CUB 73884

M. E. LAGACÉ, Umpire

The claimant filed an appeal from the unanimous decision of the Board of Referees confirming the Commission's decisions to reconsider, under section 52(5) of the Employment Insurance Act (the Act), the claimant's benefit claims after the 36-month time limit, resulting in a disentitlement from benefits in accordance with sections 9 and 11 of the Act, because he did not show that he was unemployed during the period at issue, alleging that he made representations he knew were false, and, finally, issuing him a notice of violation under section 7.1 of the Act.

In a well-supported decision, the Board of Referees repeated all the facts presented in evidence and thoroughly summarized the testimony heard from the claimant.

It would be superfluous and unnecessary to reiterate all the facts for the purposes of this decision. On the contrary, it suffices to note that, when he filed his Employment Insurance benefit c laim, the claimant attached to his claim a Record of Employment indicating that he worked during the period under appeal as an in-ground swimming pool installer for employer X, until the company involved had a shortage of work. That is when the claimant decided to claim Employment Insurance benefits.

The Commission investigation showed that he had never really been unemployed, within the meaning of the Act, which the claimant was not able to contradict, because he continued to provide services to his spouse's company, his employer, during her company's slow periods, for a minimum of 40 hours a week.

However, at the time he submitted reports, he reported not working but remaining available for work, knowing that he was working full time for his spouse's business. Although he stated that, to him, working for his spouse was not really a job, he nevertheless stated that he was not interested in working other than in his spouse's business.

Given the new facts, the Commission decided, in accordance with section 52 of the Act, to conduct a review of the benefit periods established for the claimant, finding that he had made false or misleading representations about his benefit claim. After exercising its authority to reconsider a claim within the time period set by the Act, the Commission decided that the claimant was not unemployed because he was actively involved in the operation of his spouse's business. Consequently, the Commission imposed a disentitlement for the period involved, as well as claiming recovery of the overpayment, imposing a non-monetary penalty on him, and issuing him a formal notice of violation.

Dissatisfied with that decision, the claimant decided to file an appeal to the Board of Referees on the grounds that the Commission's decisions were erroneous in fact and in law.

The claimant was present for the appeal before the undersigned Umpire and represented himself; he does not understand why his appeals, heard three times by differently constituted Boards of Referees, were again referred by an Umpire, on April 28, 2008, to a fourth differently constituted Board of Referees.

The undersigned understands why the claimant does not understand, especially since, according to the claimant's contention, he allegedly had favourable decisions three times on appeals to the Board of Referees. Unfortunately for the claimant, the previous decisions he is citing were rescinded as a result of errors of law and removed from the docket; they are no longer part of the record, so the undersigned does not know the content of those decisions, which have no relevance for the purposes of the appeals before the undersigned. Moreover, the undersigned explained to the claimant why he could not consider those decisions; in any case, he does not know either the content or the grounds, except as reported by the claimant.

The unfavourable decision the claimant was given by the Board of Referees on July 15, 2008, is the only decision subject to appeals to the undersigned. It is therefore necessary to confirm whether, in light of the arguments from the claimant and the Commission's representative, that decision is well founded because it is reasonably supported by the facts presented in evidence by both the claimant and the Commission and the law related to those facts.

Although informed of the burden incumbent on him, the claimant limited his representations to references to the previous decisions that were allegedly in his favour from three differently constituted Boards of Referees, decisions that have no relevance in this appeal because they are no longer part of the record and the undersigned does not know their content.

With respect to the errors alleged to have been made by the Board of Referees who gave the decision subject to this appeal, despite the advice from the undersigned, the claimant limited himself to reiterating certain facts already considered by the Board of Referees in the decision dated July 15, 2008. The Board did not accept the facts as stated by the claimant, preferring the claimant's initial versions. That is far from an error; on the contrary, the right to accept the evidence that appears most reliable from among the evidence presented, taking into consideration the credibility of the witnesses, is part of the decision-making process of any tribunal, and it is up to the tribunal involved to fairly assess its merits. In this case, it was up to the Board of Referees to accept the version it believed it should accept, which is what it did, neither more nor less.

It is not up to the undersigned to reassess the evidence and say whether, in light of that evidence, he would make the same decision as the Board. The role of the undersigned is to confirm whether the decision of the Board of Referees appears reasonable, because it is supported both by the facts presented in evidence and by the law. In this case, I cannot find that there is insufficient reason for the decision under appeal, and the fact that the Board did not accept the claimant's explanations does not mean that its decision is thereby in error. The claimant has to accept that deciding is first and foremost choosing between evidence that is valid and evidence that does not appear to be valid, in compliance with the applicable law.

The undersigned is obliged to find that the Board of Referees, in fact, appears to have fairly considered the merits of all the facts presented in evidence by the parties before finding as it did. The fact that its decision is unfavourable to the claimant is no reason to allow the appeal when the claimant has not shown any unreasonable error to justify the intervention of the undersigned Umpire. Not only are the previous decisions from the three differently constituted Boards of Referees cited by the claimant at the hearing of his appeal before the undersigned irrelevant, but all the undersigned knows about them is that they have been rescinded. Therefore those decisions cannot help the claimant or influence the decision of the undersigned, although regrettably the decisions from the different Boards may have fuelled a spark of hope for the claimant three times when, in the end, the decision is not in his favour.

FOR THOSE REASONS, I dismiss the claimant's appeal in this case (X) and confirm the decision of the Board of Referees in the docket on all the points under appeal.

M. E. Lagacé

UMPIRE

Montreal, Quebec
January 15, 2010