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    IN THE MATTER of a claim for benefits by

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    IN THE MATTER of an appeal to an Umpire by the Employment Insurance Commission of Canada from the decision of a Board of Referees given on April 6, 2005 at Montreal, Quebec.


    The Honourable R.J. Marin

    [1] The Commission's appeal was heard in Montreal on July 25, 2006.

    [2] The Commission appealed from the decision of a Board of Referees, which rescinded the Commission's decision to the effect that the claimant was not unemployed but that he was self-employed as an administrator within the meaning of section 30 of the Regulations. The Commission also accused the claimant of making false or misleading statements.

    [3] I dismiss the Commission's appeal and uphold the Board of Referees' decision for a number of reasons. The Commission alleged that the Board of Referees did not address the criteria listed in section 30(3), or, if it did, that the decision rendered was erroneous in fact and in law.

    [4] The issue in this case is purely a question of fact. The Board of Referees set aside the statement found in Exhibit 9 of the appeal docket. The Board of Referees clearly stated that it gave no weight to the statement, that the claimant alleged that he would not have signed the statement had he been asked to, and that the statement was erroneous. Without the support of this evidence, the Board of Referees rescinded the Commission's decision. For the same reason, I have no authority to intervene. The officer did not claim to have shown or read the statement to the claimant.

    [5] The Board of Referees is the trier of fact. At its discretion and with supporting reasons, the Board of Referees can set aside a statement that seems unsound or incomplete. I refer to the Childs (A-418-97) case law, in which the Federal Court of Appeal clearly states in paragraph 17 that it is the role of the Board of Referees to determine what weight should be given to statements that seem to it to be intrinsically unreliable. In such a case, the statement must be set aside. If an officer prepares an unconfirmed and disjointed statement, the officer takes a chance that the Board of Referees will not give the statement any weight. That is what the Board of Referees did.

    [6] I defer to the decision of the trier of fact. It is the duty of the Commission and its employees to do their work diligently and openly.

    [7] The facts are established with respect to the merits of the appeal. The Commission did not submit a transcript. The decision of the Federal Court of appeal in Marchand (A-248-01) applies here. I must rely on the testimonial evidence and the decision of the Board of Referees, which reviewed all of the criteria in section 30(3) and found that the Commission did not establish that the claimant failed in his duty in this case.

    [8] For these reasons, I dismiss the Commission's appeal on the two issues.

    [9] The Commission's arguments, particularly those stated in Exhibit 24-3, cannot be applied in this case. This issue is clearly a question of fact, and the Board of Referees, the trier of fact, made a decision. It considered all of the evidence. The appeal cannot be allowed.

    R.J. MARIN


    OTTAWA, Ontario
    August 8, 2006