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.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.