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    - and -

    IN THE MATTER of a claim by

    - and -

    IN THE MATTER of an appeal to an Umpire by the claimant
    from a decision by the Board of Referees given on
    February 28, 1992 at New Westminster, British Columbia




    The Honourable R.J. Marin, Umpire

    This hearing came before me at Vancouver on April 19th, 1994.

    There were three issues before the Board: that the claimant was not available for work pursuant to ss. 14(a) and 23 of the Act; was self-employed under the provisions of ss. 8 and 10 of the Act and Regulation 43(l)(a); finally, there were misrepresentations under s. 33 of the Act.

    On appeal before the undersigned, the appeal was limited to one issue only, the issue of misrepresentation pursuant to s. 33 of the Act. The other two issues having been abandoned on appeal, the Board's ruling will be affirmed with respect to questions I and 2 raised as issues on appeal from the Board.

    Having regard to the sole issue raised, the allegation of misrepresentation under s. 33 of the Act, the facts appear to be simple. The claimant was unemployed and in receipt of benefits. In conjunction with others, she launched a small company named Inky Printers Limited. The company was in a line of business with which the claimant was familiar and she was to have been in charge of sales for the company.

    The only evidence on record with respect to the investment by the claimant is the sum of $500 out of a total of $20,000 invested by all partners. It is uncontested that, during the period under review, the claimant did not directly receive any money, either in pay or for commission. She had the expectation of receiving an amount of money and clearly admits that amounts were expected some weeks after the matter was brought to the attention of the Commission.

    It is argued that in law the Board has erred in its decision in suggesting as it did at page 2:

    The Board has reviewed the docket and considered new evidence presented and marked as Exhibit 26.1 and 26.2 and finds that it is the responsibility of the claimant when applying to be supported by public funds to educate herself as to what "Did you work?" means.

    The suggestion of counsel for the claimant is that the decision is flawed insofar as it makes no finding with respect to s. 33, namely, whether the claimant had the intent to deceive; in the absence of such a finding, it is the view of counsel that the decision of the Board cannot be sustained.

    I note in passing another flaw in the Board's decision as it purported to decrease the penalty; since there is no cross appeal in this matter, I will not disturb that disposition of the Board. In any event, in light of the manner in which I propose to dispose of this appeal, that error becomes irrelevant.

    Did the Board err with respect to its findings as to the claimant's representation? The fact that she was not receiving any remuneration does not necessarily mean that she was not working for the purpose of'the Act; the statement Made Must have a quality of wilful deception attached to it.

    I am prepared to allow the appeal because I am satisfied that, before s. 33 is made to apply, the statement must be made knowingly with the general intent to deceive or mislead, and there must be the existence of an intention to deceive. I do not ascribe a criminal burden of proof to s. 33; I simply conclude that there was a misunderstanding on the part of the claimant, and the misunderstanding is well documented on the record.

    T'he Board erred in not applying itself to the facts before it and in concluding that even an innocent misunderstanding can lead to misrepresentation under s. 33 of the Act. I am satisfied that the error of the Board is sufficiently serious to warrant my intervening in the circumstances and reaching the decision the Board ought to have reached in the first instance. The appeal will, accordingly, be allowed and the decision of the Board will be rescinded insofar as the issue of misrepresentation is concerned.

    In all other respects, the ruling of the Insurance Officer will apply and the overpayment, if any, will have to be reimbursed. In light of my finding on the issue of misrepresentation, this appeal is allowed and the penalty will be set aside.

    R.J. MARIN


    OTTAWA, Ontario
    August, 1994