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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 April 9, 1996 at Barrie, Ontario.



    This matter came on for hearing at Barrie, Ontario on March 11, 1997.

    The issues under appeal are whether the claimant lost his employment by reason of his own misconduct and whether the disqualification should apply for each week in the benefit period following the waiting period pursuant to subsections 28 (1) and 30.1 (1) of The Unemployment Insurance Act.

    The claimant and one Lee-Anne McCallum, the company's solicitor appeared before the Board of Referees. No representative of the employer appeared.

    The employer takes the position that the claimant was dismissed on January 12, 1996 for misuse of company property for personal gain and for placing the health and safety of other employees, clients of the employer and the public, at risk. The employer alleges that the claimant was transporting narcotics during working hours, in the employer's vehicle and was trading company products in exchange for narcotics.

    McCallum admits in Exhibit 13-1 that much of the contents of her letter of March 4, 1996 (Exhibit 112) to the Commission is essentially a summary from information obtained from Edwards of the employer. Such evidence is fraught with problems. How accurate was Edwards' information and how accurate has McCallum reported it in her letter? A Board of Referees may determine its own procedure and admit hearsay evidence but proper weight should be given to hearsay evidence.

    The Board of Referees found:

    "The claimant admits to receiving a narcotic and only had it in the company vehicle until he returned to his own vehicle." (Exhibit 22-2)

    The claimant admits that he was in possession of marijuana but categorically denies that he had it in the company vehicle, rather that it was in his personal vehicle (Exhibits 16-1, 16-2).

    The Board of Referees has failed to make reference to such evidence.

    Where there was clear contradiction between the evidence of the Commission and that of the claimant the claimant should have been given the benefit of the doubt.

    The Board of Referees found that the claimant was aware of and had signed his copy of the company's safety handbook. This handbook which is filed as Exhibit 20 states in Section 1.5 that the use of drugs while on duty is forbidden. There is no evidence that this handbook was signed by the claimant nor is there any evidence as to the meaning of "duty" as the word is used in Section 1.5. The Board of Referees erred in law in finding that the claimant had signed the handbook.

    The Board of Referees has found that the claimant had admitted to using an illegal substance while on cal1. There was no evidence before the Board of Referees as to whether these words "duty" and "on call" were interchangeable.

    Where there is a direct contradiction, an Umpire can find that the ignoring of 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 and I so find.

    The appeal will be allowed.



    March 19th, 1997.