CUB 57786

THE HONOURABLE Mr. JUSTICE W.J. HADDAD, Q.C., UMPIRE:

This appeal was filed by the claimant's employer and the employer was represented at the hearing by Mr. Bruce Fraser.

The claimant, a school teacher, was suspended by the employer, School District No. 38 (Richmond) from his teaching duties, without pay, from November 27, 2001 until March 31, 2002. The suspension was imposed after claimant's employer learned that the claimant booked off sick for two days, when in fact he was not sick, to travel with a college basketball team he had volunteered to coach. When confronted by the employer claimant admitted his deception. Following his suspension the claimant applied for unemployment benefits and the Employment Commission approved his application. The employer appealed the Commission's decision to the Board of Referees and the employer's representative, Mr. Wong, appeared before the Board to present its appeal. The Board by decision dated March 25, 2002, and sent to the employer on March 26, 2002, dismissed the appeal having concluded that the evidence failed to prove misconduct. Hence, this appeal to the Umpire.

At the opening of this appeal counsel for the Commission stated she had no objection to an order referring this matter back to a Board of Referees for a new hearing to permit the employer to introduce additional evidence. To justify that application reference was made to a statement made in a letter written by the employer's Superintendent of Schools to the President of the Richmond Teachers' Association on November 26, 2001, which contained this statement:

"The grounds giving rise to the suspension without pay are those contained in my report to the Board of November 20, 2001, and attachments to that report. A letter will shortly follow from me to Mr. Eberhardt formally describing the grounds for his suspension."

A letter did not "follow shortly". A letter was not sent to the claimant until March 28, 2002 (exhibits 13.2 - 13.5) - three days after the conclusion of the hearing conducted by the Board of Referees.

In view of Commission counsel's intervention I simply assumed that the Commission intended to contest, or otherwise participate in the appeal, but I later learned it was taking a neutral stand and that the claimant was in attendance to oppose the appeal. He should therefore, have been consulted with respect to the application.

As it transpired I refused the application to refer back for the simple reason that the material contained in the letter of March 28, 2002 consisted of new evidence available before the Board convened on March 25, 2002, and if the employer intended to provide additional evidence its representative to the Board of Referees could have applied to the Board for an adjournment for that purpose.

The submission made by the employer's representative in support of this appeal consisted, in the effect, of the presentation of the material in exhibits 13.2 - 13.5, composed of four pages of closely typed new evidence dealing with the merits. It was presented despite the fact that I announced early in the proceedings that the Federal Court of Appeal had determined that an Umpire is not entitled to receive new evidence and commits an error by considering new evidence going to the merits of the claim. I refer to Canada (AG) v. Taylor 81 D.L.R. (4^th) 679 and AG v. Hamilton A-620-94. The claimant's submission was brief. He simply pointed out that the new evidence submitted by the employer was available at all times before the parties appeared before the Board of Referees and he voiced objection to its reception at this stage of the proceedings.

The basis of the reasoning of the Court of Appeal in Canada (AG) v. Taylor with respect to new evidence is that proceedings before an Umpire is not de novo. The role of the Board of Referees is to receive and consider evidence both written and oral. The role of the Umpire is to determine whether the Board of Referees committed an error within the confines of the Employment Insurance Act, section 15(2).

For the foregoing reasons I refused to receive and consider new evidence.

I perceive the new evidence to have been prepared after the hearing before the Board of Referees to bolster the employer's determination that the claimant had been dismissed, or suspended, from his employment for misconduct to thereby, disqualify him from unemployment benefits after the Commission determined that taking two days sick leave, improperly, was not conduct of such significance as to amount to misconduct under the Act.

The decision reached by the Commission and the Board of Referees to determine misconduct, or the lack thereof, is a judgment call. I will not, therefore, interfere. The employer's grounds of appeal fall under the Employment Insurance Act, section 15(2) and it has not demonstrated error by the Board in law or in fact.

The appeal is dismissed.

"W.J. Haddad"

W.J. Haddad, Q.C. - Umpire

Dated at Edmonton, Alberta,
May 12, 2003.