CUB 21932

CUB 21932

October 15, 1992 le 10 août 1993

le 15 octobre 1992 August 10, 1992

APPELLANT: Commission

DECISION: Allowed

CLAIMANT: Kari KUIKKA

DECISION

MacKAY, J., UMPIRE:

This appeal by the Commission from the decision of the Board of Referees was heard in Toronto on June 30, 1992, when Mr. Kuikka, the claimant, acted on his own behalf.

The claimant applied for benefits on January 16, 1991. He indicated on his application that he had been dismissed from his employment with Superior Propane Incorporated. In a telephone interview with the employer, the Commission was advised that Mr. Kuikka had violated company safety policies by not contacting a service person after he discovered a leak while filing a customer's tank. The employer also indicated that Mr. Kuikka used foul language with the customer. Mr. Kuikka was notified by letter dated February 28, 1991 that he was disqualified from receiving benefits for twelve weeks on the ground that he had lost his employment by reason of his own misconduct. He appealed to the Board of Referees which dismissed the appeal but reduced the period of disqualification to six weeks. The Commission now appeals the decision of the Board of Referees to reduce the period of disqualification to six weeks on the ground that the Board erred in law.

At the hearing, Mr. Kuikka inquired if he could address the finding of the Board that he had been dismissed by reason of his own misconduct. The Commission objected to this request. Mr. Kuikka had not filed an appeal on this issue, either within sixty days after the Board of Referee's decision was communicated to him, as required by s. 82 of the Unemployment Insurance Act or within any extended period permitted at his request pursuant to s. 82. I therefore determined that I was unable to hear submissions on this matter.

Mr. Kuikka also raised the issue of delay of more than one year in hearing this appeal. I indicated at the hearing that it was unlikely that I would dismiss the appeal on that basis but that I would set out my reasons for my conclusion on this question.

In R. v. Askov, [1990] 2 S.C.R. 1199, the Supreme Court of Canada dealt with the issue of delay in a criminal prosecution in light of s. 11(b) of the Canadian Charter of Rights and Freedoms, which provides:

11. Any person charged with an offence has the right

(b) to be tried within a reasonable time;...

In Askov the defendants were charged with criminal offences in November 1983 and the trial only began in September 1986, a delay of three years. To determine whether a delay has been unreasonable, the Court indicated four factors to be considered: the length of the delay, the explanation for the delay, waiver, and prejudice to the accused.

Later in R. v. Morin, [1992] 1 S.C.R. 771, the Supreme Court modified Askov, indicating that an inquiry into unreasonable delay should only be undertaken if the period is of sufficient length to raise an issue as to its reasonableness. A shorter period of delay may raise the issue if the applicant shows prejudice, as for example, if the accused was in custody. The Court in Askov, supra suggested a guideline of six to eight months as the maximum for delay but in Morin, supra, suggested eight to ten months and indicated that the application of the guideline would be influenced by the presence or absence of prejudice.

Both Askov and Morin were cases of criminal prosecutions arising under Charter provisions specifically dealing with rights under criminal law. Here we are not dealing with a criminal or even quasi-criminal prosecution. The anxiety, concern and stigma attached to being charged with a criminal offence referred to in above cases do not exist here.

Moreover, jurisprudence dealing with delay relates to the time before a decision is reached, not the time elapsing between appeals. Here the original decision by the Commission was made February 28, 1991 following the claim made by Mr. Kuikka on January 16. The Board of Referees' decision was made April 2, 1991. The appeal came before me on June 30, 1992, and this delay of over one year is the crux of the issue raised by the claimant. I do not believe that prejudice can be inferred from the delay in this case and the claimant has not presented any evidence of prejudice.

That delay is regrettable, as is my own delay in filing these reasons. Reducing the times for both of these would require different arrangements than are now provided. But delay of this sort is not a ground on which the appeal by the Commission should be dismissed. Nevertheless, I refer a copy of this decision to the Chief Umpire for his attention.

As noted earlier, the Commission appeals the decision of the Board of Referees to reduce the period of disqualification from twelve to six weeks. The appeal is made pursuant to s. 80(b) of the Unemployment Insurance Act, alleging the Board erred in law.

Section 30 the Act provides:

(1)Where a claimant is disqualified under section 27 or 28 from receiving benefits, the disqualification shall be for such weeks for which benefit would otherwise be payable following the claimant's waiting period as are determined by the Commission.

(1.1)The number of weeks of a disqualification arising under paragraph 27(1)(a) or (b), or under section 28, shall be not less than seven and not more than twelve.

It was determined by the Commission and upheld by the Board of Referees that the claimant lost his job by reason of his own misconduct under section 28 of the Act. Under section 30, the minimum period of disqualification for this is seven weeks. I must conclude that the Board erred in law in reducing the disqualification period to six weeks when the Act indicates that seven weeks is the minimum penalty.

The Board of Referees found that there were extenuating circumstances which warranted reduction of the disqualification period. At the hearing before me the Commission did not contest the matter of extenuating circumstances found by the Board, but only that the Board fixed a disqualification period at less than the minimum mandated by the law.

The Commission's appeal is allowed and the period of disqualification is set at seven weeks, the minimum term under the Act.

UMPIRE