Difference between revisions of "Penalties, Violations, and Offences with Employment Insurance (8:VIII)"
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== A. Imposing Penalties == | == A. Imposing Penalties == | ||
Sections 38 and 40 of the ''EI Act'' allow the Commission to impose a penalty of up to three times the weekly rate of benefit on a claimant who '''knowingly''' makes a false or misleading representation to the Commission in relation to | Sections 38 and 40 of the ''EI Act'' allow the Commission to impose a penalty of up to three times the weekly rate of benefit on a claimant who '''knowingly''' makes a false or misleading representation to the Commission in relation to their claim for benefits. The claimant must actually know that the statement is false or misleading, and the onus of proving this is on the Commission. | ||
The court applies a subjective knowledge test to decide whether the claimant intended to make false statements to the commission. Following ''Canada v Gates'' (1995), 125 D.L.R. (4th) 348, the Court in ''David Moretto v AG Canada'', [1998] F.C.J. No. 438, confirmed that even if a claimant’s statement is found to be false, no penalty should be levied unless the finder of fact is satisfied that the claimant “subjectively knew” the statement was false. It is not enough to say that they should have known, or should have asked someone, or that a reasonable person would have known. | The court applies a subjective knowledge test to decide whether the claimant intended to make false statements to the commission. Following ''Canada v Gates'' (1995), 125 D.L.R. (4th) 348, the Court in ''David Moretto v AG Canada'', [1998] F.C.J. No. 438, confirmed that even if a claimant’s statement is found to be false, no penalty should be levied unless the finder of fact is satisfied that the claimant “subjectively knew” the statement was false. It is not enough to say that they should have known, or should have asked someone, or that a reasonable person would have known. | ||
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=== 1. Appealing a Decision to Impose a Penalty === | === 1. Appealing a Decision to Impose a Penalty === | ||
If the Commission imposes a '''penalty under s 38''' (or s 39 in the case of employers), '''a | If the Commission imposes a '''penalty under s 38''' (or s 39 in the case of employers), '''a claimant should be advised to appeal''' in all but the clearest of circumstances. Regardless of what the Commission says, it has the burden of proving that the claimant knew that the statement was false or misleading at the time it was made. If the claimant has a reasonable explanation (e.g. confusion regarding the intent of the question), the appeal should be allowed. | ||
:'''NOTE:''' The Commission cannot impose a penalty under ss 38 or 39 if 36 months have elapsed since the act or omission. For a case that discusses when time limits start to run see ''Attorney General of Canada v Kos'', 2005 FCA 319. The key issue here was whether file notes by an insurance officer constituted a “decision” that triggered the time limit. The court ruled that it did not, in part because the notes were not communicated to the claimant. | :'''NOTE:''' The Commission cannot impose a penalty under ss 38 or 39 if 36 months have elapsed since the act or omission. For a case that discusses when time limits start to run see ''Attorney General of Canada v Kos'', 2005 FCA 319. The key issue here was whether file notes by an insurance officer constituted a “decision” that triggered the time limit. The court ruled that it did not, in part because the notes were not communicated to the claimant. | ||
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=== 1. Increased Number of Hours Required to Qualify === | === 1. Increased Number of Hours Required to Qualify === | ||
Section 7.1(1) provides that an insured claimant | Section 7.1(1) provides that an insured claimant must have a greater number of hours to qualify if that person has accumulated one or more violations in the 260 weeks before making their claim. This adds a significant barrier to receiving benefits. The increased hours required to qualify after a violation are outlined in the '''s 7.1(1) Table''', on the following page: | ||
'''Section 7.1(1) Table''' | '''Section 7.1(1) Table''' | ||
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=== 3. Classifying Violations === | === 3. Classifying Violations === | ||
If a violation is found to have occurred, as determined by the above criteria, it must be classified for purposes of the '''s 7.1(1) Table''' | If a violation is found to have occurred, as determined by the above criteria, it must be classified for purposes of the '''s 7.1(1) Table'''. The ''EI Act'' classifies violations in the following manner under s 7.1(5)(a): | ||
*a) Minor violation: if the value of the violation is less than $1,000; | *a) Minor violation: if the value of the violation is less than $1,000; | ||