. 2
49. (1) Where a person has received benefit under this Act or the former Act for any period in respect of which he is disqualified or any benefit to which he is not entitled, he is liable to repay an amount equal to the amount paid by the Commission in respect thereof.
(2) All amounts payable under this section or section 47, 51 or 52 are debts due to Her Majesty and are recoverable as such in the Federal Court of Canada or any other court of com petent jurisdiction or in any other manner provided by this Act.
(3) Where a benefit becomes payable to any claimant, the amount of any indebtedness described in subsection (1) or (2) may, in the manner prescribed, be deducted and retained out of the benefit payable to him.
'Some other provisions were in issue, such as those relating to the special powers of the Commission to concerning execu tion (sections 80 and 112 of the Act, as noted above) and a provision concerning sending the notice by mail, which I shall cite later, but those sections are not involved as directly in the discussion.
(4) No amount due as a debt to Her Majesty under this section may be recovered after thirty-six months from the date on which the liability arose unless in the opinion of the Com mission an offence under subsection (1) of section 47 has been committed in connection therewith in which case no such amount may be recovered after seventy-two months from the date on which the liability arose.
57. (1) Notwithstanding section 102 but subject to subsec tion (6), the Commission may at any time within thirty-six months after benefit has been paid or would have been payable reconsider any claim made in respect thereof and if the Com mission decides that a person has received money by way of benefit thereunder for which he was not qualified or to which he was not entitled or has not received money for which he was qualified and to which he was entitled, the Commission shall calculate the amount that was so received or payable, as the case may be, and notify the claimant of its decision.
(2) Any decision made by the Commission pursuant to subsection (1) is subject to appeal under section 94.
(3) If the Commission decides that a person has received money by way of benefit for any period in respect of which he was not qualified or money by way of benefit to which he was not entitled, the amount therefor as calculated under subsection (1) is the amount repayable under section 49.
(4) If the Commission decides that a person was qualified and entitled to receive money by way of benefit, and such money was not paid, the amount thereof as calculated under subsection (1) is the amount payable to the claimant.
(5) The day that the Commission notifies the person of the amount calculated under subsection (1) to be repayable under section 49 shall, for the purposes of subsection (4) of section 49, be the date on which the liability arises thereunder.
(6) Where, in the opinion of the Commission, a false or misleading statement or representation has been made in con nection with a claim, the Commission has seventy-two months within which to reconsider the claim under subsection (1).
102. The Commission, a board of referees or the umpire may in respect of any decision given in any particular claim for benefit rescind or amend the decision on the presentation of new facts or on being satisfied that the decision was given without knowledge of, or was based on a mistake as to some material fact.
With these provisions in mind, it will undoubt edly be easier to follow the Judge's reasoning. Here then is a summary of his reasons.
Once he had set out the facts, and reviewed the applicable legislation, the Judge rapidly stated the relevant points that he took from the Act, in two
paragraphs. He expressed himself as follows (page 83):
Essentially, the Employment and Immigration Commission has six (6) years in cases of fraud such as the one at bar to reconsider any claim for benefits and a further six (6) years, again in a fraud situation, to recover the overpayment. These time limits are strict. The only question which arises is as to when the time limits begin to run.
In the case of reconsideration of claims for benefits, the time limit runs from the time when benefits were paid (see s. 57(1)). Referring to the evidence presented in the case at bar, it appears that the fraudulent acts were committed between October 1, 1974 and March 15, 1976 so that, again under s. 57(1) of the Act, the Commission would have until March 15, 1983, to reconsider the claims for benefits. After that date it could no longer reconsider the claim and would therefore be barred from instituting proceedings to recover the overpay- ment.
The Judge then came to what he considered to be the difficulty. He continued [at page 83]:
What makes the present situation especially complicated is that, in order to interrupt the prescription and to validly initiate the machinery for reconsideration contained in s. 57, the Com mission must notify a person who has been overpaid benefits of his obligation to reimburse them. This notification, or the lack of it, is the bone of contention in the case at bar. [Emphasis is that of the Judge.]
The Judge explained that the plaintiff, Brière, denied having received the notice that the Com mission had sent to him, and an unreceived notice cannot constitute notifcation within the meaning of section 57, that is, proper notification that would interrupt the prescription. Therein lay the nub of the case, according to the Judge: was there notification? It is not that Brière's statement was doubtful, the Judge hastened to add: this is con firmed by the fact that he was no longer living at the address where the notice had been sent. It is that we might wonder whether this evidence was not, as counsel for the Commission argued, prohib ited by virtue of subsection 120(2) [as am. by S.C. 1974-75-76, c. 80, s. 35] of the Act, which provides:
12o....
(2) For the purposes of this Act and the regulations and any proceedings thereunder, a document purporting to be a certifi cate of the Commission or an officer or employee of the Commission to the effect that a notice, request, demand or other document was sent by mail is evidence that the notice, request, demand or other document was received by the addres see in the ordinary course of the mails.
However, the Judge did not believe that this could be the case; he stated that he was of the view that the "presumption of receipt" created by this provi sion of subsection 120(2) is only a simple presump tion which leaves open the possibility of proving the contrary. Because he accepted Brière's state ment, he had to find that the evidence that the notice required by section 57 in order to interrupt the prescription was never given. He had then necessarily to conclude, as he wrote in his formal judgment:
1 allow the action by the plaintiff for a declaratory judgment and declare that he owes nothing further to the defendant. The attachments made by the defendant in the case at bar are declared to be unlawful and are set accordingly. Each party shall pay its own costs.
I said at the outset that the significance of this appeal arose from the fact that the provisions implicated were of broad practical scope. This has undoubtedly been observed. These provisions were in fact enacted by parliament in consideration of the fact that, in the exercise of its responsibilities, the Commission would necessarily be particularly vulnerable to all sorts of errors, whether commit ted spontaneously or caused by incorrect, equivo cal, incomplete or false statements made by claim ants themselves, or even, on occasion, resulting from fraudulent manoeuvres by outsiders, as here. To understand this vulnerability, we need only think of the enormous number of claims which the Commission must process on a daily basis; the fact that this handling must be done by an army of officers at every level, spread out in numerous local offices; that these officers must make deci sions often on the basis simply of the statements of the individuals concerned, and must act with all the speed that is required by the fact that most of the time they are dealing with people who have no other resources. It is easy to understand that any decision that may affect the meaning and effect of those provisions of the Act which permit the Com mission to go back and correct its errors is of paramount importance to it. This appeal quite clearly invites us to make such a decision.
However, before we begin this analysis of the provisions of the Act in issue, we must make a preliminary comment. It has been observed that the judgment at trial contains a general statement
to the effect that the respondent owes nothing further to the Commission. I must say, with respect, that in my view this statement is, on its very face, clearly in error. It appears to me to be undeniable that the respondent has an obligation to repay the Commission, and that under the common law rules this obligation will subsist so long as, and for whatever time, payment is not made, because the Queen is the creditor, through the Commission, and in theory a debt to the Queen cannot be prescribed (this being said, subject to the effect that the principle in Article 2232 of the Civil Code of Lower Canada may have in relation to the federal Crown). It is the manner in which the Commission proceeded in order to establish the debt and force repayment which may be a prob lem. The Commission here did not proceed by bringing an action before the common law courts; it used the Unemployment Insurance Act, 1971 and the special powers thereunder on which it could rely, particularly the right to execute its claim itself and to obtain recovery by attachment. The Judge could rule solely on this manner of proceeding, and the question before him was not whether the debt was prescribed, as it was certain ly not, but whether the Commission was still within the time limit prescribed by the Unemploy ment Insurance Act, 1971 for claiming it as it did, that is, by its own authority and without other formalities.
I should even say that I myself at one point wondered whether we did not have to acknowledge that the attachment was illegal on the ground that, in the circumstances of the case, the Commission was not authorized to rely, in seeking to recover its debt, on the provisions contained in this special Act which exceed those of the common law, for the administration of which Act it had been granted special prerogatives. Could the Commission not use these extraordinary powers only when it was dealing with a claimant or former claimant under the Act? I no longer hesitate, because it seems to me that while it is true that the respondent was never overtly a claimant, nonetheless he himself received monies paid as benefit, and the Commis sion's right to consider him accordingly as a claim ant under fictitious names cannot be disputed. We must see Brière's situation as in the nature both of a thief who embezzled the Commission's funds to
his own benefit and of a claimant who had benefits paid to him to which he was not entitled by making incorrect statements about his status and his activities. This hybrid situation gave the Com mission a choice in enforcing its debt between applying to the common law civil courts, the only choice, incidentally, that would have been avail able to it in a pure and simple case of embezzled funds, and the remedy under the special provisions of the Unemployment Insurance Act, 1971, which Parliament provided for cases of overpayment to claimants on the basis of incorrect statements. The Commission could have brought proceedings for repayment and proved its debt before the Superior Court, in which case the Court could certainly not have declined jurisdiction. It chose rather to pro ceed under its Act, and section 57 thereof, and I do not see any basis for denying it the right to do so.
Let us now come to the problem raised in the appeal, and ask whether in using the provisions of its Act the Commission complied with the require ments therein respecting the necessary formalities and the time limits set for executing them.
The first step required is to determine the provi sions of the Act under which the Commission could retroactively cancel the fictitious benefit periods, as it did, and thereby formally establish the existence of an "overpayment" which is the subject-matter of a certain, liquid and payable obligation that may be recovered directly by attachment. Counsel for the appellant argued that these provisions are found in section 102, which contains no reference to a time limit, rather than section 57, as the Judge believed. They noted that both sections provide for the possibility of retroac tively amending a decision, and the two sections may perfectly well be taken to operate independ ently. In fact, while section 57 is written in general terms and allows for reconsideration of any kind of error, regardless of when it occurred, section 102 can be applied only in the event that a new fact is discovered, this also being the explanation for why there is no time limit during which it is available. The appellants contend that in a case like the one at bar, where the conditions in which section 102 applies are manifestly present, time limits are not
an issue, and we should not concern ourselves with them.
I think that the suggestion put forward by coun sel for the appellants that we rely on section 102 rather than section 57 rests on an incorrect reading of the Act. As I understand section 102, it has no role to play here. This section, which, we should note, is found in the final Part of the Act, contain ing purely administrative provisions that apply particularly to appeals to the board of referees and the umpire, cannot give rise to a decision capable of creating, by itself and in an independent and absolute manner, a certain, liquid and payable obligation to repay. By correcting the terms of a prior decision, a decision under section 102 may well have the effect of attesting that a payment was made improperly because at the time it was based on factual information that was incorrect or incomplete or misunderstood, and thereby bring to light, so to speak, the existence of an obligation to repay on the part of someone who received such a payment without being entitled thereto. However, the basis in the Act for such an obligation to make repayment can be found only in section 49, subsec tion 4 of which provides a firm time limit for execution which ran from the time of payment. Moreover, it is precisely because a decision under section 102 was not intended to affect the date when an obligation to repay arose, or the time given to the Commission for execution, that it was entirely inappropriate to wrap it in a time limit of some sort, or to tie it in some fashion to section 49. Section 57 alone gives the Commission the power to make a decision which in itself creates a new obligation to repay that is certain, liquid and payable. The Trial Judge was correct in not dwell ing on section 102.
Having settled this first point, we must now ask what the effect is of the time limit set out in section 57, the first, third and final subsections of which I shall repeat, for convenience:
57. (1) Notwithstanding section 102 but subject to subsec tion (6), the Commission may at any time within thirty-six months after benefit has been paid or would have been payable reconsider any claim made in respect thereof and if the Com mission decides that a person has received money by way of benefit thereunder for which he was not qualified or to which
he was not entitled or has not received money for which he was qualified and to which he was entitled, the Commission shall calculate the amount that was so received or payable, as the case may be, and notify the claimant of its decision.
(3) If the Commission decides that a person has received money by way of benefit for any period in respect of which he was not qualified or money by way of benefit to which he was not entitled, the amount therefor as calculated under subsection (1) is the amount repayable under section 49.
(6) Where, in the opinion of the Commission, a false or misleading statement or representation has been made in con nection with a claim, the Commission has seventy-two months within which to reconsider the claim under subsection (I).
As we have seen, the learned Trial Judge con sidered that this thirty-six or seventy-two-month time limit within which alone the Commission may act under the authority of section 57 is a prescrip tion, and that the role of the notification required was to interrupt the prescription. It appears to me, and I say this with respect, that this interpretation is wrong. There is no reason not to let the text say precisely what it says, which is that the Commis sion is free to reconsider a claim which resulted in the payment of benefit and to determine that the claim was initially wrongly decided and dealt with incorrectly, provided that it does so within a spe cific time after the payment. Nowhere does the text refer to a prescription that would extinguish a debt. It might doubtless be said that if there really was at the outset an improper payment, strictly speaking, an obligation also arose at the same time to repay under section 49. However, before the reconsideration, this obligation, if such there were, was not liquid nor in practice payable, because it had not even been established. It is difficult to imagine a debt for which the prescription began to run even before it was known to exist. Put in context, the provision is clear: all it provides is that the Commission has thirty-six or seventy-two months to reconsider a claim and establish, on its own authority, where appropriate, a new and independent obligation to repay, which it may enforce by the methods this Act has made avail able to it which exceed those of the common law. The expiry of the three or six years has one effect only: the Commission will lose the opportunity to proceed itself on its own authority and to establish
automatically a debt that is immediately recover able. Even though the Commission is certain, for example, that it has been the victim of deception or theft in relation to a payment dating back more than six years, it will no longer be able to act on its own authority and take the law into its own hands. Not, certainly, that the Commission has in such a case lost all chance of recovering, and the defraud- er can go away without worrying. The Commission could not lose its remedy before it even knew that it had one. However, it must now seek its remedy in the common law courts. This time limit cannot properly be considered to be a prescription which extinguishes a debt.
This brings us to the third point: what is the role and the effect of the notification that is required? It is certainly not to interrupt the prescription, if no prescription is in fact running. It is first, natu rally, to complete the procedure by advising the claimant of the amount that he owes as a result of the reconsideration. But it is also—and this is of direct concern to us—to establish the starting point, the "date a quo", of another time limit which is overtly and clearly a prescription which extinguishes the debt: the time limit established by subsection 49(4) of the Act. From the time when the reconsideration process establishing the debt for overpayment, and the obligation to repay, is completed the Commission has a fixed time limit of three or six years to recover its debt. This prescription extinguishes the debt, and naturally operates against the Commission, because its effect is to make the debt that the reconsideration process established "unrecoverable".
Finally, we arrive at the question that the Trial Judge saw as the very crux of the issue: what is the effect of a notification which, although it was given in good faith and in accordance with the Act, did not succeed in its primary goal, to notify the debtor? There is no doubt about the answer. There can be no effect flowing from it in relation to the starting point of the prescription extinguish ing the debt under subsection 49(4): the debt resulting from the reconsideration must still be extinguished after three or six years. The only possible effect will clearly be an effect in favour of the debtor, and we are thinking first of the starting
point for the time limit for appealing under subsec tion 57(2), and then, eventually, of interest, or recovery costs, if they should arise. There is there fore no reason at all to be concerned about this in relation to the question before us here.
We need go no further to be able to find from the facts of the case the answer to the question posed. However, I will take the liberty first of expressing my view parenthetically on a point that the argument at trial raised to the rank of a crucial issue: I would like to discuss the nature of the presumption created by subsection 120(2) of the Act, the terms of which I shall repeat:
120....
(2) For the purposes of this Act and the regulations and any proceedings thereunder, a document purporting to be a certifi cate of the Commission or an officer or employee of the Commission to the effect that a notice, request, demand or other document was sent by mail is evidence that the notice, request, demand or other document was received by the addres see in the ordinary course of the mails.
We have seen that the Trial Judge considered the presumption created by subsection 120(2) of the Act to be merely a simple (juris tantum) legal presumption, which could be demolished by evi dence to the contrary. I will take the liberty here of expressing my disagreement, with respect. It does not appear to me to be possible that it could be anything other than an absolute and irrebut- table presumption. The use of the words "is evi dence that [it] ... was received" ["fait foi de sa réception"] is determinative on this point: these words express a substantive rule, and not simply an evidentiary rule.' It is hard to see what the rule would add if it were merely a simple presumption, since such a presumption exists naturally, in prac tice, as a presumption of fact arising from the simple mailing of a letter. Clearly, what the legis lator intended was to exempt the Commission from the obligation—which could be very onerous because of the numbers involved—of ensuring that the notice that it mailed was in fact received, and that the addressee became aware of it, a goal which would certainly not be achieved if it could be overcome by a simple statement by the addres see that the letter did not reach him or that he was
' On this point, see Brito v. Canada (Minister of Employ ment and Immigration), [1987] 1 F.C. 80 (C.A.), at pp. 92-93.
not aware of it: the Commission could never rely on the mails. This being said, however, it seems clear that the rule could only operate under limited circumstances. The presumption is that mailing is evidence of receipt by the addressee, and so the essential condition is that the addressee be correct ly identified and, since we are dealing with the mails, correct identification requires not only a name but a name which, at the address to which the letter is delivered, is likely to relate to a specific natural person. This condition is normally easy to fulfil, since a claimant is normally required to supply the Commission with the mailing address where he receives his mail (subsection 55(9) [as am by S.C. 1974-75-76, c. 80, s. 19] of the Act). 4 However, this condition is not automatic, and it is clear here that it was not fulfilled. One additional comment, however, is necessary on this point.
Could it be objected, as suggested by counsel for the Commission, that if in fact the address was not correct, Brière had not complied with the obliga tion imposed on him as a claimant to supply the Commission with his mailing address? I think not. I leave aside the fact that Brière, himself, under his real name and in his own capacity, never presented himself as a claimant, and therefore did not have occasion to give his address. I shall more simply say that the objection could only be rele vant if a claimant's failure to supply his address could have the effect of making the presumption in subsection 120(2) applicable even in the event that mail was sent to the wrong address, provided only that the officers of the Commission believed in good faith that the address was correct. I think that a rule that is so radical and so heavy with consequences as one that is established by an irrebuttable presumption cannot be thus extended. The text of subsection 120(2) itself does not permit this; specifically, the sanction in the event that a claimant fails to comply with the various procedural requirements set out in section 55 [as am. by S.C. 1974-75-76, c. 80, s. 19] of the Act, including the requirement that he supply his address, is expressly defined in the initial subsec-
^ This text reads as follows:
55....
(9) A claimant shall supply the mailing address of his
normal place of residence unless otherwise permitted by the
Commission.
tion of that section, and consists strictly in the suspension of entitlement to benefit. This initial subsection reads as follows:
55. (1) A claimant who fails to fulfil or comply with a condition or requirement under this section is not entitled to benefit for as long as such condition or requirement is not fulfilled or complied with.
In my opinion, the rule in subsection 120(2) cannot operate here.
If we now return to the facts of the case, and examine them in relation to the provisions of the Act we have discussed, I think that it is now easy to see that, despite its slowness, the Commission remained within the time limits given to it in the Act.
The benefits based on fictitious claims were all paid between October 1, 1974 and March 15, 1976. The reconsideration process, including notification, was completed on June 29, 1981, and so it could relate to all the monies paid after June 29, 1975, six years before. That was undoubtedly amply sufficient, given that payments made in satisfaction of criminal sentences were to be imputed automatically (Civil Code of Lower Canada, Articles 1158 et seq) to the oldest debt. Finally, because the execution proceedings in the form of the attachment in question in the action were undertaken by letter dated May 8, 1985, they occurred before the expiry of the six-year time limit provided in section 49 of the Act.
Accordingly, in my opinion, the trial judgment is incorrect. The Court should set it aside and declare the attachment to be valid and binding.
* * *
The following is the English version of the reasons for judgment rendered by
LACOMBE J.: This is an appeal from a judgment of the Trial Division setting aside the forcible execution proceedings taken by the appellant to recover from the respondent the balance of the amount of the unemployment insurance benefits which he received unlawfully.
On September 26, 1977, the respondent and his accomplice were charged that they did, between October 1, 1974 and March 15, 1976, defraud the
appellant of the sum of $35,588. Upon pleading guilty, he was sentenced on April 11, 1979 by the Court of Sessions of the Peace to reimburse the sum of $15,000 to the appellant within seven days. On February 16, 1981 the same Court ordered his accomplice to reimburse the sum of $5,000 within one year. Restitution of these sums was made within the time fixed.
With the complicity of his co-accused, who was a public servant employed by the appellant, the respondent had conceived the scheme of submit ting claims for unemployment insurance in the name of various fictitious persons, giving false addresses and using false social insurance cards. He cashed or deposited the benefit cheques in various places where he had opened bank accounts in the name of each fictitious claimant.
On May 25, 1981, the appellant proceeded under sections 17, 57 and 102 of the Unemploy ment Insurance Act, 1971, as it states in its plead- ings, and cancelled all the benefit periods claimed by the respondent and his accomplice which had made it possible for them to receive the unemploy ment insurance benefits unlawfully.
On June 29, 1981, the appellant informed the respondent of the balance of the benefits that he had to repay. Notices were sent to him on May 15, 1984 and February 11, 1985. On March 28, 1985, a certificate was filed in the Federal Court of Canada pursuant to section 112 of the Act, stating that the plaintiff owed the sum of $15,726.42, and by application to a third party on May 8, 1985, under the same section the appellant garnished the attachable part of his salary in the hands of his employer. It was then that the respondent, alleging that his debt was prescribed, brought an action for a declaration that the recovery proceedings brought against him by the appellant were unlaw ful and void.
In allowing the action, the Trial Division essen tially held that under the provisions of section 57 of the Unemployment Insurance Act, 1971 the appellant had six years in which to reconsider the fraudulent claim for benefits and that it had a further six years to recover, from the date on which the respondent was notified of the amount that he had to repay. The Trial Judge decided,
however, that this notification had not in fact been received by the respondent, and was therefore ineffective in preserving the appellant's right of action. Accordingly, he stated that the respondent no longer owed anything, and he set aside the garnishment of his salary effected by the appellant.
The relevant provisions of the Unemployment Insurance Act, 1971 are the following:
49. (1) Where a person has received benefit under this Act or the former Act for any period in respect of which he is disqualified or any benefit to which he is not entitled, he is liable to repay an amount equal to the amount paid by the Commission in respect thereof.
(2) All amounts payable under this section or section 47, 51 or 52 are debts due to Her Majesty and are recoverable as such in the Federal Court of Canada or any other court of com petent jurisdiction or in any other manner provided by this Act.
(3) Where a benefit becomes payable to any claimant, the amount of any indebtedness described in subsection (1) or (2) may, in the manner prescribed, be deducted and retained out of the benefit payable to him.
(4) No amount due as a debt to Her Majesty under this section may be recovered after thirty-six months from the date on which the liability arose unless in the opinion of the Com mission an offence under subsection (1) of section 47 has been committed in connection therewith in which case no such amount may be recovered after seventy-two months from the date on which the liability arose.
57. (1) Notwithstanding section 102 but subject to subsec tion (6), the Commission may at any time within thirty-six months after benefit has been paid or would have been payable reconsider any claim made in respect thereof and if the Com mission decides that a person has received money by way of benefit thereunder for which he was not qualified or to which he was not entitled or has not received money for which he was qualified and to which he was entitled, the Commission shall calculate the amount that was so received or payable, as the case may be, and notify the claimant of its decision.
(2) Any decision made by the Commission pursuant to subsection (1) is subject to appeal under section 94.
(3) If the Commission decides that a person has received money by way of benefit for any period in respect of which he was not qualified or money by way of benefit to which he was not entitled, the amount therefor as calculated under subsection (1) is the amount repayable under section 49.
(4) If the Commission decides that a person was qualified and entitled to receive money by way of benefit, and such
money was not paid, the amount thereof as calculated under subsection (1) is the amount payable to the claimant.
(5) The day that the Commission notifies the person of the amount calculated under subsection (1) to be repayable under section 49 shall, for the purposes of subsection (4) of section 49, be the date on which the liability arises thereunder.
(6) Where, in the opinion of the Commission, a false or misleading statement or representation has been made in con nection with a claim, the Commission has seventy-two months within which to reconsider the claim under subsection (1).
102. The Commission, a board of referees or the umpire may in respect of any decision given in any particular claim for benefit rescind or amend the decision on the presentation of new facts or on being satisfied that the decision was given without knowledge of, or was based on a mistake as to, some material fact.
The least that might be said about these sections is that they do not sin by excess of clarity and simplicity.
The appellant's first objection to the judgment under appeal raises an important question of inter pretation. The Trial Judge is criticized for having avoided section 102 of the Act, which authorized the appellant to rescind or amend its decisions without requiring it to comply with any time limit or particular formality in order to do so. Given that the appellant did not wish to recover an overpayment of benefit, but rather to obtain resti tution of the balance of the proceeds of a fraud of which it had been the victim, its right of action against the respondent was prescribed at common law only after thirty years from the date on which the fraud was discovered and its effects fully determined.
The action arose in the province of Quebec, and so the appellant relied in support of this argument on the unreported decision' rendered on December 21, 1982, by Hugessen J., then Associate Chief Justice of the Superior Court of Quebec and now of this Court, in Attorney General of Canada v. Rivermont Construction Company, who decided that in a case of fraud Article 2215 [Civil Code of
5 SCM No. 05-011373-782.
Lower Canada] 6 applies to a debt owed to the federal Crown, as does the maxim contra non valentem agere nulla currit prescriptio, which is recognized in the first paragraph of Article 2232' of the Civil Code of Lower Canada.
The Trial Judge dismissed this argument [at page 85], stating:
Counsel for the defendant then maintained that since ftiis was a case of fraud the Crown, here represented by the defendant, had thirty years in which to reconsider and recover an overpay- ment. In my view the thirty-year prescription only applies in the absence of a specific provision in the particular statute. It is the general rule: but as the enabling legislation clearly men tions strict deadlines, I do not see how such an argument can be made. A specific provision always takes priority over a general one.
In respect both of procedure and of the actual merits of the argument made, there was no error on the part of the Trial Judge. Action was brought against the respondent not at common law but according to the procedure specifically provided in the Unemployment Insurance Act, 1971. His action for a declaratory judgment impugned the validity of this procedure. In order to decide the action before him, the Judge had only to determine whether the appellant's remedy was prescribed under the provisions of the very Act on which it relied in claiming its debt. Like the Trial Judge, we need not ask whether action could have been brought against the respondent at common law. It was not. This question is therefore not before the Court at present. In order to dispose of the appeal, it is sufficient to decide whether the appellant could rely on the Unemployment Insurance Act, 1971 and whether the Trial Judge erred in holding that the appellant had not followed its essential provisions.
The argument put forward by the appellant is that sections 57 and 102 of the Act appear to cover the same ground, so that the Commission may, on the one hand, "reconsider any claim made in
6 2215. All arrears of rents, dues, interest and revenues and all debts and rights, belonging to the crown, not declared to be imprescriptible by the preceding articles, are prescribed by thirty years.
Subsequent purchasers of immoveable property charged therewith cannot be liberated by any shorter period.
7 2232. Prescription runs against all persons, unless they are included in some exception established by this code, or unless it is absolutely impossible for them in law or in fact to act by themselves or to be represented by others.
respect [of such benefits]", and on the other hand, "in respect of any decision given in any particular claim for benefit rescind or amend the decision". These two provisions amount to a useless repeti tion, at least in part, and this redundancy must have been intended by Parliament for specific reasons. Section 102 remains available to it pre cisely because no time is prescribed therein for application of the section, while section 57 includes specific constraints and formalities. The Commis sion argues that this section has the effect at least of preserving for it, in cases of fraud like the case at bar, even for the purpose of the aplication of the Act, the benefit of the long prescription in Article 2215 and of the principle set out in Article 2232 of the Civil Code of Lower Canada.
This argument cannot be upheld. In the Unem ployment Insurance Act, 1971, Parliament legis lated fully on the right to recover unemployment insurance benefit overpayments and the prescrip tion of resulting debts to the Crown, of which the Commission is an agent. 8 The relevant provisions of the Act are a complete code in themselves, and when the Commission relies on them they govern the establishment and recovery of its debts, to the exclusion of the common law rules. Because there is nothing in the Act to indicate that the common law rules can be relied on in addition to the prescriptions contained in the Act, it appears from the terms of the second paragraph of section 38 of the Federal Court Act, R.S.C. 1970 (2nd supp.), c. 10, 9 that the provisions of the Civil Code of Lower Canada could not apply to the case at bar in relation to prescription of actions by the Crown. 10
Employment and Immigration Reorganization Act, S.C. 1976-77, c. 54, s. 10.
9 38. (1) Except as expressly provided by any other Act, the laws relating to prescription and the limitation of actions in force in any province between subject and subject apply to any proceedings in the Court in respect of any cause of action arising in such province, and a proceeding in the Court in respect of a cause of action arising otherwise than in a province shall be taken within and not after six years after the cause of action arose.
(2) Except as expressly provided by any other Act, the laws relating to prescription and the limitation of actions referred to in subsection (1) apply to any proceedings brought by or against the Crown.
1 °E. H. Price Limited v. The Queen, [1983] 2 F.C. 841 (C.A.).
Even if we suppose that section 102 applies, the right of action that might have arisen from the decision of the Commission to cancel all the ben efit periods established for the respondent could not be subject to the thirty-year prescription. Moreover, the question of prescription is a red herring in this case. The appellant's right of action was not prescribed, in the strict sense of the word, even by virtue of section 49 of the Act; the prob lem arises in the application of section 57 or section 102 of the Act. We must therefore deter mine whether, given the particular circumstances of the respondent's case, the Commission could proceed against him under the Unemployment In surance Act, 1971, and if so, whether it had to proceed under section 57 rather than section 102 to establish its debt.
Paragraph 2(1)(b) [as am. by S.C. 1976-77, c. 54, s. 26] of the Act defines a claimant as "a person who applies or has applied for benefit under this Act". It is indisputable that during the period from October 1, 1974 to March 15, 1976 the respondent applied for benefit under the Act, although he did so under false names, and that the Commission paid him monies under the same Act which could be nothing other than unemployment insurance benefits. In order thus to extract benefits from the Commission, the respondent submitted fictitious claims in the name of claimants who did not exist. In order to succeed in defrauding the Commission throughout this period, he had to make as many false and misleading statements or representations as he drew benefits, like any other "fake" unemployed person who claims benefits to which he is not entitled fraudulently in his own name, by stating falsely and deliberately that he was unemployed when he was not. The case is clearly covered by subsections 57(6) and 49(4) of the Act, which give the Commission two additional periods of thirty-six months each in order to recon sider claims and seek repayment of benefit paid on the basis of false or misleading statements or representations. Accordingly, when the Commis sion wishes to take proceedings in order to recover monies wrongfully taken from it and paid by it as unemployment insurance benefits, whatever the nature of the fraudulent manoeuvres used to obtain the benefits or the seriousness of the false or misleading statements or representations made in order to extort the benefits, it may proceed under
the Unemployment Insurance Act, 1971. This is, moreover, how the Commission proceeded against the respondent. It considered him as a claimant and claimed from him the balance of what was owing to it, using the mechanism set out in the Act. There can be no doubt that the Commission could proceed under this Act in the circumstances. The question to be answered is whether in so doing it complied with all the requirements of the Act. More specifically, could it proceed under section 102 or section 57 interchangeably, and at its whim, or was it rather obliged to follow the time limits and formalities set out in the latter section?
If we examine the Unemployment Insurance Act, 1971, certain observations are inescapable. While section 102 permits the Commission to amend its decisions, it does not deal at all with the recovery and the prescription of claims by the Commission resulting from overpayments to claimants. These questions are covered by specific provisions in section 49, which necessarily result in the application of section 57. The effects of subsec tions 57(3) and 57(5) are that the right to recover overpayments and the procedure established in section 49 for exercising this right are dependent on the power conferred on the Commission by subsection 57(1) to reconsider claims for benefit, and in no way dependent on its power to amend its decisions under section 102.
The power to reconsider set out in section 57 has a very specific purpose of its own. If the Commis sion exercises this power it acquires the right to recover an overpayment of benefit, or creates an obligation to pay benefit that it had previously refused (subsection 57(4)). On the other hand, section 102 does not refer to the effect for the future and the consequences for the past that the new decision will have on what was done or not done under the previous decision. The specific power to reconsider any claim for benefit in order to determine whether there was an overpayment does not flow from the general power of the Com mission -to amend its decisions with respect to specific claims for benefit. According to the maxim generalia specialibus non derogant, section 57 applies to the exclusion of section 102 and the
Commission must proceed under section 57 if the result of its new decision is, for example, to require that an overpayment of benefit be repaid, a power which does not flow from the exercise of its right to amend its decisions under section 102.
Section 57 cannot be separated from section 49; the two sections are closely connected. There, and nowhere else, Parliament has dealt with the right to recover overpayment of benefit and the pre scription of debts arising therefrom; these are questions of substantive law, and not of procedure. It is undoubtedly significant to note that sections 49 and 57 are in Part II of the Act, which deals with all aspects of unemployment insurance ben efits, while section 102 is found in Part V, entitled ADMINISTRATIVE PROVISIONS, which relates specifically to questions of procedure, properly speaking, such as appeals to the board of referees and the umpire, investigations by the Commission, enforcement of judgments, and so on.
It is also important to observe that section 102 applies both to decisions of the Commission and to decisions of a board of referees or of an umpire. It is difficult to see how a time limit might be relevant to the decisions of these latter bodies. The concept of prescription is necessarily connected to the exercise of a right of action or recovery of a debt, and not to the power of a body to amend its own decisions. In so far as section 102 relates to the Commission, it appears to have a different and more modest goal than the objectives of sections 49 and 57 of the Act. The power to amend conferred on the Commission must be of the same type, that is, of a procedural nature, as the same power which is granted to the board of referees or the umpire. It authorizes the amendment of "any decision given in any particular claim for benefit", when new facts are presented or a material pre existing fact is learned which might alter the original decision. If either of the three bodies referred to had, for example, decided a claim without being aware of an important document or piece of information, or without the affected party being able to present his point of view, section 102 permits it to re-open the case and correct the situation, when the anomaly is brought to its atten tion or it discovers the fact by its own means.
On the other hand, subject to appeal to the board of referees, the powers of the Commission are much broader, and its administrative discre tion is much more extensive under section 57. This provision authorizes it to amend a posteriori within a period of three or six years, as the case may be, a whole series of claims for benefit and to make a fresh decision on its own initiative as to entitlement to benefit, and in appropriate cases to withdraw its earlier approval and require claim ants to repay what had been validly paid pursuant to such approval.
Finally, we should note that subsection 57(1) of the Act begins with the words: "Notwithstanding section 102 but subject to subsection (6)". This clause, along with all of subsection (6), was added to the Act in 1977 by S.C. 1976-77, c. 54, s. 48.
With the addition of subsection (6) in 1977, the Commission was given a time limit of three addi tional years to reconsider claims for benefit in the event, as determined by the Commission itself, that false or misleading statements or declarations were made. In every case, however, the power to reconsider set out in section 57 may be exercised "notwithstanding section 102", that is, despite, in spite of, without being impeded by in section 102, according to the definition of the word "notwith- standing" found in any dictionary. The words of subsection 57(1) itself seem to indicate that this power to reconsider is much broader than, or at the very least entirely different from the power to amend in section 102. They are not interchange able, and they cannot be used indifferently by the Commission, depending on the circumstances. For example, it could not rely on section 102 when it is out of time under section 57 for taking action, or was not in a position to comply with all its formali ties including the formality of notifying the claimant.
The appellant's other ground of appeal was that the Trial Judge erred in deciding the question of the notice provided in section 57 of the Act. It will be recalled that on June 29, 1981, the appellant sent the respondent a notice of overpayment by mail to his last known address. This notice bore the certificate of mailing provided in subsection 120(2) of the Act. The Trial Judge decided that this provision created a simple legal or juris
tantum presumption which could be rebutted by evidence to the contrary.
On the basis of the evidence presented to him, he held that the respondent had succeeded in rebutting the presumption created by subsection 120(2) of the Act. The evidence disclosed that the address where the notice was sent to him was the address that appeared in his criminal record when the Court of Sessions of the Peace at Montréal had sentenced him on April 11, 1979, that he had never received the notice in question, because he had changed his address to another city the follow ing year, and the Judge held that the appellant had not taken any serious efforts to locate him before 1984, as it did easily when it sent him a notice of default on May 15, 1984.
Relying on White v. Weston, [1968] 2 Q.B. 647 (C.A.), in which the service of legal proceedings at a defendant's former address was held to be inval id, the Trial Judge decided that the appellant had an obligation "to determine the correct address of the person from whom a sum of money was being claimed", and concluded [at page 86 F.T.R.]:
The notice of June 29, 1981 sent by the defendant to the plaintiff's old address, an address which at the time he had not lived at for two years, can under no circumstances be regarded as a good and valid notification within the meaning of the subsection of the Act in question [57(1)]. If such notification is not given within six (6) years of the overpayment, there can be no recovery. It is as simple as that: the defendant lost its right of action through its own fault and has only itself to blame.
Subsections 120(1) and (2) of the Act read as follows:
120. (1) In any proceedings under this Act,
(a) a document purporting to be a resolution, record or other proceeding of the Commission or other proceeding under this Act or a copy thereof, and purporting to be certified by a Commissioner or the Secretary of the Commission,
(b) , a document purporting to be, or purporting to be a copy of or extract from,
(i) a document in the custody of the Commission or a document issued under this Act, or
(ii) any entry in any books or records in the custody of the Commission,
and purporting to be certified by the Commission or an officer appointed or employed pursuant to this Act,
(c) a document purporting to be certified by the Commission or an officer appointed or employed pursuant to this Act and setting forth the amount of any contributions paid, payable or owing or the amount of any benefit or other amount paid to or owing by any person, and
(d) a document purporting to be, or purporting to be a copy of or extract from, any employer's register, books, wage sheets, records of wages, ledgers, accounts or other docu ments and purporting to be certified by an inspector or officer appointed or employed pursuant to this Act to whom they were produced under this Act,
is evidence of the facts appearing in the document without proof of the signature or official character of the person appearing to have signed the certificate and without further proof thereof.
(2) For the purposes of this Act and the regulations and any proceedings thereunder, a document purporting to be a certifi cate of the Commission or an officer or employee of the Commission to the effect that a notice, request, demand or other document was sent by mail is evidence that the notice, request, demand or other document was received by the addres see in the ordinary course of the mails.
Subsection 120(2) of the Act therefore provides that the certificate of mailing of a notice or other document is evidence that it was received by the addressee for the purposes of the Act and proceed ings thereunder.
In support of its argument that the expression "is evidence that [it] was received" means "proves beyond dispute that the document was received", the appellant cited the decision of this Court in Brito v. Canada (Minister of Employment and Immigration), [1987] 1 F.C. 80 (C.A.), in which it was held that the use of a similar expression in a provision authorizing the issuance of a certificate under the Immigration Act, 1976" was conclusive and irrefutable evidence of what was stated there in. That case is clearly distinguishable from the instant case, to the point of being inapplicable to the case at bar.
That case concerned a certificate signed by the Minister stating that for reasons of security and criminal intelligence reports, disclosure of which was prohibited by the Act, the person referred to was inadmissible to Canada. The Act itself left the power to determine the admissibility to Canada of certain classes of immigrants to the sole discretion of the Minister. The person in question wished to contest, before an adjudicator, the opinion of the
" S.C. 1976-77, c. 52.
Ministers to the effect that his presence in Canada was contrary to the national interest, as attested to in a certificate. It went without saying in the circumstances that the Court held that the certifi cate had definitive probative force which was bind ing on the arbitrator, on the ground that the English version of the legislative provision stated that "the certificate is proof of the matters stated therein", and even more importantly that the French version read "fait foi de son contenu".
Here, the expression "fait foi de sa réception" is given in English as "is evidence that the notice .. . was received". There appears to be a difference between "is proof' and "is evidence". In The Dictionary of English Law, by Earl Jowitt, London: Sweet & Maxwell Limited, 1959, we read at page 1425:
Proof ...
In the law of evidence, an allegation of fact is said to be proved when the tribunal is convinced of its truth, and the evidence by which that result is produced is called proof.
The word "proof' is therefore the result of "evidence", which is of definitive probative value. It must not be forgotten as well that the law in general does not favour the creation, particularly by judicial interpretation, of legal presumptions, and especially of juris et de jure presumptions, in the absence of specific wording which must also be unequivocal in both languages. They are of restricted application, and in view of the draconian consequences that may result every provision intended to establish such presumptions must be narrowly construed. 12 The absolute meaning of the expression "fait foi" in French should not restrict the more problematical meaning of the words "is evidence" in English, as if they read: "is conclusive evidence". 13 It is interesting to note, for example, that authentic writings in Quebec "font preuve de leur contenu" ("make proof of their contents")
12 Nadeau, André and Léo Ducharme Traité de Droit civil du Québec, vol. IX, Montréal: Wilson et Lafleur, 1965, No. 542, p. 438.
' 3 See R. v. Compagnie Immobilière BCN Ltée, [1979] 1 S.C.R. 865, in which it was held that the words "disposed or' in the Income Tax Regulations [P.C. 1954-1917] should not be restricted by the word "aliéné" in the French version.
and that a judicial admission "fait pleine foi" ("is complete proof") against the party making it. "
We must also consider the legislative context in which the expression "fait foi" was used in the two statutes in question. This aspect did not escape the attention of Marceau J., who wrote at page 93 in Brito:
As I read the provisions in question and understand the context in which they are placed, Parliament did not intend that a certificate issued under subsection 39(1) should be the subject of a challenge and be the basis for an inquiry of a judicial nature.
A number of provisions are found in Part V— ADMINISTRATIVE PROVISIONS of the Unemploy ment Insurance Act, 1971, for example, sections 111 and 120, in which the expression "fait foi de" "is evidence or' is used with or without qualifica tion to settle simple questions of evidence. When Parliament wanted to make the legal presumption that it had created irrebuttable, it added words to that effect to the expression "fait foi" [is evi dence]. For example, in subsection 111(9), an affidavit of an officer with a document or a copy of a document made by the Commission or an employer annexed thereto "is evidence of [fait foi de] the nature and contents of the document and shall be admissible in evidence and have the same probative force as the original document would have if it were proven in the ordinary way". Simi larly, each of the documents referred to in subsec tion 120(1), supra, "is evidence of ['fait foi de] the facts appearing in the document without proof of the signature or official character of the person appearing to have signed the certificate and with out further proof thereof". It would be extraordi nary if, without these additional expressions, a certificate issued under subsection 120(2) would have the same effect of constituting irrefutable evidence that a document was received by the addressee in the ordinary course of the mails. There may be a host of reasons to explain why a piece of mail which was put in the mails and addressed to the right place and the right person was not delivered or was delivered days if not weeks late: an incomplete address, the loss or theft of a mailbag, a general or rotating strike in the postal service, and so on. In such an event, the addressee should not be barred from arguing that, notwithstanding the certificate, he never received
14 Arts. 1207 and 1245, Civil Code of Lower Canada.
delivery of the document sent to him in the mails. It is above all a question of credibility and in each case it must be left to the Commission, the board of referees or the Court to decide it. 15
The word "notify" means, in its everyday sense, "to inform expressly", and in law: "porter à la connaissance d'une personne intéressée et dans les formes légales (un acte juridique); 16 "to make known, to give notice, to inform"."
We would recall that by virtue of subsection 57(1) the Commission must notify the claimant of its decision as to his entitlement to benefit. This decision is subject to appeal to the board of referees (subsection 57(2)) under section 94, the first subsection of which provides:
94. (1) The claimant or an employer of the claimant may at any time within thirty days from the day on which a decision of the Commission is communicated to him, or within such fur ther time as the Commission may in any particular case for special reasons allow, appeal to the board of referees in the manner prescribed. [Emphasis added.]
If subsection 120(2) were to create a presump tion juris et de jure of receipt of such a decision in the ordinary course of the mails, a claimant faced with such a certificate could never even attempt to prove that he had not received the document in question, or had received it late. Unable to obtain an extension of the time limit, he would lose his right of appeal to the board of referees. It does not appear that Parliament intended such a result.
I would agree with the Trial Judge that we must conclude that subsection 120(2) creates a simple furls tantum presumption, and we must accept his finding of fact that the respondent did not receive, on June 29, 1981, the notification of the amount of benefit that remained for him to repay.
The purpose of subsection 120(2) in creating this legal presumption is to permit the Commis sion, by filing such a certificate, to be relieved of the obligation of calling witnesses and filing the
15 See the decision of March 28, 1980, of Addy J., sitting as umpire, in Donald Filion, CUB 5730, who held that a certifi cate issued under subsection 120(2) was not conclusive.
16 Le Petit Robert.
17 The Shorter Oxford Dictionary.
postal receipt to prove that the letter in question was mailed, and to increase the burden of proof on an addressee who claims that he did not receive it, or received it later than in the ordinary course of the mails. In a large majority of cases in which the Commission must notify claimants of its decisions (eg., subsections 53(3); 54(2)), it should not encounter insurmountable administrative prob lems, given the obligation imposed on claimants to supply the Commission with the mailing address of their normal place of residence (subsection 55(9)), failing which they are not entitled to benefit (sub- section 55(1)). The case at bar, however, truly fell outside of the ordinary, as the Commission's wit ness testified at trial. It knew as early as Septem- ber 1977 when the criminal charges were laid that the respondent and his accomplice had defrauded it of a substantial sum. It became certain of this in October 1978, when he pleaded guilty, and further in April 1979, when he was sentenced to repay the sum of $15,000 to it.
In the circumstances, the Commission had the obligation in June 1981 to ensure that it had the respondent's correct address in order to notify him, within the prescribed time, of the amount that he still had to repay. It was claiming from him the balance of the benefits that had been paid to him several years earlier. The respondent had ceased to receive benefit, although he had done it illegally, since the month of March 1976. He was no longer a claimant of benefit, but rather had for a long time been a debtor of the Commission. A debtor is not required to pursue his creditor in order to notify it of his changes or address. It was up to the Commission to exercise diligence and to give the required notification by mail in good time at the respondent's places of residence and domicile, or by any other effective means.
The respondent received benefit from Septem- ber 1974 to March 1976. In accordance with the second paragraph of Article 1161 of the Civil Code of Lower Canada, 18 the Commission imput ed the sum received under the restitution order made by the Court of Sessions of the Peace at
' 8 1161....
1f the debts be of like nature and equally burdensome, the
imputation is made upon the oldest.
Montréal to repayment of the weeks of benefit from September 1974 to June 1975. The notifica tion of the balance to be repaid therefore had to be given before March 1982. The notice of June 29, 1981 was, as we have seen, ineffective. The first notice of default sent by the appellant, this time to the respondent's correct address, reached him only on May 15, 1984, informing him of the amount claimed from him. Like the Trial Judge, I believe that the failure to notify him within the time prescribed in section 57 was fatal to the Commis sion's right to recover under the Unemployment Insurance Act, 1971 which it wished to exercise. In so doing, as the Trial Judge expressed it, the Commission "lost its right of action".
We should add, however, what the Judge had stated earlier [at page 83]:
What makes the present situation especially complicated is that, in order to interrupt the prescription and to validly initiate the machinery for reconsideration contained in s. 57, the Com mission must notify a person who has been overpaid benefits of his obligation to reimburse them.
This is not a correct statement. The notification referred to here clearly has nothing to do with the triggering of the review process contained in sec tion 57; it is of relevance only in determining the starting point of the only true prescription, set out in subsection 49(4) of the Act. This passage leaves the impression that this is a single twelve-year prescription period which must be interrupted half-way through by the notification, so as to preserve both the power to reconsider under sec tion 57 and the right to recover under section 49.
Rather, these are two different and independent processes, each of which carries with it its own procedures. The combined effect of subsections 57(1) and 57(6) is that from the time when the benefit was paid the Commission has three or six years, depending on the case, in which to reconsid er applications, decide entitlement to benefit, cal culate the amount to be repaid and notify the claimant of its decision. All these conditions must be met within the prescribed delays in order to complete the process of reconsideration of claims for benefit so as to be able to proceed to the next stage, recovery of the debt. There can be no hiatus between the two. The wording of sections 49 and 57 does not permit us to think that the Com mission can validly fulfill its obligation to notify the claimant outside the time limits set out in
subsections 57(1) and 57(6). If it were otherwise, the Commission could extend its right to recover the debt for overpayment forever, at its leisure, beyond the limits provided in sections 49 and 57 of the Act. In order to defer the starting point of the prescription set out in subsection 49(4) of the Act, which extinguishes the debt, to suit itself the Com mission would have only to not notify the claimant, and thereby render its debt subject to almost no prescription, or subject to a longer prescription period than that set out in the same subsection. Because any reconsideration of claims for benefit and any decision that a claimant was not entitled to benefit made after the expiry of these prescrip tions would be invalid, its failure to notify the claimant at the proper time has the same effect. It must be treated in the same way: the right of action to recover the debt is compromised and can no longer be exercised according to the procedures set out in the Act. Otherwise, the words found in subsection 57(1), "the Commission shall calculate the amount that was so received ... and notify the claimant of its decision", would mean abso lutely nothing.
The obligation to repay the overpayment is created by subsection 49(1). However, as appears clearly in subsections 49(4), 57(3) and 57(5), this obligation in fact arises only when the Commission notifies the claimant of the amount that he must repay under section 49, which it has calculated under subsection 57(1). It is at this point that the debt becomes liquid and payable. If the claimant's obligation to repay arises at that point so, as a corresponding and necessary consequence, does the right of the Commission to recover the debt arise at the same point. The date on which the Commis sion notifies the claimant of the amount to be repaid determines the starting point of the pre scription for recovery of the debt. Accordingly, the obligation to notify, imposed on the Commission by section 57, and the right to recover, granted to it by section 49, are necessarily interdependent. In the absence of notification, the claimant has no obligation to repay and the Commission has no right of action. Late notice under section 57 will have the same effect, of barring and rendering null any remedy exercised under section 49 of the Act.
Further in his judgment, the Trial Judge himself corrected his misunderstanding, referred to above, of the elements of the decision-making process under section 57 in relation to the process for recovering the debt under section 49. In properly rejecting the respondent's argument that the notification had been given by filing charges before the criminal court in Montréal in Septem- ber 1977, and that accordingly the prescription expired on September 26, 1983, he wrote [at page 83]:
... he should first have made certain that the Commission had reconsidered the claims for benefits within the specified time .... Thus, in order for the recovery procedure to be initiated, the Commission must first advise a person who has received benefits to which he is not entitled that his benefit periods have been cancelled and as to the amount which is repayable.
The conclusions of the judgment a quo must be affirmed.
However, there remains the statement of the Trial Judge which appears both in the reasons and in the judgment itself, to the effect that the respondent no longer owes anything to the appel lant. If this statement is taken within the limited context of the action before him, it is not incorrect to say that the respondent no longer owes anything to the Commission under the terms of the Unem ployment Insurance Act, 1971. The action brought by the Commission under that Act failed because of the procedural errors it made; it has lost its right of action and cannot take action against him again under the Unemployment Insurance Act, 1971. We do not have to decide in the present appeal whether the Commission had, still has or still retains a remedy against the respondent before the ordinary courts at common law. In the event that the Trial Judge's statement was too general in scope and exceeded the limits of the action, it should be stricken so as not to prejudge this issue beforehand.
I would allow the appeal in part, solely in order to amend the judgment of the Trial Division by striking the words "and declare that he owes nothing further to the defendant", so that it should now read as follows:
I allow the action by the plaintiff for a declaratory judgment. The attachments made by the defendant in the case at bar are declared to be unlawful and are set aside accordingly. Each party shall pay its own costs.
For the rest, I would dismiss the appeal with costs to the respondent.
* * *
The following is the English version of the reasons for judgment rendered by
DESJARDINS J.: I have had the advantage of reading the reasons written by my brothers Mar- ceau and Lacombe JJ.
I believe that my brother Lacombe J. is correct in making the distinction that exists in English between the words "proof" and "evidence". I find no fault with his interpretation of the English expression "is evidence that the notice ... was received": subsection 120(2) of the Act. (See Black's Law Dictionary, 5th ed., St. Paul, Minn.: West Publishing Co., 1979; Bouvier's Law Dic tionary, 8th ed., St. Paul, Minn.: West Publishing Co., 1914; B. W. Pope, Legal Definitions, Chi- cago: Callaghan Co., 1920). However, my analysis of the French phrase "fait foi de sa réception" leads me to a different conclusion.
The expression "faire foi" is defined as follows in the Dictionnaire des expressions juridiques, H. Rolland and L. Boyer, L'Hermès, 1983:
Faire preuve par soi-même, sans qu'il soit besoin d'établir le titre par d'autres moyens.
[TRANSLATION] Be proof in itself, without the need to estab lish the title by other means.
The Dictionnaire des expressions et locutions françaises, Le Robert, 1984, states that this expression means:
démontrer, prouver la véracité d'une assertion, d'un document, etc.... Signifie proprement "créer la conviction".
[TRANSLATION] show, prove the truth of a statement, a docu ment, and so on ... Properly speaking, "create the conviction".
Finally, we should note that Le Grand Robert de la langue française, vol. 4, 1986, states:
... démontrer la véracité, porter témoignage, donner force probante. —> Prouver, témoigner. L'acte authentique fait foi de la convention (—).Authenticité). Les copies du titre original peuvent faire foi dans certaines conditions. J'ai bien reçu votre lettre à la date indiquée, le cachet de la poste en fait foi.
[TRANSLATION] ... show the truth, bear witness, give proba- tive force. —> Prove, testify. An authentic writing is proof of the agreement (—. Authenticity). Copies of the original title may
be proof in certain circumstances. I did receive your letter on the date indicated, as the postmark proves.
In short, contrary to the expression "is evidence of', the phrase "fait foi de" clearly conveys the meaning that the certificate of the Commission to the effect that the notice of overpayment was sent by mail constitutes, in itself, evidence that the notice was received, without further proof thereof.
At this point, another problem arises. When we are faced with a bilingual text and the two versions call for a different interpretation, which do we choose? Before we enter further into this discus sion, we would recall the words of the Official Languages Act, R.S.C. 1970, c. O-2:
8. (1) In construing an enactment, both its versions in the official languages are equally authentic.
(2) In applying subsection (1) to the construction of an enactment,
(a) where it is alleged or appears that the two versions of the enactment differ in their meaning, regard shall be had to both its versions so that, subject to paragraph (c), the like effect is given to the enactment in every part of Canada in which the enactment is intended to apply, unless a contrary intent is explicitly or implicitly evident;
(b) subject to paragraph (c), where in the enactment there is a reference to a concept, matter or thing the reference shall, in its expression in each version of the enactment, be con strued as a reference to the concept, matter or thing to which in its expression in both versions of the enactment the reference is apt;
(c) where a concept, matter or thing in its expression in one version of the enactment is incompatible with the legal system or institutions of a part of Canada in which the enactment is intended to apply but in its expression in the other version of the enactment is compatible therewith, a reference in the enactment to the concept, matter or thing shall, as the enactment applies to that part of Canada, be construed as reference to the concept, matter or thing in its expression in that version of the enactment that is compatible therewith; and
(d) if the two versions of the enactment differ in a manner not coming within paragraph (c), preference shall be given to the version thereof that, according to the true spirit, intent and meaning of the enactment, best ensures the attainment of its objects.
The leading decision on the interpretation of this provision is still R. v. Compagnie Immobilière BCN Ltée, [1979] 1 S.C.R. 865. In that case, the Supreme Court was asked to consider the meaning to be given to the expression "disposed of' and the word "aliénés", which appear in subsection 1100(2) of the Income Tax Regulations. At pages
871 and 872 of the judgment, Pratte J. laid the foundation of the interpretation that should be given to section 8 of the Official Languages Act, supra:
I do not believe that s. 8(2)(b) of the Official Languages Act is of much assistance to respondent. The rule therein expressed is a guide; it is one of several aids to be used in the construction of a statute so as to arrive at the meaning which, "according to the true spirit, intent and meaning of an enactment, best ensures the attainment of its objects" (s. 8(2)(d)). The rule of s. 8(2)(b) should not be given such an absolute effect that it would necessarily override all other canons of construction. In my view therefore the narrower meaning of one of the two versions should not be preferred where such meaning would clearly run contrary to the intent of the legislation and would consequently tend to defeat rather than assist the attainment of its objects.
One of the most important rules to be followed in the interpretation of a particular provision of a statute was expressed as follows by Lord Herschell in Colquhoun v. Brooks [(1989) 14 A.C. 493], at p. 506:
It is beyond dispute, too, that we are entitled and indeed bound when construing the terms of any provision found in a statute to consider any other parts of the Act which throw light upon the intention of the legislature and which may serve to shew that the particular provision ought not to be construed as it would be if considered alone and apart from the rest of the Act.
And, in Canada Sugar Refining Company, Limited v. The Queen [[1898] A.C. 735], Lord Davey said at p. 741:
... Every clause of a statute should be construed with reference to the context and the other clauses of the Act, so as, so far as possible, to make a consistent enactment of the whole statute or series of statutes relating to the subject-matter.
Clearly, this basic rule of statutory construction is still in effect; it has not been repealed by the enactment of s. 8 of the Official Languages Act. [My emphasis.]
In short, the most restrictive version should not necessarily be adopted if, in light of all of the provisions of the legislation in question as a whole, the conclusion is reached that it "would clearly run contrary to the intent of the legislation and would consequently tend to defeat rather than assist the attainment of its objects": BCN, supra, at page 872.
In Food Machinery Corp. v. Registrar of Trade Marks, [1946] 2 D.L.R. 258 (Ex. Ct.), Thorson J. had to decide a problem that was broadly similar to the one facing us here. In that case, the French and English versions of subsection 26(2) of The Unfair Competition Act, 1932, S.C. 1932, c. 38, supported both of the two irreconcilable interpre tations. The solution then proposed by Thorson J.
(at page 263) seems to foreshadow what was later said by Pratte J. in BCN, supra:
The grammatical meaning of the French text appears to be clear and accords with the appellant's construction. My own opinion of the English text is that its meaning is also clear, but two constructions of it have been advanced, one of which is objectionable and the other free from objection. Quite frequent ly the French and English texts of a statute are compared with one another with a view to clarifying its meaning, for Parlia ment speaks in two languages each entitled to equal respect. I have not been able to find any authority on the specific question that has arisen in this appeal; if there is any ambiguity it is because of the divergence between the two texts, and it seems to me that the Court should deal with the matter as it would deal with any other question of ambiguity, namely, seek to ascertain the true intent of Parliament, following the guid ance of the canons of construction recognized as applicable in such cases. Under the circumstances, it would, I think, be sound to hold that where two constructions are advanced for either the French or English text of a statute, one subject to objection and the other free from it, that construction which is free from objection, according to the recognized canons of construction, should be adopted, even although the language of the other text is at variance with it and in accord with the objectionable construction; the objectionable construction is not rendered free from objection by reason of such accord and is not entitled to any support from it. [My emphasis.]
In the case at bar, following an examination of the various provisions of the Act, Lacombe J. stated that he was convinced that subsection 120(2) established a juris tantum presumption. I think otherwise. The Unemployment Insurance Act, 1971 is social legislation, which must be construed broadly and liberally: Hills v. Canada (Attorney General), [1988] 1 S.C.R. 513, at page 559; Abrahams v. Attorney General of Canada, [1983] 1 S.C.R. 2, at page 10; Rose (1981) CUB 6266 and Miedus (1983) CUB 7983. We would note, however, that this rule was stated in the context of actions dealing with a person's entitle ment to benefit and not with the application of the administrative provisions of the Act. It appears to me to be entirely appropriate that the substantive provisions of this legislation be construed liberally because, as Wilson J. stated, "the overall purpose of the Act is to make benefits available to the unemployed": Abrahams, supra, at page 10. Nonetheless, the sections contained in Part V of the Act are in no way connected with a person's right to receive benefit. Rather, they deal with the establishment of an administrative mechanism for effectively implementing the legislative policy.
There is no need for these provisions to be inter preted in such a way as, in the event of ambiguity in the text, systematically to favour the claimant.
The Canada Employment and Immigration Commission each year handles innumerable claims for benefit. It must also send a host of things by mail. If we read section 120 of the Act, it is clear that the intention of the legislator is to facilitate the task of the Commission when the time comes for it to establish the authenticity of documentary evidence. If, as I believe, Parliament really wanted to achieve this objective, why would it have been content to enact a juris tantum presumption? Sending a letter by ordinary mail constitutes in itself a simple presumption that the letter was received. Parliament is presumed not to speak and say nothing, and so why would it be satisfied with repeating what was already the case? In so acting, would it have achieved the goal that it had set, to facilitate the task of the Commission? All these reasons lead me to conclude that subsection 120(2) of the Act is necessarily intended to create a juris et de jure presumption. The French version of the Act appears to me to translate the intention of the legislator with greater precision than does the English version. Furthermore, the presumption only operates "in the ordinary course of the mails". Subsection 120(2) therefore allows for cir cumstances that might prevent the application of the presumption to be argued.
Like my brother Marceau J., I believe that this presumption cannot be applied if the address on the notification is not the claimant's address. In the case at bar, this presumption did not operate, because the respondent no longer lived at the address shown on the notification sent to him by the Commission on June 29, 1981.
The essential question to be determined, how ever, is whether the Commission could have relied on the provisions of the Unemployment Insurance Act, 1971 when on March 28, 1985 it registered a certificate in the Federal Court of Canada estab lishing that the respondent owed it the sum of $15,726.42, and when on May 8, 1985 it applied to
the employer to obtain the attachable portion of the respondent Michel Brière's salary.
It will be recalled that Michel Brière received unemployment insurance benefits in fictitious names between October 1, 1974 and March 15, 1976. Criminal proceedings were brought against him on September 26, 1977. He pleaded guilty and sentence was pronounced on April 11, 1979. On September 5, 1979, the Court of Appeal of Quebec affirmed the requirement to which the Court of Sessions of the Peace had sentenced Brière, to reimburse to the Commission the sum of $15,000, which he did. His accomplice, in another case, was required to pay $5,000 to the Commission. There after, the Commission reconsidered the claims made by Brière and notified him on June 29, 1981 that he owed the sum of $20,572. The notice was sent to 2880 Masson Street, in Montréal. This address had been provided by Brière at the time he was sentenced. The respondent, however, was no longer living at this address when the notice was sent to him. Only on May 15, 1984, after having retained the services of a credit bureau, did the Commission reach Brière at his real address in Saint Hippolyte, Quebec. A second notice was sent to him on February 11, 1985. Receiving no reply, the Commission proceeded on March 28, 1985 to file a certificate in the Federal Court of Canada under the provisions of section 112 of the Act.
On June 29, 1981, the Commission was in a position to claim all the benefits that had been paid six years earlier, that is, the benefits paid between June 29, 1975 and March 15, 1976 (sub- section 57(1) of the Act). However, the notifica tion of June 29, 1981 did not reach the debtor. For the reasons explained above, the presumption in subsection 120(2) did not come into play. This notification of June 29, 1981 was no doubt sent in good faith. Did it, however, have any legal effect? It is here, and I say this with respect, that I cannot agree with the opinion of my brother Marceau J.
Subsection 57 (1) of the Act requires the Com mission to notify the claimant of its decision. The text of the Act leaves no doubt on this point (see, for example, R. v. Varnes, [1975] F.C. 425 (T.D.)).
Does the time limit of thirty-six or seventy-two months referred to in subsections 57(1) and (6) of the Act apply to the notification? My answer is that it does. Subsection (1) of section 57 provides for four operations. The Commission may at any time in a specific period reconsider and, if it decides that a person has received money for which he was not qualified or has not received money to which he was entitled, it must calculate the amount due or payable and notify the claim ant. I could not apply the thirty-six or seventy-two month limit simply to the reconsideration and not apply it to the decision, the calculation and the notification. Nor could I apply the thirty-six or seventy-two month limit to the reconsideration and the decision and not apply it to the calculation and the notification. I read subsections (1) and (6) of section 57 as a whole. The Commission has from thirty-six to seventy-two months to reconsider a claim, and if, during this period, it decides that an amount of money is owing to it or is payable by it, as the case may be, it must, still within this period, calculate this amount and notify the claimant of its decision. The contrary opinion would have it that the period of time established by subsection 57(1) applies only to the reconsideration and the decision, and that the Commission has any amount of time to calculate and notify. If this were the case, the Commission would have a floating period, at its leisure, before the starting point of the period it is allowed for recovery of its debt (subsections 57(5) and 49(4)). I cannot believe that this was the intention of Parliament.
I must therefore conclude, following the exam ple of my brother Lacombe J., that it was impos sible for the Commission to rely on the provisions of the Unemployment Insurance Act, 1971 in order to obtain repayment from Mr. Brière of the over- payment in question, because the notification sent on June 29, 1981 did not reach the debtor and the notification sent on May 15, 1984 was out of time.
It is certain, however, that from the point at which Michel Brière collected unemployment in surance overpayments, he incurred a debt to Her Majesty as a result of his fraud, by virtue of the principles of the common law. I leave it to the courts of competent jurisdiction in this matter to
decide whether the Commission has a remedy at common law.
Like my brother Lacombe J., I would allow the appeal in part, for the sole purpose of amending the judgment of the Trial Division by striking the words "and declare that he owes nothing further to the defendant", so that that judgment now reads as follows:
I allow the action by the plaintiff for a declaratory judgment. The attachments made by the defendant in the case at bar are declared to be unlawful and are set aside accordingly. Each party shall pay its own costs.
For the rest, I would dismiss the appeal with costs to the respondent.
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