TRANSLATION
IN THE MATTER of the EMPLOYMENT INSURANCE ACT
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IN THE MATTER of a claim for benefits by
LUC LAMPRON
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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 on November 30, 2004 at Shawinigan, Quebec.
DECISION
R.J. Marin, Umpire
[1] This appeal was heard in Trois-Rivières on September 27, 2005.
[2] Counsel for the claimant appealed from a Board of Referees' decision regarding the amount of the penalty. In his notice of appeal, counsel maintained that the Board, after noting his client's financial situation, did not take into account the re-evaluation of the amount of the penalty. He claims that the Board's decision contains an error of law.
[3] He also claims that the decision does not meet the requirements of section 114(3) of the Act, since it does not explain why the Board failed to take into account the financial situation of his client, Mr. Lampron, or give reasons to support its decision. Counsel for the claimant in particular argues against the case law established in the Federal Court of Appeal decision in Carle (A-315-02).
[4] To recount the facts briefly, the claimant and other workers participated in a system whereby hours were banked. Counsel claims that the employer imposed the system on the employees and that the appellants were simply victims of the scheme. Whatever the case may be, in this case, a penalty was imposed on the claimant, and the Board revised the penalty. I quote the Board of Referees' comments from Exhibits 50.2 and 50.3:
First instance: The four attending claimants, who were called to testify, were unanimous on the fact that it was the employer which implemented the practice of banking hours and that those who did not want to participate were not hired.
Second instance: Mitigating circumstances. The evidence shows that the penalty imposed on the claimants varied from 67 to 305% of the overpayment (Exhibit B).
In addition, although the members of the Board of Referees find that the penalty should be equal to 18% of the overpayment, and after considering the claimant's very precarious financial situation referred to in exhibits 45, 46 and 47, as well as the claimant's testimony that he has a $62,000 debt and a yearly income of $17,000, the members unanimously recommend that the Commission write off the overpayment and the penalty.
Conclusion
After analyzing all of the evidence and relevant case law, the members of the Board unanimously find that the penalty should be equal to 18% of the overpayment.
FIRST ISSUE: APPEAL ALLOWED IN PART
SECOND ISSUE: APPEAL ALLOWED IN PART
THIRD ISSUE: APPEAL ALLOWED IN PART
[5] In the end, at issue is whether the Board exercised its discretion properly in the instant case when it ruled on the penalty.
[6] I am of the opinion that this matter must be referred to a new Board. I would like to point out that the Board's decision with regard to the penalty is brief and does not contain reasons to support it. It is possible that the Board exercised its discretion properly in the instant case, but there are no reasons to support its decision. It is impossible for me to support the Board's decision.
[7] For these reasons, in light of the particular circumstances in the instant case, this matter shall be referred to a new Board regarding the amount of the penalty. The appeal is allowed, thereby giving the claimant an opportunity to make his arguments. The newly constituted Board is required to record the reasons for its findings in a more detailed fashion. The erroneous decision shall be removed from the appeal docket.
R.J. MARIN
UMPIRE
OTTAWA, Ontario
October 28, 2005