CUB 71975

GUY GOULARD, Umpire

The claimant worked for an employer until December 18, 2006. She filed an Employment Insurance benefit claim, which was established from December 24, 2006. The Commission determined that the claimant was entitled to sickness benefits. However, the Commission determined that the claimant lost her employment because of misconduct. Consequently, the Commission imposed an indefinite disqualification effective when the sickness benefits ended.

The claimant appealed from the Commission's decision to a Board of Referees, and the Board dismissed the appeal in a majority decision. She appealed from the Board's decision to an Umpire. That appeal was heard at Quebec City, Quebec, on February 17, 2009. The claimant was not present but was represented by counsel.

After hearing representations from the claimant and the Commission, I find that this matter must be referred back to a new Board of Referees for rehearing. That decision is based on the fact that the majority members of the Board failed to explain why they rejected the claimant's testimony; from her first contact with the Commission and throughout her appeal to the Board of Referees, she denied the employer's allegations about her. I point out, in particular, Exhibit 4, in which the claimant summarizes the facts surrounding the employer's allegations about her and her responses and arguments.

The majority of the Board preferred to accept the evidence from the Commission, based exclusively on the letter of dismissal in Exhibit 6. As the minority member of the Board pointed out, the employer's allegations were based on double hearsay; the source was two new trainees who, according to the claimant, had an interest in seeing her lose her job. Moreover, the majority of the Board could not ignore the fact that the claimant had worked for approximately ten years for her employer without incident or reproach.

The employer indicated that he conducted an investigation as a result of the complaints from the trainees. No evidence was provided about the nature and results of the investigation or from other employees or residents with whom the claimant worked. The majority decision of the Board emphasized the argument of counsel for the claimant that the doctrine always gives precedence to direct testimony over evidence based on hearsay or the uncorroborated statements of a Commission agent. The majority members nevertheless dismissed the claimant's testimony without explaining why they did so. They could dismiss that testimony but had to explain why.

Section 114(3) of the Employment Insurance Act requires the Board of Referees to explain why the evidence submitted by one or the other of the parties to the dispute was dismissed. The section 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 in Parks (A-321-97), Strayer J. states :

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 McDonald (A-297-97), Linden J. states :

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.

In this case, the majority decision of the Board of Referees does not meet the requirements of section 114(3) of the Act. The majority of the Board thus erred in law in its decision, which must be rescinded.

Since the determination of the issue under appeal, that is, whether the claimant lost her employment because of misconduct, in large part involves a finding of fact and, in matters of appeal under the Employment Insurance Act, findings of fact are the responsibility of the Board of Referees, this matter must be referred back to a new Board.

The Board of Referees' decision is rescinded. The matter shall be referred back to a differently constituted Board for rehearing. The Board's decision dated May 25, 2007, shall be removed from the appeal docket.

Guy Goulard

UMPIRE

OTTAWA, Ontario
March 12, 2009