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    Decision Writing/Reasoning/Findings of Fact

    CUB 39868 -" An Umpire can intervene in a Board's finding of fact only where there is no evidence to support the Board's findings or where the Board clearly ignored the important evidence or seriously misconstrued the evidence or based its decision on a perverse finding of facts...An Umpire must consider whether, on the evidence before it, a Board could reasonably have reached a different conclusion...An Umpire would be exceeding his or her jurisdiction if he or she were to overturn a Board's finding of fact or substitute his or her opinion for that of the Board, simply because he or she viewed the evidence differently. The appeal was dismissed.
    Appellant: Renascent Automotive, Employer
    Date: 1997

    CUB 41129 - Claimant alleges that the Board did not issue a decision in compliance with the requirements of the Act (s.79.2). The decision in Pauze ( CUB 24965)  clearly spells out the underlying principle in this appeal. A decision based on non-existent or inadequate reasoning is not acceptable. The summary of facts is not a finding of facts. I feel that the Board rendered a decision which must be quashed. The case must be returned to a newly constituted Board of Referees so that it can weigh the evidence, form an opinion on the matter in dispute and issue a decision in keeping with its mandate. The appeal was allowed.
    Appellant: Paul Carbonneau
    Date: 1998

    CUB 45479 - The claimant had a spotty employment record with his employer located at Hearst, Ontario. These shortcomings include lateness in arriving at work and other similar incidents. The claimant alleges to have an illness which precluded him from placing a call informing the employer he would not be showing at his place of work. The claimant suffers from a speech impediment, this makes his work arguably more difficult. Sensitivity must be shown. The Board itself in dealing with the issue was somewhat insensitive. The flaws noted include a report of interview of an employee of the former employer, which is not, in my opinion, conclusive. It suffers from the inadequacy described by Marceau J.A of the Federal Court of Appeal in Choinière ( A-471-95)   Judgment Of The Federal Court Of Appeal. This first flaw is then coupled with what I consider to be the Board's ignorance of the relevant facts of the issue. If the claimant was ill and was without a telephone, yet the Board made a blank statement that no one works should be without a telephone. This is not an acceptable rationale. The appeal was allowed.
    Appellant: Christopher Wesley
    Date: 1999

    CUB 46263 - The appellant had not been given notice that he had been dismissed from his employment for misconduct and submitted that this failure denied him principles of natural justice. In this case, the Board of Referees failed in three respects. First of all, they failed to make findings of fact on the critical issue in dispute. Secondly, they failed to reach a conclusion on the very issue in dispute. Thirdly, they took into consideration a matter that was not in dispute before them, namely, whether the appellant lost his employment because of misconduct...the Board erred in law in deciding the case upon the issue of whether the appellant took corrective action to protect his job. Since the Board did not make any findings of fact or indicate what corrective action the appellant was supposed to have taken, I am unable to understand what they meant by this conclusion. The appeal was allowed.
    Appellant: Robert Court
    Date: 1999

    CUB 48994 - The claimant is appealing a decision concerning undeclared earnings, penalty for false or misleading statements and a notice of a very serious violation. It is difficult if not impossible to find clearly expressed or presented the Board's conclusions on questions of fact that its members considered essential to support their decision. It is not enough to sum up the decisions of the Commission and to conclude " after having examined the matter" that the Commission's decisions seem well founded. The umpire returned the file to a newly constituted Board of Referees in order that its members hold a new hearing and make a decision pursuant to the requirements of subsection 114(3) of the Employment Insurance Act.
    Appellant: Reynaud Larocque
    Date: 2000

    CUB 60293 -The claimant, Ronald Jones, had established a claim for benefits effective November 18, 2001. His benefits were calculated to be $391.00, but it was later determined by the Commission that they had erred in this calculation. The rate was recalculated to be $381.00, not $391.00, this decision resulted in an overpayment of $381.00. The claimant appealed this decision to the Board, which dismissed the appeal. He then appealed the Board's decision. The claimant did not argue the calculation of benefits, but he is contesting the Commission's allegation that he had received 41 benefit payments and requested proof that this was the case. The Board concluded the Commission's decision should stay, but they did not refer to any evidence in regards to whether or not the claimant had received 41 benefit payments. On his appeal, the claimant stated that the Commission had not presented the proof of the total benefits or the number of payments that he had received. After a review of the docket, the Commission's counsel acknowledged that there was a confusion in the file as to the exact amount of benefits paid to the claimant and as to the exact number of payments he had received. The Board did not have the evidence to support its decision. The Commission had not proven its case and the Board should have allowed the claimant's appeal. The appeal was allowed.
    Appellant: Ronald Jones
    Date: 2004

    CUB 64599 -Counsel for the claimant appealed from a Board of Referees' decision regarding the amount of the penalty. In his notice of appeal, counsel maintained that the Board, after noting his client's financial situation, did not take into account the re-evaluation of the amount of the penalty. He claimed that the Board's decision contains an error of law. He also claimed that the decision does not meet the requirements of section 114(3) of the Act, since it does not explain why the Board failed to take into account the financial situation of the claimant. The claimant and other workers participated in a system whereby hours were banked. Counsel claims the employer imposed the system on the employees and that the appellants were simply victims of the scheme. The Umpire stated that the Board's decision with regard to the penalty was brief and did not contain reasons to support it. A new hearing was ordered.
    Appellant: Luc Lampron
    Date: 2005

    CUB 64737 -The claimant is appealing a decision of a Board of Referees which confirmed a ruling of the Commission to the effect that leaving employment was not, in the circumstances, the only reasonable alternative in his case. The claimant was working for a plant and after several years of services was informed the plant was closing. He was terminated. However, some period of time later, he was recalled to work an additional eight weeks to complete the cleanup prior to its closure. This work is unrelated to previous duties and of a different nature. The Board gives no consideration to the work he was asked to do, whether it was work for which he was qualified and whether in the circumstances, the request triggered a consideration of whether there should be an application of " significant modification of terms and conditions respecting wages and salary" . The Board, in the umpire's view, made several mistakes for which it had to account. He set aside its decision and returned the matter to a new Board.
    Appellant: David Stocker
    Date: 2005

    CUB 72217>- The claimant did not appear before the board of referees. She notified the Board that she had two young siblings at home to care for and thus requested to have an adjournment. This request was not honored and the Board proceeded in her absence. Umpire returned the appeal to a new Board. Appellant: Claimant Date: 2009

    CUB-72831-The claimant filed a benefit claim, which was established effective October 24, 2004. The Commission subsequently determined that the claimant was not unemployed because he spent time working in his business and that his goal was to make the business his principal means of livelihood. A disentitlement was imposed, resulting in an overpayment. The Umpire found that the Board failed to take the claimants circumstances into consideration and returned the appeal to a new Board. Appellant: Claimant Date: 2009

    p>CUB 75562 Umipre Decision - The claimant lost his employment as a result of poor attendance at his place of work. The claimant was informed that any further violation of absences in the next 12 months would be the subject to immediate termination¬. There was another absence and the claimant was terminated. The claimant alleged he had an emergency phone call from his mother to take her to the hospital. He tried to leave a written note at Human Resources but the office was closed and the note would not fit under the door. The appeal is allowed to the extent there is a return to a differently constituted Board; the claimant will have to produce the required notice of absence without which the Board is not compelled to review the entire file.
    Appellant: Claimant
    Date: 2010

    CUB 75593 Umipre Decision - The claimant was denied benefits as a result of voluntary leaving his employment. The appeal was returned to a differently constituted Board as there is inconsistency in the file; the Record of Employment states the claimant was allowed to leave the company which was downsizing and a pay adjustment was required. The employer gave a different version of events. The Umpire returned the matter to a differently constituted Board because they failed to address the inconsistencies in the file.
    Appellant: Claimant
    Date: 2010

    CUB 75889 Umipre Decision - The claimant challenged the Board’s decision on the basis of an alleged factual error made in con¬nection with his evidence that indicated that he had appropriately notified his employer of his reason for not reporting to work. The sole issue presented by this appeal concerns the adequacy of the Board’s reasons in dealing with the conflicting evidence between the parties. The claimant and his brother testified before the Board. They both claimed to have called the employer on a number of occasions to report the claimant’s illness. This evidence was disputed by the employer. The Board rejected the claim but their reasons failed to explain how the conflict in evidence was resolved. Therefore, the Umpire stated that the matter must be remitted for reconsideration by a different Board.
    Appellant: Claimant
    Date: 2010

    Evidence - Statements

    CUB 66573 - Commission appealed from the decision of a Board of Referees, which rescinded the Commission's decision to the effect that the claimant was not unemployed but that he was self-employed as an administrator. The Commission also accused the claimant of making false or misleading statements. The Board of Referees set aside a statement and clearly stated that it gave no weight to the statement. It also concluded that the claimant alleged that he would not have signed the statement had he been asked to, and that the statement was erroneous. Without the support of this evidence, the Board rescinded the Commission's decision. The Umpire stated that at its discretion and with supporting reasons, the Board of Referees can set aside a statement that seems unsound or incomplete. The Commission's appeal was dismissed.
    Appellant: Commission
    Date: 2006

    CUB 71975 - Claimant appealed the decision that she had lost her job due to misconduct. The Board majority decision noted the argument of appellants representative that direct testimony given to a Board has precedence over evidence based on hearsay or the uncorroborated statements of a Commission agent. The Umpire determined that the Board dismissed the claimant’s testimony without explaining why they did so. The Umpire returned the appeal to a new Board. Appellant: Claimant Date: 2009

    Grounds for Appeal - Without Regards for Material

    CUB 37391 - Where there is a direct contradiction an Umpire can find that ignoring clear oral evidence in preference for hearsay written statements can amount to an erroneous finding of fact made by the board without regard for the material before it. The appeal was allowed.
    Appellant: Daniel Banks
    Date: 1997

    CUB-72132- The claimant appealed a ruling of the Commission that she voluntarily left employment without just cause. The proceeding was not recorded. The claimant felt she did not get a fair hearing and the Board was alleged to have made rather derogatory remarks and several improper comments about both the claimant and the circumstances she found herself in. The Umpire decided that the appeal should be heard again before a newly constituted Board of Referees. Appellant: Claimant Date: 2009

    Hearings - Attendance of a Third Party

    CUB 25210 - Board failed to observe a principle of natural justice by denying the appellant and respondent the opportunity of a witness. The appeal was allowed and returned to a new Board of Referees
    Appellant: Diane Ludlow
    Date: 1994


    Cub 29211A/A-708-95 Judgment Of The Federal Court Of Appeal - The issue in this case was: does the Board of Referees or the Umpire have the power to intervene in respect to a decision made by the Commission in the exercise of discretion in the determination of the amount of a penalty which may be levied on a claimant. In order for this to happen it must appear to the Board of Referees that the decision was made without regard for a relevant consideration. Moreover the Board of Referees is not limited to the facts that were before the Commission, it may also assess the facts that come to it's own attention. Therefore the Board of Referees and the Umpire may intervene and set aside a discretionary decision of the Commission and give the decision that should have been given in the first place. The Umpire stated,

    " there has never really been a doubt that the decisions made by the Commission in the exercise of its discretionary powers are no longer sheltered from challenge before the other two decision-making bodies created by the act: the Board of Referees and the Umpire. The clear and unreserved terms of the Act make it impossible to believe otherwise...I have no hesitation in believing that we would not be betraying the intention of Parliament if we said that the Board of Referees is not limited to the facts that were before the Commission...The board may find such an essential consideration which the Commission ignored, in the material brought to its attention...this makes it (the Board of Referees) the central body for protecting the rights of insured persons which is necessary if the provision of the act are to be administered soundly...It is the duty of the Board of Referees to intervene if it appears that the discretionary decision of the Commission was made without regard to it or out of ignorance, and then to refer the matter back to the Commission or to decide the case itself if it believes it is in a position to do so properly."

    The Federal Court ordered the case back before a Board of Referees saying " for it to hear the respondent and decide the question of whether the quantum of the penalty was determined by the Commission without regard for a relevant consideration" .
    Appellant: Christine Dunham
    Date: 1997

    Principles of Natural Justice

    CUB 43149 - In this appeal the appellant says that he was deprived of the right to cross-examine witnesses and that the procedure was unfair and a denial of natural justice. The chairperson has considerable power in deciding how a hearing is conducted. While there is no obligation to permit cross-examination of witnesses, there is a requirement of procedural fairness. In this case, it is clear that the credibility of the witnesses is crucial to the outcome. Surely the chairperson might have permitted counsel for the appellant to suggest questions to be asked by the chairperson. The Board's decision has a perceived error of law, a reviewable error. There is no onus on the appellant until a prima facie case has been made out. The appeal was allowed.
    Appellant: William Dean LeBlanc
    Date: 1998

    CUB 44249 - The claimant and seven other employees quit their jobs over a dispute about payment or non-payment of an incentive bonus for the shift they worked...The employer offered them half of the bonus as a compromise but the workers rejected the offer and quit their jobs...The contention is based on the fact that a two page letter from the employer that was faxed and mailed to the clerk of the Board eight days before the hearing was not given to Mr. Lam until the start of the hearing. Mr. Lam is Vietnamese...and does not have full command of English...Mr. Lam did not have the ability (and therefore the opportunity) to effectively respond to the employer's letter. The right to a fair hearing includes the right to know the case one has to meet, to fully present one's case, and to have an adequate opportunity to respond to submissions of an opposite party. The Umpire found this constituted a denial of natural justice and referred back to a new Board of Referees.
    Appellant: Phat Lam
    Date: 1999

    CUB 46055 - The claimant requested that the Board of Referees' decision be rescinded and that these cases be returned to another Board because her clients had allegedly been the victims of a denial of natural justice. There was a third adjournment, but it was certainly justified by the circumstances which were provided in this case. By refusing the adjournment under the aforementioned circumstances, the Board refused to hear the other party (audi alteram partem), which is a denial of natural justice. The appeal was returned to a new Board of Referees.
    Appellant: Marie Mercier
    Date: 1999

    CUB 48293 - The claimant and his counsel are appealing the decision of the Board on the basis that he didn't receive a reasonable opportunity to present their case to the Board, as well as they believe that the hearing was not conducted in an impartial manner. In the final decision put out by the Board it says:

    " If Mr. Thompson is confident that discrepancies exist, he should discuss those with the Commission."

    If this statement is taken at face value then it appears that the Board is refusing to exercise its jurisdiction. If there was discrepancies in the manner that the overpayment was calculated then the Board's duty was to identify them and rule accordingly. The appeal is allowed and the matter returned to a newly constituted Board.
    Appellant: Harjinder Sahota
    Date: 2000

    CUB 51177 - The claimant stated that the reason he was quitting was to give him time to enroll into training courses that would enable him to secure a more skilled job with better pay. He was not enrolled in any course at the time he quit his employment. The Board found that the claimant's desire to upgrade his skills did not constitute just cause. The claimant gave an account of his medical problems which left him with little energy to do the job and the course. The claimant stated to the Umpire that he felt he didn't have a full opportunity to present his case. The claimant had just received a bone marrow transplant that left him with even less energy than before. The claimant stated that during his presentation to the Board he was cut off while trying to give his evidence. The Umpire gave the claimant the benefit of the doubt saying that he was a honest and straightforward man who may have been intimidated before the Board. In the Umpire's opinion this was a denial of natural justice. The appeal was allowed and returned to a new Board of Referees.
    Appellant: Manssor Mashaikhi

    CUB 63552 - The Commission had determined that the claimant filed false information and had imposed a penalty. At the hearing of her appeal, the claimant did not appear. With her notice of Appeal to the Umpire, she submits that she did not receive notice of the hearing. In light of the issues before the Board, the claimant's oral testimony may have affected the Board's decision. In this case, the Commission acknowledges the possible breach of justice. The matter was referred back to a newly-constituted Board.
    Appellant: Jasmine Morel
    Date: 2005

    CUB 68214 - The claimant appealed on the basis of natural justice the decision of the Board of Referees because he was not able to attend that day because he could not get away from work. The Umpire ordered a hearing de novo under the circumstances. The appeal was allowed.
    Appellant: Steven Alexander
    Date: 2007

    CUB 68619 - The claimant appealed on the basis on natural justice that he had not been able to attend his hearing because he was not in the region at the time. The claimant had had one adjournment which had been granted but when he requested a second postponement because he was out of the region he was refused and the Board proceeded with the appeal. The Umpire found that the matter should be referred back for a hearing de novo. The appeal was allowed.
    Appellant: Hans Harry Der Von Felix
    Date: 2007

    CUB 73350 - Claimants appeals Board decision on grounds of natural justice because they did not receive a notice of hearing. The Umpire ordered a hearing de novo before a differently constituted Board. Appellant: Claimant Date: 2009

    Role of the Board of Referees

    CUB 25402 - The claimant’s estate was represented before the Board in a case where the claimant had appealed the decision that he had not worked the minimum weeks in the qualifying period to establish a claim. The estate claimed that the reason the claimant did not have enough weeks was because the Commission had renewed a previous claim rather than start a new claim. The claimant’s position was that he had told the Insurance Officer that he wished to begin a new claim. The Umpire found that the Board was correct in determining that he did not meet the qualifying criteria . But the Umpire did find that based on the facts and credibility of the claimant the real issue in this case may have been the possible wrongful termination of the benefits and the Board should have recognized that fact. He found the Board failed to exercise its jurisdiction and referred the matter back to the Board for a rehearing. Appellant: Claimant Date: 1994

    CUB 48293 - The Board undertook its task under a fundamental misunderstanding of its role. If 'discrepancies' did exist in the manner in which the overpayment had been calculated, it was the Board's duty to identify them and to rule accordingly. To suggest that the complainant should 'discuss' them with the Commission, which had already ruled against him in the matter, was a clear abdication of the Board's responsibilities. The appeal was allowed.
    Appellant: Harjinder Sahota
    Date: 2000

    CUB 66233 - There was a question of whether the claimant had voluntarily left their employment or had been dismissed for misconduct. The Umpire indicated that the Board was responsible for determining if the employee had left their employment voluntarily or if they were dismissed for misconduct. They failed to rule on the issue and therefore, the Umpire returned the docket to be heard by a differently constituted Board. Appellant: Commission Date: 2006

    CUB 66496 - The claimant worked for the employer on a work permit, valid from May 12, 2004 to May 12, 2005. Since the employer had not made an application to extend or renew his work permit, the claimant left his employment because he expected to be terminated. The employer refused, contrary to section 19(2) of the Employment Insurance Regulations to issue a Record of Employment to the claimant, arguing that the claimant owes the restaurant $400.00 for damage done to a plate glass door which the employer later claimed was $5,000.00. The claimant damaged the door by backing a truck into it. Following this incident, he did not return to work. The claimant argued before the Board that the employer made him work sixty hours per week, without any overtime pay. In addition to this, he also stated that the employer had promised the claimant a vacation trip to Nepal which the claimant never received and that he was required to perform jobs other than the chef's work for which he was hired (such as loading and unloading the truck). The Board allowed the claimant's appeal on the grounds that he had just cause for leaving his employment. The employer appealed this decision arguing that the Board exhibited bias toward him at the hearing and it misinterpreted the facts. The Board considered all of the evidence in the file as well as the submissions of the parties at the hearing before it. The Umpire stated that Board's preference for the evidence of the claimant is entirely within its jurisdiction as trier of facts. Employer's appeal was dismissed.
    Appellant: Taj Mahal Restaurants Ltd.
    Date: 2006

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