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    CUB 48293

    IN THE MATTER OF the Employment Insurance Act;

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    - and -

    IN THE MATTER of an appeal to the Umpire by the claimant from a decision by the Board of Referees given on October 7, 1999, Nanaimo, British Columbia.



    This is an appeal to the Umpire from a decision of the Board of Referees which dismissed the claimant's appeal.

    The claimant filed a claim for benefits established on September 21, 1997. During the benefit period, the claimant was employed with Doman Forest Products Limited. The employer reported that the claimant earned a total of $13, 519.87 during the period of October 2, 1997 to May 9, 1998 and a total of $4, 987.56 during the period of May 24, 1998 to July 4, 1998, whereas the claimant reported a total of $12, 561.00 for the first period of employment and $3, 360.00 for the second period of employment. The claimant did not explain the discrepancy but instead provided information regarding his insurable earnings for each pay period with the periods of employment and copies of his pay-statements. Based on this new information, the total earnings during the period of October 2, 1997 to May 9, 1998, reported by the employer was adjusted to $14, 023.41.

    The Commission concluded that the money received by the claimant as wages from Doman Forest Products constituted earnings pursuant to subsection 15(2) of the Regulations. The Commission further concluded that the claimant did not knowingly fail to declare some of his earnings. Therefore, in accordance with subsection 19(3)(a)(ii) of the Employment Insurance Act and section 15 of the Regulations, the Commission deducted earnings from the benefits paid during the period of employment, which resulted in an overpayment of $1, 782.00.

    The claimant appealed the assignment of undeclared earnings indicating he did not agree with the overpayment established as a result thereof.

    As previously indicated, the Board of Referees dismissed the appeal and the claimant has further appealed to the Umpire.

    In his letter launching the appeal to the Umpire, the claimant's representative sets out the grounds of appeal in the following terms:

    We are initiating this appeal on the grounds that we did not receive a reasonable opportunity to present our case to the Board of Referees. It is also our contention that the hearing was not conducted in an impartial manner.

    At hearing before the Board of Referees, once I had briefly outlined the basis of the appeal, Chairperson Summers refused to let me make my presentation, ruling that the Commission's interpretation of the Act and the Regulations could not be questioned. He also refused to allow me to argue the relevance of the CUBS cited in the Commissions observations.

    When Referee Davey started to ask me one question regarding the appeal, Chairperson Summers stopped her in mid-sentence and refused to allow her to complete the question. When I offered to respond to Referee Davey's question, the Chairperson refused to let me say anything. Referee McGuire did manage to ask me one question, but then he too was prevented by Chairperson Summers from asking another question.

    Having stopped myself and the other members of the Board of Referees from discussing our case the Chairperson then asked two or three questions on one small part of the information we had hoped to use and then ended the hearing.

    We submit that the actions of the Chairperson of the Board of Referees were contrary to Section 83.(1) of the Regulations which state, "A board of referees shall give each of the parties interested in an appeal a reasonable opportunity to make representations concerning any matter before the board."

    We further submit that the Chairperson overstepped his authority in preventing other members of the Board of Referees from hearing our full presentation of our appeal or asking any questions regarding our presentation.

    Regrettably, a review of the Board's decision reveals that these complaints are not without foundation.

    Under the heading `THE HEARING', the Board said in part as follows:

    Mr. Thomson contended that the Commission had incorrectly used some weeks when calculating the overpayment. He said that his research had led him to understand that any week in which benefits were not paid could not be considered a week in the benefit period. He opined, therefore, that the earned income and declared earnings for any such week could not be included in the calculation.

    The Chairman ruled that, for the purposes of this hearing, the benefit period would be defined as the period from the date the claim is established until the date the claim is terminated and that each week within that period would be considered a week within the benefit period. The only matter to be determined, therefore, is whether the amounts declared by both the employer and Mr. Sahota were correct.

    Even assuming that the Chairman properly understood the submission being made on the claimant's behalf and whether or not he was right in his understanding of the law, he clearly erred in taking it upon himself alone to in effect dismiss a part of the claimant's appeal. That appeal, by law, was to the Board and not to the Chairman. The Chairman enjoys no special prerogative of ruling on the whole or part of a claim without reference to the other members of the Board and that seems quite clearly to be what took place here. On this ground alone, the decision cannot stand.

    There is more, however. In the final paragraph of the section of its decision in which it discusses the evidence, the Board says: "If Mr. Thomson is confident that discrepancies exist, he should discuss those with the Commission." If this paragraph is taken at its face value, as in my view it must be, it constitutes a clear refusal by the Board to exercise its jurisdiction.

    The Board had previously indicated that it took a view of the evidence which was unfavourable to the claimant and the fact that it felt it necessary to add this additional paragraph indicates that the Board undertook its task under a fundamental misunderstanding of its role. If `discrepancies' did exist in the manner in which the overpayment had been calculated, it was the Board's duty to identify them and to rule accordingly. To suggest that the complainant should `discuss' them with the Commission, which had already ruled against him in the matter, was a clear abdication of the Board's responsibilities. It was also, it may be noted, at odds with the report of the Chairman's ruling, noted above, to the effect that the only question to be determined at the hearing was whether the amounts declared by the employer and the claimant were correct.

    The appeal is allowed. The decision of the Board of Referees is set aside and the matter is referred back for a new hearing and redetermination before a differently constituted Board of Referees. The decision of the Board of Referees dated October 7, 1999 shall be removed from the docket.

    "James K. Hugessen"


    Ottawa, Ontario
    May 24, 2000