CUB 73661

The Honourable R.J. Marin

This Commission appeal was heard in Barrie on November 9, 2009.

At issue are an allocation of undeclared earnings, whether the claimant made false or misleading statements for which a penalty was imposed and a violation noted.

Pivotal to my decision is the issue of allocation of earnings since, if it is not established, the other rulings of the Commission would be moot.

There is evidence on the file of appeal, beginning at Exhibit 4-1, the claimant was employed and remunerated between May 28, 2006 and June 25, 2006. This period is found in a declaration by the employer to Human Resources Canada. This declaration is required by HRDC and, therefore, compelled by statute. Penalties can be incurred for providing improper or incorrect information. It must be given proper weight by a trier of fact.

I find the Board did not give it proper weight, nor did it try to place it in context of the facts.

I also allude to Exhibit 4-2, a handwritten note of explanation by the claimant to the effect she was banking her hours at her place of employment. There is a suggestion she was sick, then returned to work and paid without necessarily having to work. This statement is also not placed in context. Regrettably, the Board ought to have addressed it since it is inconsistent with the evidence offered at the hearing.

There is other evidence of consequence, namely, Exhibit 4-6, which is a pay period covering June 10 to 16, 2006 for the claimant. It includes the period under review where it appears she worked and was remunerated.

There is also Exhibit 9-1 which lends support to the ruling of the Commission, namely, the claimant was employed during the timeframe the Commission suggests. Exhibit 9-1 is obtained from the employer by a Commission employee; it states "she (claimant) worked Tuesday, Wednesday, Thursday and Friday for a total of 32 hours and her gross pay was $432.00". The claimant returned to work on May 30, 2006. A record is provided with respect to payment for that period.

This is the evidence the Board had to consider along with the well-reasoned argument of counsel for the claimant. With the greatest of respect, I suggest, the Board was distracted from its ultimate goal. The claimant gave evidence there was no return until a later date. The Board found her credible and, accordingly, allowed the appeal.

I strongly believe the Board erred in law when it did so; it neglected to apply the well-established case law evolving from El Maki (A-737-97) to the effect the Board cannot ignore documentary evidence unless it explains why it is excluding such evidence. The Board did, but never gave an explanation; it erred in law in not doing so.

I have to regrettably come to the conclusion that the Board erred in law. There was indeed remuneration, it was properly allocated as earnings and, to my mind, the Board came to the wrong decision for the wrong reasons.

In the application of the powers vested in me under s. 117 of the Act, I will render the decision the Board ought to have given, namely, confirm the allocation by the Commission. The claimant failed to declare earnings as she ought to have done in Exhibit 13; there was a false or misleading statement. I find the Commission applied its discretion in a judicial manner in imposing the penalty, and find the violation was justified.

Claimant's counsel attaches a great deal of importance to the failure of the employer to be present at the hearing. It is not common practice to do so. The law provides that hearsay evidence is admissible, and the Board cannot be faulted for not having required evidence from the employer in the circumstances.

In the end, I allow the appeal, quash the Board's decision and confirm the initial rulings of the Commission in this matter.

R.J. MARIN

UMPIRE

OTTAWA, Ontario
November 30, 2009