IN THE MATTER OF the Unemployment Insurance Act
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IN THE MATTER OF a claim for benefit by
Conita CHAN
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IN THE MATTER of an appeal to the Umpire by
the Canada Employment and Immigration Commission
from a decision of the Board of Referees given at
Calgary, Alberta on November 8, 1991
CORRESPONDING FEDERAL COURT DECISION: A-185-94
DECISION
ROTHSTEIN J.:
On April 30, 1993, I issued a decision in an appeal by the Canada Employment and Immigration Commission from a decision of a board of referees. The issue in the case was whether the claimant was justified in delaying the making of her claim for unemployment insurance benefits. I found that there was no material before me to indicate whether or not the claimant had good cause for delay. Further, I found that the board erred in law in allowing the claimant to backdate her claim without a finding of "good cause for delay". The appeal was allowed and it was ordered that there should be no backdating of the claimant's claim.
By letter received by the Office of the Umpire on June 10, 1993, the claimant requested reconsideration of my April 30, 1993, decision pursuant to section 86 of the Unemployment Insurance Act, R.S.C. 1985, c. U-1, as amended. By decision dated September 13, 1993, I found that, at that time, the claimant had not presented new facts which did not exist at the time of the original hearing. I also stated that I was not satisfied that my decision of April 30, 1993, was given without knowledge of some material fact, or that it was based on a mistake as to some material fact, and I dismissed the application for reconsideration.
By letter of October 30, 1993, the claimant made a further request that I reconsider her case. She put forth the following information as the basis of her application to reconsider.
I was laid off on Jan 21/91. I called my local U.I.C. office on the following working day to obtain information regarding procedures of filing for U.I.C. I explained to the U.I.C. office that there was a mistake on the Record of employment. I was advised that I had up to one year to file for my claim. However, I was not advised of the consequence that I would lose part of my benefit due to late filing. Should I was [sic] advised of this consequence, I would file for my claim at that time instead of waiting for the corrected record of employment from my ex-employer. I did suffered [sic] job loss and loss of income from the date I was laid off.
The above additional information/facts was never considered previously. I just recalled the reason why I waited for the corrected record of employment.
By letter dated February 7, 1994, the Unemployment Insurance Commission submitted that the application should be dismissed as the claimant did not present any "new facts" as required by section 86 of the Act. The Commission's counsel cites André Tremblay, CUB 7349, a decision of Addy J. Based upon that decision, the Commission submitted that the facts which the claimant was attempting to introduce were all facts which existed at the time of the hearing and which the claimant could have adduced at that time.
Another approach to the reopening of decisions was that of Reed J. In Dennis Kshyk, CUB 10587. In that case, at pages 7-9, Reed J. states:
The parties are normally not represented by counsel; they often do not bring forward to the Board all the relevant evidence. The summary nature of the procedure is obviously necessary as a practical matter to deal with the volume of cases, and usually it is entirely satisfactory. However, section 102 [now section 86] clearly indicates that a safety valve was needed.
I am aware that there are two interpretations of this section adopted in the jurisprudence. One is to take the position that section 102 only allows for new evidence after the Umpire has found a failure in the Board's decision of the nature set out in section 95 or when the new evidence is presented to the very body which made the decision being challenged. The second is to take the position that new evidence may be introduced at any time providing it was not before the lower tribunal. Thus new evidence not presented to the Board of Referees and evidence not presented to the Board of Referees might be presented to the Umpire.
With respect to the first position, section 102 would be redundant insofar as its effect was merely to allow an Umpire to hear new evidence after finding a defect under section 95. Authority to determine any fact in order to finally determine an appeal under section 95 is already available to the Umpire pursuant to subsection 96.
There is no doubt that section 102 allows a body to review a decision taken by it on the presentation of new evidence.
In my view, the second position set out above, is more in keeping with both the wording of the section and the appeal procedures established thereby. Section 102 provides that "the Commission, a board of referees or the umpire may in respect of any decision given in any particular claim" alter the decision on the basis of new evidence presented.
But, having in mind the nature of the proceedings, where claimants are usually unrepresented at all levels, where they often do not know or understand the evidence they should place before the decision making bodies, or even the questions they should address, not to mention the legal concepts involved it is not surprising to find section 102 worded as it is, to allow the reception of new evidence by the Umpire, which was not available to the Board.
I am satisfied that the rationale of Reed J. represents a modem approach to the object and purpose of section 86 of the Act. It is particularly important to remember that in the context of section 86, claimants are usually unrepresented by counsel and cannot be expected to know and understand the evidence they should place before decision-making bodies or the questions that they should address.
I am prepared to reconsider the matter on the basis of the new facts submitted by the claimant. The Commission submitted that if I was of the view that the claimant had submitted new facts, that the Commission be granted leave to amend the record to file evidence and/or make representations to rebut and/or explain the new facts presented by the claimant. The request of the Commission is granted. The Commission's submission should be filed within three weeks of its receipt of this decision. The claimant shall have the right to reply to the Commission's submission and should file her reply within two weeks of the date she receives the Commission's submission. A decision on the merits will be made when I am in receipt of these submissions.
Marshall Rothstein
juge-arbitre
OTTAWA
March 17, 1994