JOHN S. MERCER Applicant v. ATTORNEY GENERAL OF, 2012 FCA 37

Federal Court of Appeal Cour d'appel fédérale Federal Court of Appeal Cour d'appel fédérale Date: 20120203 Docket: A-304-10 Citation: 2012 FCA 37 CORAM: PELLETIER J.A. DAWSON J.A. STRATAS J.A. BETWEEN: JOHN S. MERCER Applicant and ATTORNEY GENERAL OF CANADA Respondent Heard at Halifax, Nova Scotia , on January 31, 2012. Judgment delivered at Ottawa, Ontario , on February 3, 2012. REASONS FOR JUDGMENT BY: STRATAS J.A. CONCURRED IN BY: PELLETIER J.A. DAWSON J.A. Date: 20120203 Docket: A-304-10 Citation: 2012 FCA 37 CORAM: PELLETIER J.A. DAWSON J.A. STRATAS J.A. BETWEEN: JOHN S. MERCER Applicant and ATTORNEY GENERAL OF CANADA Respondent

REASONS FOR JUDGMENT STRATAS J.A. [1] Mr. Mercer applies for judicial review of the decision dated June 18, 2010 of the Umpire (CUB 74655). The Umpire rejectedMr. Mercer’s appeal from the Board of Referees. [2] Mr. Mercer was being paid benefits under the Employment Insurance Act, S.C. 1996, c. 23. Later, the Commission took theview that Mr. Mercer was overpaid and sought repayment from him. Both the Board and the Umpire agreed with the Commission. [3] The alleged overpayment stemmed from short-term disability benefits Mr.

Mercer was receiving under a private group plan.Such benefits are considered to be income for the purposes of calculating benefits under the Act: Employment Insurance Regulations,SOR/96-332, subparagraph 35(2)(c)(i), subsection 36(1) and paragraph 36(12)(b). This inclusion into income reduces the benefits towhich Mr. Mercer was entitled. [4] In this Court, Mr. Mercer admits he was overpaid. But he submits that the Commission was aware that he was beingoverpaid and should have advised him of that, but failed to do so.

He also submits that the Commission should be accountable for notcounselling him on how to avoid the problem. [5] There is no evidence in the record that the Commission’s advice was deficient. But even if it were, such deficiency does notassist Mr. Mercer: Canada (Attorney General) v. Granger, (FCA), [1986] 3 F.C. 70 (C.A.), aff’d (SCC), [1989] 1 S.C.R. 141. I would add that Mr. Mercer knew at an early stage he would have to account for benefits received underthe private group plan: see, for example, Respondent’s Record, pages 49-52. [6] In his written submissions, Mr.

Mercer also submits that since the payments from the private group plan are not includedinto income under the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.) they should not be included into income for the purposes of theEmployment Insurance Act and the Employment Insurance Regulations. [7] I reject the submission. For the purposes of determining Mr.

Mercer’s employment insurance rights and obligations, theprovisions of the Employment Insurance Act and Regulations apply, not the provisions of other legislation. [8] Overall, I see no reviewable error in the decision of the Umpire. [9] The respondent has brought to our attention that the proper respondent to Mr. Mercer’s judicial review is the AttorneyGeneral of Canada, not Human Resources and Skills Development: Federal Courts Rules, SOR/98-106, rule 303(1).

At the hearing, theCourt agreed that this change should be made and, accordingly, these reasons and the Court’s judgment reflect this. [10] Therefore, for the foregoing reasons, I would dismiss Mr. Mercer’s application with costs. "David Stratas" J.A.

“I agree J.D. Denis Pelletier J.A.” “I agree Eleanor R. Dawson J.A.” FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-304-10 AN APPLICATION FOR JUDICIAL REVIEW FROM A DECISION OF THE UMPIRE, LOUIS S. TANNENBAUM, DATED JUNE 18, 2010 STYLE OF CAUSE: John S. Mercer v. Attorney General of Canada PLACE OF HEARING: Halifax , Nova Scotia DATE OF HEARING: January 31, 2012 REASONS FOR JUDGMENT BY: Stratas J.A. CONCURRED IN BY: Pelletier and Dawson JJ.A. DATED: February 3, 2012 APPEARANCES : John S. Mercer ON HIS OWN BEHALF Sarah E. Drodge FOR THE RESPONDENT

SOLICITORS OF RECORD : Myles J. Kirvan Deputy Attorney General of Canada FOR THE RESPONDENT