IN THE MATTER OF the Unemployment Insurance Act, 1971
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IN THE MATTER OF a claim for benefit by
Kenneth McIvor
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IN THE MATTER OF an appeal to an Umpire by the Claimant
from a decision of the Board of Referees given at
Edmonton, Alberta on August 27, 1986.
DECISION
STRAYER J.
The claimant was in receipt of benefits commencing in April, 1986. The Commission was advised by the claimant's former employer Concord Well Servicing Ltd. on June 9, 1986 that it had recalled the claimant and certain other persons for work commencing May 22, 1986 and they declined to come back to work. After interviewing the claimant and the Office Manager of the employer on July 2, 1986 the Insurance Officer issued a notice to the claimant on July 25, 1986 advising him that he was disqualified for six weeks benefits because he had been aware of an opportunity for suitable employment and had refused without good cause to accept that employment, all as provided by subsection 40(1) of the Unemployment Insurance Act. The claimant appealed that decision and he and his father appeared before the Board of Referees. It appears from the decision of the Board that it had information that the employer had issued its recall on April 18, 1986. It appears from the file that the claimant, corroborated by his father who said he would have received the call had the claimant been absent from home, denied ever having received any recall. The only evidence that the Board had before it that the claimant had been recalled was the letter of June 9th written by the Office Manager in which she referred to the recall of several employees, and the record of an interview with the same Office Manager on July 2nd when she admitted that she had not herself contacted the claimant to recall him. At that time she said that she had talked to the Operations Manager who said that he had been in touch with the claimant and advised him of a recall. The Board upheld the decision of the Commission. The claimant appeals the decision of the Board under paragraphs 95(a) and 95(c) of the Unemployment Insurance Act.
As I have held previously (see CUB 10720) I believe it is open to the Umpire to find where a Board of Referees ignores clear oral evidence, in this case corroborated by other oral evidence, and prefers instead hearsay statements on the record (double hearsay in this case, being a record by the Insurance Officer of a conversation with the Office Manager of the employer who in turn was relating what she had been told by the Operations Manager) then the Board can be found to have made an erroneous finding of fact without regard for the material before it. I would therefore allow the appeal, set aside the decision of the Board of Referees, and order a new hearing by a different Board. While it is not for me to dictate how that hearing can be conducted, it appears to me to be important that the Board should not readily ignore direct, oral evidence, which is subject to cross-examination, in favour of indirect hearsay that is subject to no cross-examination. The employer appears to have been quite prepared to bring about the termination of the claimant's benefits. If it is interested in doing so, it should be prepared to have a representative present who can provide some direct evidence of the notice of recall.
Original signed by
B.L. Strayer
Umpire
OTTAWA, ONTARIO
March 6, 1987