CUB 43808

IN THE MATTER of an appeal to an Umpire by the claimant from a decision by the Board of Referees given on September 24, 1997 at Vancouver, British Columbia.

DECISION

The Commission issued a ruling pursuant to s. 19 of the Employment Insurance Act, alleging that the claimant had undeclared earnings from waterfront employers, and that between the dates of November 11, 1996 and January 18, 1997 he had substantial undeclared earnings. A second ruling alleged the claimant also had undeclared earnings from the same employer from January 27, 1997 to March 1, 1997.

As a result of these, the Commission further ruled he made false or misleading statements for which penalties were imposed pursuant to s. 38 of the Act.

The rulings of the Commission were appealed to a Board of Referees, which in its decision unanimously dismissed the appeal. I reproduce Exhibits 18-2 and 18-3, the relevant portion of the Board's decision:

Tle Commission reviewed this claim and determined there were two instances of undeclared earnings:

November 11, 1996 - January 18, 1997 and
January 27, 1997 - March 15, 1997

Additionally, the Commission determined claimant made two false and misleading statements and imposed a penalty of $2, 046.00. Total amount owing: $4, 092.00.

As a result of the above findings (re: undeclared earnings), this is considered a serious offense on the part of the claimant and requires a qualification of 630 to 1050 hours for future claims.

In his letter of appeal submitted by Manjeet K. Chana, the Commission is requested to provide information regarding the calculation of the overpayment.

It is further suggested that work schedules vary along with rates of pay which could have contributed to the confusion. Additionally, it is suggested that errors were made by employer on pay cheques.

Finally, claimant states he did not knowingly make false statements.

FINDINGS:

Per claimant's request, new evidence provided by the Commission, was submitted in Ex. 17.1 - Ex. 17.7.

In his testimony, the claimant reiterated that because of his employer's mistake and changes in shifts and hourly rate, he was not sure of his earnings and states that this resulted in an honest mistake.

The Board finds that the employer's records and the pay stubs are consistent, clearly showing earnings. The Board notes that on each report card only one week is shown to have earnings and the other week nil.

This denotes a pattern which leads the Board to conclude that earnings were deliberately not reported.

Finally, the Board does not accept claimant's statement that the omissions were honest mistakes. If they were, why were true earnings not reported on subsequent report cards.

In summary, the Board concurs with the findings of the Commission and has relied on the jurisprudence cited in reaching its decision.

DECISIONS ON FOUR ISSUES ARE AS FOLLOWS;

Earnings - the appeal is dismissed.
Earnings - the appeal is dismissed.
Misrepresentation - the appeal is dismissed.

The Board is the trier of fact, and an Umpire does not easily trample upon such a finding as it had the best opportunity of observing witnesses, their demeanour and behaviour under questioning.

I am satisfied that my intervention is not warranted. I note no transgression of s. 115 of the Act, and the test applied with respect to the statement is well-founded upon the decision of the Court of Appeal in Gates (A-600-97).