CUB 52093

- and -
In the Matter of an Appeal by the Claimant from the decision of a
Board of Referees given at North York, Ontario on October 18, 2000

DECISION

Mr. Chan appeals from the decision of a Board of Referees dismissing his appeal from (1) a Commission ruling that he was not entitled to benefits as of February 5, 1996 because he had not proved his availability for work and (2) the imposition of a penalty for making 19 false or misleading statements.

Initially there was a third ruling, i.e. that Mr. Chan was not entitled to benefits as of May 15, 1996 because he was self-employed. Mr. Chan no longer takes issue with that ruling.

The Commission imposed a penalty of $7 505.00 because Mr. Chan had answered "No" to the questions "Did you work during the period of this report?" and "Were you ready, willing and capable of working each day?" on 19 bi-weekly reporting cards. Mr. Chan is Burmese and is not fluent in English. He required language assistance at the Board hearing. The Board of Referees said:

The Board does agree there may have been a major language problem with the claimant understanding his rights and what he should have been entering on his weekly report cards at that time.

The Board has decided to allow the claimant the benefit of the doubt and reduce the penalty portion to $3 750.00. The claimant does have a certain responsibility and must be made to understand that he does have an obligation to seek proper help if there is any doubt on his part understanding the Employment Insurance Act and its Regulations.

The Board's finding was in essence a finding that Mr. Chan did not know his statements were false or misleading. Therefore the Board, rather than reducing the penalty, should have allowed the appeal on that issue. It is now allowed and the penalty is set aside.

Mr. Chan was not entitled to benefits for any day in his benefit period for which he failed to prove that he was capable of and available for work and unable to obtain suitable employment.

When the Commission investigated Mr. Chan's self-employment in October 1996 a Commission agent interviewed him. The report of the interview contains these statements: "Claimant started to plan for this business in March `96." and "Claimant stated he had not been looking for work since he file (sic) for U.I. claim."

The Commission did not ask Mr. Chan for proof of any job search. His counsel submitted to the Board of Referees and to me a list of several job contacts including seven in February, seven in March and six in April. There was only one in May but there were several in June, July and August even after he had opened his business. The Board of Referees did not refer to that evidence but merely made a finding that "The claimant has not shown or demonstrated that he was ready, willing and seeking employment while on benefits during this period." The Board erred in making that finding which it made without regard for the material before it.

Rather than send the matter back for re-hearing by a third Board of Referees I will give the decision the Board should have given. Mr. Chan has proved his availability for work during February, March and April.

On this issue, the appeal is allowed and the disentitlement is removed for the period from February 5 to April 30, 1996.