IN THE MATTER of the EMPLOYMENT INSURANCE ACT
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IN THE MATTER of a claim for benefits by
TERRY WULFF
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IN THE MATTER of an appeal to an Umpire by the
Claimant from the decision of a Board of Referees given at
Saskatoon, Saskatchewan on November 15, 2001.
The Honourable R.E. Salhany, Q.C.
This appeal was heard at Saskatoon, Saskatchewan on Thursday, November 28, 2002. At issue on this appeal is whether the Appellant lost his employment by reason of his own misconduct.
In dismissing the appeal the Board of Referees stated,
"In the opinion of the Board of Referees, the appellant's responses to the question pertaining to the loan lacked credibility"
However, what the Board failed to do was to state what the questions were, what the answers were and why they lacked credibility.
The critical issue in this case was one of credibility. This imposed an obligation upon the Board to outline those issues that were disputed and to give reasons why the Board preferred the evidence presented by the employer over that of the claimant. There are a number of reasons why that was required to be done.
First of all, litigants are entitled to know why their evidence or some of their evidence is rejected by a tribunal. Statements by a tribunal such as "we reject the evidence of X" or "we do not accept the evidence of X", without reasons why the evidence has been rejected, are arbitrary. A litigant whose testimony is rejected without reasons loses respect for the judicial system. Secondly, reasons why testimony is rejected will force the trier or triers (in this case) to focus on the evidence and ensure that all of the evidence has been carefully considered. Finally, but of no less importance, is the fact that in the absence of reasons, an appellate tribunal is unable to determine whether the tribunal made an appropriate assessment of credibility. In such instance, the appellate tribunal is forced to send the matter back for a rehearing.
Unfortunately, this matter has to be sent back to a Board of Referees differently constituted to hear the evidence again and to make findings of fact on the critical issues in this case, namely, whether or not the Appellant lost his employment as a result of his own misconduct.
The appeal is allowed.
Dated this 10th day of December, 2002.
R.E. Salhany
Umpire
2011-01-10