CUB 66501

PAUL ROULEAU, Chief Umpire Designate

This is an appeal by the claimant from a decision of the Board of Referees which upheld the Commission's conclusion that the claimant had failed to provide medical proof of his incapacity to work pursuant to section 18(b) and 50 of the Act. The Board also concluded that the claimant has failed to prove his availability pursuant to section 18 of the Act, and that he knowingly made twenty-one (21) false representations to the Commission resulting in an overpayment of $10,997.00. The Commission issued a Notice of Violation, pursuant to section 7.1 of the Act and imposed a penalty of $154.00 on the claimant for a falsification in his application pursuant to section 38 of the Act. An oral hearing has not been requested and, accordingly, the appeal will be disposed of on the basis of the record.

A claim for benefits was established effective August 29, 2004. On his application for benefits, the claimant reported that he lost his employment due to a shortage of work. He indicated that he was seeking work as a cook and that he was ready, willing and able to work. He collected thirty-six weeks of benefits, ending May 21, 2005. On May 27, 2005, he then applied for medical benefits, claiming that he had impingement to his nerve roots. He claimed that he had been unable to work since September 2004. He produced a medical note that stated that he may not be able to work part-time or full-time as a chef. The Commission reviewed the claimant's application for medical benefits and found that the claimant had not proven that he was incapable of work pursuant to section 18(b) of the Act. The Commission found that the medical note stated that the claimant may not have been able to work as a chef, and not that he was unable to work in any other suitable position.

After his claim for medical benefits was denied, his claim for regular benefits was reviewed, as he had stated he had been unable to work since September 1, 2004. The claimant attended an interview on August 9, 2005, and indicated that he did not know he had to declare his back problems when he applied for regular benefits; that, since filing his claim for benefits, he has been looking for light work (a job where he can sit down). He alleged that he had called numbers in the newspaper and applied for work, but did not have the names of the companies to whom he had applied. The interview also revealed that the claimant could not work at any job where he would be required to sit or stand for long periods of time, or at any job that required heavy lifting. The claimant also brought a second medical certificate to the interview which stated that he would be unable to work until after surgery and rehabilitation. However, the claimant stated that he did not want the surgery.

The employer, Hai Yonge Enterprises, confirmed that the claimant was terminated because his back prevented him from performing the job of chef. The employer wrote that there was no shortage of work.

A third medical certificate was received on August 11, 2005, stating that the claimant was able to do light work after September 1, 2004, but was unable to work as a chef. The Commission reviewed the claimant's application for medical benefits and determined that he still had not proven that he was incapable of working at suitable employment, pursuant to subsection 18(b) of the Act. The Commission also determined that the claimant was not entitled to regular benefits, as of August 30, 2004, because he was unable to work as a chef but had indicated that he was only seeking work as a chef on his initial claim. The Commission also concluded that the claimant was unable to prove that he had applied for work since the beginning of his claim.

The Commission imposed a retroactive disentitlement, effective August 31, 2004, which resulted in an overpayment of $10,997.00. The Commission found that the claimant had knowingly made a false statement when he stated on his application that he had stopped working due to a shortage of work. The Commission also found that the claimant made a false statement on the application when he stated that he was ready and willing to work as a cook. The Commission issued a notice of violation, pursuant to section 7.1 of the Act and imposed a penalty of $154.00 for the false statement made on the application.

The claimant appealed the Commission's findings to the Board of Referees arguing that, while doctors had recommended that he should no longer work as a cook, he still wished to work as a cook and sought jobs at restaurants. The claimant's representative also pointed out that the claimant's Record of Employment (ROE) indicated that he was let go due to shortage of work and not terminated. The claimant's representative also argued that the claimant had been looking for kitchen jobs that involved ingredient and food preparation. Mr. Wong also submitted a job search before the Board, both in Chinese, and translated into English, which indicated that he had performed an extensive job search while he was receiving benefits. The claimant was not contesting the medical disentitlement at the hearing before the Board, but only the disentitlement to regular benefits that resulted in the overpayment. The Board considered the submissions of the claimant, and of the Commission, and dismissed the claimant's appeal with respect to availability. However, the Board allowed the claimant's appeal with respect to the penalty and the Notice of Violation. On the issue of availability, the Board found as follows:

The Board finds that, while the claimant may have had some medical restrictions on his ability to work, he is capable of performing light duties and is capable of work.

The real issue that the Board has to deal with is whether the claimant has made efforts to find employment that are sufficient to satisfy the legislated requirements and which would help to establish that he was available within the meaning of the Act.

The Board in making its decision reviewed the applicable jurisprudence, particularly the decision of Cornelissen-O'Neill (A-652-93), a decision of the Federal Court of Appeal in which case the Court held that the burden on the claimant to prove availability is a statutory requirement of the legislation that cannot be ignored; in order to obtain employment insurance benefits a claimant must be actively seeking suitable employment, even if it appears reasonable for the claimant not to do so.
[...]

The Board finds that the claimant has not proved that he was carrying out an active job search.

The Board finds that the evidence of the claimant with respect to his job search was not credible. Initially the claimant told the Commission that he had not kept track of where he was applying and that he had looked in various Chinese language newspapers for work. He did not even keep the clippings from the newspapers. He said that he did not know that he had to keep a list. The claimant could not even recall with whom he had looked for work the week of the interview.

The claimant also said that he had looked for work doing light duties such as collecting tickets in a parking lot.

At the hearing however, the claimant produced a lengthy hand written list of job search contacts. The list was in pristine condition and appeared to have been written all at the same time with one pen. It did not look like a list which was written over the course of a year although the claimant said that it had been. In addition, the businesses were all restaurants and did not include any mention of looking for jobs as a parking lot attendant.

At the hearing, the claimant said that he was well aware of the need to keep a record of his job search from his experience with previous claims. This is in direct conflict with the information that he gave to the Commission in his interview.

While the claimant submitted that there were language difficulties in the exchange with the Commission investigator, the Board does not accept that there were any misunderstandings. The claimant's son lives at home with the claimant and is able to communicate with his father. In addition, the claimant's son is clearly proficient in English which is shown by the fact that the claimant's son was the one who helped with the necessary applications and other forms.

Since the claimant has not satisfied the onus that is on him to establish that he has conducted an active job search, he has not proved his availability and the Board finds as fact that he was not available for work within the meaning of the Act.

The claimant is now appealing the Board's decision to an Umpire on the issue of availability. The claimant submits his appeal under paragraph 115(2)(c) of the Act, alleging that the Board based its decision on an erroneous finding of fact made in a perverse and capricious manner, or without due regard to the material before it. The claimant submits that the job search record was a reproduction of the job search record that existed on a calendar at the claimant's home, which explains the pristine condition of the list, and the reason why the list was written in one pen. The claimant went to a HRSDC office in September 2004 and asked for a form on which he could record his job search record. He submits he was told that no such form is required and therefore he could keep the record in any manner that he wished. The claimant includes photocopies of the calendars on which he recorded his job searches with his submissions to the Umpire. The claimant also submits that the reason why the parking lot attendant job fails to appear on the job search list was because the claimant merely inquired about who to contact about a job as he was passing by a parking lot one afternoon. When he was told that the attendant was not sure who to contact, the claimant did not pursue further enquiries. As such, he did not actually apply for a job at the parking lot.

Concerning the contradictions identified by the Board, between the claimant's interview and his testimony and submissions at the hearing, the claimant submits that the answers recorded at the interview are not the answers he gave. He submits that there may have been a translation error, or an error in recording the answers. He submits that he has always known about the need to keep a job search record, since he is familiar with the EI system having received benefits on previous occasions. The claimant reiterates that his son's skills in Cantonese are very poor, despite the fact that his son is fluent in English. The claimant further submits that translation is difficult, even for a person who is fluent in both Cantonese and English. The claimant submits that CUB 18126 applies in the present circumstances. In CUB 18126, my colleague Justice Strayer found as follows:

While as a general practice it is no doubt wise to view with scepticism statements made on behalf of a claimant after he or she has become aware of disentitlement, where those statements conflict with statements made before disentitlement, it is not proper to adopt this approach without regard to the particular circumstances of the case. Here the Board seems to have ignored the language problems of the claimant and the cultural differences which had a bearing on the situation in basing their conclusion wholly on her earlier statements.

I have reviewed the Board's decision as well as the contents of the appeal docket and I am of the opinion that the Board's decision is unreasonable. The Board based its finding on an erroneous finding of fact, in determining that the job search list was not credible. The Board did not ask the claimant if the list was original, or if he had kept track of his job search elsewhere, but rather concluded that the list before the Board was made up by the claimant at the last minute. I conclude that the Board based its conclusion on an erroneous finding of fact in summarily dismissing the job search list and placed too high an onus on the claimant. There are no criteria in the legislation with respect to the format of a job search. The Board was wrong to impose one in the present case.

With respect to the contradictions between the claimant's interview and his testimony at the hearing, I am of the opinion that Justice Strayer's conclusions in CUB 18126 do apply directly to the present matter. The Board failed to examine the language abilities of the claimant's son in Cantonese - the Board did not find that the claimant's sixteen-year-old son was fully fluent in Cantonese, but merely that he could communicate with his father at home. I am of the opinion that the Board ignored the language problems of the claimant, and relied heavily on a translation given by a sixteen-year-old with limited knowledge in Cantonese. As Justice Strayer stated in CUB 18126, "Here the Board seems to have ignored the language problems of the claimant and the cultural differences which had a bearing on the situation in basing their conclusion wholly on [his] earlier statements".

In the present case, the Board's decision is tainted by its reliance on a translation that may be tainted with inaccuracies, rendering the decision unreasonable. Given that the Board came to an unreasonable decision, the claimant's appeal must be allowed under paragraph 115(2)(c) of the Act.

For the above reasons, the appeal is allowed.

Paul Rouleau

UMPIRE

OTTAWA, Ontario
August 4, 2006