TRANSLATION
IN THE MATTER of the EMPLOYMENT INSURANCE ACT
and
IN THE MATTER of a claim for benefit by
Sonnine NAZAIRE
and
IN THE MATTER of an appeal to an Umpire by the claimant from the decision of a Board of Referees given on November 6, 2001, at Montreal, Quebec
DECISION
GUY GOULARD, Umpire
The claimant is appealing the decision of the Board of Referees that had disallowed her appeal from the Commission's decision refusing to extend the 30-day deadline provided for filing a notice of appeal.
This appeal was heard at Montreal, Quebec, on February 27, 2003. The claimant was present and the Commission was represented by Sébastien Gagné.
The facts in this docket are summarized as follows. The claimant established a benefit period starting November 17, 1996. On October 14, 1998, the claimant received decisions from the Commission regarding unreported earnings, the imposition of a penalty and a notice of violation. On September 10, 2001, she sent a letter announcing her intention to appeal the decisions received on October 14, 1998.
The claimant explained that she thought the appeal she had lodged in 1998 on another decision by the Commission would also cover the decisions of October 14, 1998. The Commission had found that the reasons the claimant provided to justify her delay did not constitute special reasons as listed in subsection 114(1) of the Employment Insurance Act since it had never been stipulated that the decisions of October 1998 formed part of the appeal on the decisions given in May 1998.
The claimant said she had not appeared before the Board of Referees because she had received no notice.
In a letter of September 4, 2001 to the Commission, the claimant's lawyer indicated that he was representing the claimant and explained why his client was late in lodging her appeal.
In its decision, the Board of Referees, without reasons, rejected the explanation provided by the claimant's lawyer and favoured the Commission's position.
Subsection 114(3) of the Employment Insurance Act requires the Board of Referees to explain why it rejects evidence submitted by one or the other party to the dispute. This subsection reads as follows:
114(3) A decision of a board of referees shall be recorded in writing and shall include a statement of the findings of the board on questions of fact material to the decision.
In the decision of the Federal Court of Appeal in Parks (A-321-97), Judge Strayer wrote:
"We are all in agreement that the Board erred in law in failing to comply adequately with subsection 79(2). Specifically we are of the view that it was incumbent on the Board to state, at least briefly, that it rejected critical parts of the evidence of the applicant on grounds of credibility, and why it did so. In this case there was before the Board much written material from the employer of a hearsay nature. The affidavit evidence and oral statements of the claimant before the Board conflicted in various respects with this material. The Board simply states its conclusions without explaining why it preferred one version of events to the other.
While we do not interpret subsection 79(2) to require a detailed statement of findings of fact, we are of the view that the Board of Referees, to comply with that subsection, must when there is an issue of credibility state at least briefly, as part of its 'findings ... on questions of fact material to the decision,' that it rejects certain evidence on this basis and why. When it fails to do so it errs in law."
In the decision in McDonald (A-297-97), Judge Linden wrote:
"It is imperative for Boards of Referees to address the issues actually presented to them carefully and to explain their findings in coherent and consistent reasoning. Anything less is unacceptable."
The Board of Referees' decision fails to meet the requirements of subsection 114(3) of the Act. The Board had a duty to explain why the claimant's explanations were rejected.
In my view, the claimant's explanations are well founded. It is highly possible that the claimant believed her appeal covered the decision of October 1998. It is therefore my opinion that these reasons are special reasons within the meaning of subsection 114(1) of the Act.
The claimant's appeal on the extension of the deadline is therefore allowed and the Board of Referees' decision is rescinded.
GUY GOULARD
UMPIRE
OTTAWA, Ontario
March 7, 2003