CUB 48994
TRANSLATION
IN THE MATTER OF THE EMPLOYMENT INSURANCE ACT
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IN THE MATTER of a claim for benefits by
REYNAUD LAROCQUE
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IN THE MATTER of an appeal to an Umpire by the
claimant from a decision by the Board of Referees given
on June 22, 1999 in Bathurst, New Brunswick
GOBEIL, UMPIRE
In this matter the claimant-appellant is appealing a decision of a Board of Referees which had upheld a decision by the Commission dealing with:
The decision of the Board of Referees does not meet the requirements of subsection 114(3) of the Employment Insurance Act. It is difficult if not impossible to find clearly expressed or presented the Board's conclusions on questions of fact that its members considered essential to support their decision.
The difficulty stems in part from the expressions used by the members of the Board as headings for each part of their decision:
"STATEMENT OF FACTS"; "CONCLUSION"; "DECISION".
It is hard to determine for instance if the "Statement of Facts" refers to the facts they have accepted from the evidence and on which they based their decision or rather if it means facts as presented by the Commission.
There is also ambiguity in the section headed "Conclusion" where the Board members state, "Based on the facts in the case, we agree with the Commission on the three following disputed points.." [trans.]
Are the "facts in the case" those that the Commission considered as a basis for a decision with which the Board agrees or facts that the Board of Referees accepted after having objectively and independently weighed and assessed the evidence?
Finally, although the Board of Referees decided on an appeal by a claimant against one or many decisions by the Commission, it is inappropriate, as done in the case at bar, to state that "the members of the Board of Referees unanimously support the Commission's decisions" [trans.] (my emphasis).
The point is not to support a decision by the Commission which had been appealed to the Board of Referees. The appeal is to be upheld or dismissed, with the result that the appealed decision by the Commission is allowed or quashed.
There is relatively abundant jurisprudence on the requirements of subsection 114(3) of the Employment Insurance Act (formerly subsection 79(2) of the Unemployment Insurance Act).
For the case at bar, the Tremblay (CUB 10945), Conchatre (CUB 10396A) and Dugan (CUB 14987) cases show that it is not enough to sum up the decisions of the Commission and to conclude "after having examined the matter" that the Commission's decisions seem well founded.
In the Marshall case (CUB 10320), Judge Reed states that a Board of Referees does not meet the requirements of 79(2), now 114(3) by stating that it examined all the information in the case and that it agrees with the Commission's decision.
In this case, the members of the Board of Referees "unanimously support the Commission's decisions" without our knowing on which facts they based themselves and this is certainly unacceptable. Because they did not indicate briefly but clearly the essential facts which form the basis of their decision, that decision does not meet the requirements of subsection 114(3) of the Act and this constitutes an error in law.
According to that subsection, the decision of the Board of Referees must include a statement of the facts (Ayotte, CUB 8200) (Mulligan, CUB 19228) (Nadon, CUB 19156). The jurisprudence is consistent in this area.
For all these reasons, I am returning the file to a newly constituted Board of Referees in order that its members hold a new hearing and make a decision pursuant to the requirements of subsection 114(3) of the Employment Insurance Act.
Albert Gobeil
UMPIRE
BERESFORD, New Brunswick
June 16, 2000