In the Matter of the Employment Insurance Act,
S.C. 1996, c. 23
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In the Matter of a claim for unemployment benefits by
Andrew Galbraith
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In the Matter of an Appeal by the Claimant
from the decision of a Board of Referees given
at Peterborough, Ontario on June 26, 2002
R. C. STEVENSON, UMPIRE:
Mr. Galbraith appeals from the decision of a Board of Referees dismissing his appeal from a ruling of the Commission that it could not pay him benefits as of May 15, 2002 because he did not attend an interview scheduled for that date. No oral hearing having been requested the appeal is to be decided on the basis of the documents filed.
Mr. Galbraith had established a claim for unemployment benefits on February 10, 2002. The record includes a copy of a letter from Human Resources Development Canada (HRDC) dated May 1, 2002 the second paragraph of which read:
In order to give our clients the highest quality service, we are holding information sessions. At those sessions we will talk about your rights and obligations under the Employment Insurance program. We will also ask you to provide additional information about your Employment Insurance claim (please see the attached questionnaire).
There is no copy of the questionnaire in the record. The letter directed Mr. Galbraith to attend an information session in Lindsay on May 15 from 9 am to 2 pm. It asked him to bring the letter and the completed questionnaire and two pieces of identification. It told him that if he did not come to the session, his Employment Insurance benefits could be stopped or refused.
Mr. Galbraith did not attend. An employee of HRDC attempted to contact him by telephone on May 16 and on May 21. Mr. Galbraith made a return call on May 22 and left a message. When the HRDC employee called back there was no answer.
On May 23 the Commission sent Mr. Galbraith the letter informing him of his disentitlement to benefits. On May 24 Mr. Galbraith wrote to HRDC saying he was contesting the decision as he had never been informed of any interview he was required to attend. On May 30 the HRDC employee again telephoned Mr. Galbraith's number and left a message asking him to call. Mr. Galbraith sent an undated letter that the Commission received June 6. He said he had not been able to make contact with the HRDC employee by telephone and asked:
Please either send me a date time and place to attend your "information session" and I will attend. Or else please process my appeal.
The Commission did not give Mr. Galbraith another appointment for an interview but scheduled the Board of Referees hearing for June 26. Mr. Galbraith did not attend before the Board and when the clerk attempted to reach him by telephone there was no answer.
In its decision the Board of Referees said:
On May 1, 2002, the Appellant was sent a notice to report for an information session on May 15, 2002 for the purpose of proving his entitlement to Employment Insurance.
The Appellant did not report and the Commission has been unable to contact him. The Commission concluded that the Appellant failed to provide information necessary for the determination of his entitlement to benefits by failing to report to the office as scheduled. The Commission therefore, imposed a disentitlement pursuant to subsection 50(6) of the Act.
. . .
It is the unanimous opinion of the Board of Referees that the Appellant is not entitled to receive benefits as he has not reported as directed to the Commission, pursuant to Section 48, 49 and 50 and the Employment Insurance Act.
The Board members find that the Appellant did not report as directed by the Commission and they had been unable to contact him.
. . .
In the opinion of the Board members all that is required to settle this matter is for the Appellant to contact H.R.D.C. as requested on several occasions.
There is nothing in the record to show that the Commission ever offered Mr. Galbraith a second chance to attend an information session.
Subsections 50(1), (5) and (6) of the Employment Insurance Act are as follows:
50. (1) A claimant who fails to fulfil or comply with a condition or requirement under this section is not entitled to receive benefits for as long as the condition or requirement is not fulfilled or complied with.
(5) The Commission may at any time require a claimant to provide additional information about their claim for benefits.
(6) The Commission may require a claimant or group or class of claimants to be at a suitable place at a suitable time in order to make a claim for benefits in person or provide additional information about a claim.
(Emphasis added)
Mr. Galbraith has consistently maintained that he did not receive the letter of May 1. It is impossible for the Commission to prove that he did receive it. While the Commission may be sceptical about Mr. Galbraith's denying receipt of the letter, when a claimant makes such a statement and his credibility is not called into question the Board of Referees should accept the statement.
It is clearly the intention of Parliament that a disentitlement under section 50 is not to remain in effect indefinitely but only until the claimant fulfils or complies with a particular condition or requirement. When a claimant says he did not receive a request for additional information or to attend an information session it is not to much to expect the Commission to repeat the request and, if it is for attendance at an interview, to give the claimant a new time at which to attend.
In CUB 43843A I said:
In the face of Ms. Herrera's denial of receipt of the notice and in the absence of any finding of credibility adverse to Ms. Herrera the Board erred in law in effectively giving effect to the presumption of delivery by post. The finding of fact was also made without regard to the material before the Board
That decision was the subject of a judicial review by the Federal Court of Appeal. Canada (Attorney General) v. Herrera, File A-397-99. The court said:
We are of the view that the Umpire was correct to conclude that the board of referees' finding that, on the balance of probabilities, the respondent received the notice of the information session that the Commission had scheduled her to attend on July 15, 1997, was made without regard to the material before it.
The Commission produced no evidence that it had mailed the notice and the board made no adverse finding of credibility against the respondent, who had maintained throughout that she had not received this or an earlier notice from the Commission mailed to her at the same address. Although she testified to having experienced difficulty in receiving mail at this address, she also admitted that she had received other communications from the Commission at this address.
The Commission only produced a copy of the notice, and an internal fax showing that the respondent, along with others, had been scheduled to attend the information session on July 15, 1997...
It is incumbent on the Commission to prove that a claimant has been directed to attend an interview and, in our view, there was no evidence on which the board could conclude that the Commission had discharged this onus and that the respondent was therefore disqualified from the receipt of benefits.
In the present case the Board of Referees erred in law and based its decision on an erroneous finding of fact that it made without regard to the material before it, i.e. Mr. Galbraith's uncontradicted statement that he did not receive the letter.
The appeal is allowed and the disentitlement is set aside. If Mr. Galbraith has not exhausted his benefits and is still unemployed the Commission should set a date for another information session.
RONALD C. STEVENSON
Umpire
FREDERICTON, NEW BRUNSWICK
December 6, 2002