Decision A-0637.86

Summary:

"Notwithstanding s. 86" means "without being impeded by s. 86". Power to reconsider much broader, entirely different from that in s. 43. They are not interchangeable and they cannot be used indifferently. One could not rely on s. 86 when out of time under s. 43. Purpose of s. 86 applicable to CEIC, Board and Umpire; different purposes sought by s. 35 and 43. The power conferred to CEIC is of the same type as that granted to Boards or Umpires. CEIC's administrative decision under s. 43 allowing fresh decisions on its own initiative. The CEIC must proceed under s. 43 if the result of its new decision is to require that an overpayment be repaid, a power which does not flow from the exercise of its right to amend under s. 86. Significantly these sections are found in 2 distinct parts of the Act. The recovery and the prescription of claims are covered by s. 35 which necessarily results in the application of s. 43. The effects of ss. 43(3) and (5) are that the right to recover overpayments is dependent on the power conferred by 43(1) and in no way dependent under 86. As per CEIC, s. 43 and 86 cover the same ground: s. 86 remains available because no time is prescribed while s. 43 includes specific constraints; s. 86 has the effect of preserving in cases of fraud the benefit of the long prescription. This argument cannot be upheld.

---

Summary:

The obligation to repay the overpayment is created by 35(1). It appears clearly in 35(4) and in 43(3) and (5) that this obligation in fact arises only when the CEIC notifies claimant of the amount to be repaid. It is at this point that the debt becomes liquid and payable. If claimant's obligation to repay arises at that point, so does the right of the CEIC to recover the debt. The date on which the CEIC notifies claimant of the amount to be repaid determines the starting point of the prescription for recovery of the debt. Claimant who defrauded the Commission by submitting fictitious claims from 1974 to 1976. Notice of overpayment sent in 1981 to a former address. Subsequent notice issued in 1984. By virtue of ss. 43(1), the CEIC lost its right of action due to delays expired.

---

Summary:

Distinction between the 2 versions of "is evidence" used in ss. 102(2). French version translates the legislative intent with greater precision. The presumption only operates in "the ordinary course of the mails". Not applicable if the address is not claimant's.

---

Summary:

Fraudulent claims. The CEIC lost its right of action by its failure to abide by delays prescribed in UI Act. We do not have to decide whether the CEIC still retains a remedy before the ordinary courts at common law. We will leave it to competent courts to decide. Fraudulent claims and recovery period expired. There seems to be no question that the claimant owes a debt to the CEIC and that, under common law, this obligation remains in force since, in principle, no prescription is made against the Queen. [Marceau, J.]

---

Summary:

It seems appropriate to me that the provisions concerning entitlement be interpreted liberally following ABRAHAMS. Nevertheless, Part V of the Act [s. 120] does not deal with entitlement but with the administrative mechanism. No need for liberal interpretation. [Dejardins, J.]

---

Summary:

Fraudulent claims under assumed names from 1-10-74 to 15-3-76. On 29-6-81, the CEIC could recover benefits paid six years earlier, namely on 29-6-75. However, the debtor did not receive the notice of 29-6. **According to ss. 43(1) and (6), from the moment that benefits are paid, the CEIC has 3 or 6 years to reconsider a claim, decide on entitlement, calculate the debt and notify the claimant of its decision, all within that time frame. Notification invalid if the period has expired. **S. 43 gives the CEIC the authority to establish a repayment obligation that it can enforce under common law. Once the time period has expired, it can no longer act as the authority and enforce justice itself. It must have recourse to regular courts of law. [Marceau, J.] **According to the CEIC, since it was trying to recover the proceeds of fraud, it had 30 years to act under common law. However, action was not taken against the claimant under common law and, therefore, the UI prescriptions apply. [p. 6-8] **According to the CEIC, s. 43 and s. 86 sometimes overlap: s. 86 is open-ended because it does not prescribe a time period, whereas s. 43 has a number of restrictions; s. 86 provides a longer period for action in cases of fraud. Untenable argument. **”Notwithstanding section 86” means “without being prevented by section 86”. Much broader powers and s. 43 is entirely different. They are not interchangeable and cannot be used indiscriminately. S. 86 cannot be used because the time period set out in s. 43 has expired.

---