TRANSLATION
IN THE MATTER of the EMPLOYMENT INSURANCE ACT
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IN THE MATTER of a claim for benefits by
A.B.
Seq. 1
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IN THE MATTER of an appeal to an Umpire by the Commission from the decision of a Board of Referees given on June 18, 2009, at Gaspé, Quebec.
GUY GOULARD, Umpire
The claimant filed a claim for benefits on December 20, 2004. A benefit period was established for him effective December 5, 2004. On his claim for benefits, the claimant stated that he lived in Pabos Mills, Quebec. He submitted Records of Employment from employers in the Montreal region, showing that the claimant's address was in Montreal. The claimant's driver's licence also indicated that he lived in Montreal. The Commission determined that the claimant's real place of residence was Montreal and that he did not accumulate the required number of hours of insurable employment to have a benefit period established. He accumulated only 460 hours of insurable employment during his qualifying period and the minimum number of hours of insurable employment required pursuant to section 7.1(2) of the Employment Insurance Act to qualify for benefits was 910 hours, taking into consideration that his place of residence was Montreal and not Gaspésie. The Commission cancelled the benefit period. This decision resulted in an overpayment of $14,884.00. The Commission also determined that the claimant knowingly made false or misleading statements in stating that he lived in a region other than his current place of residence. The Commission imposed a penalty of $2,478.00 on the claimant and issued him a notice of violation.
The claimant appealed from the Commission's decisions to a Board of Referees, which unanimously allowed the appeal on the issue of the imposition of the penalty and the notice of violation and allowed the appeal in a majority decision on the issue of the cancellation of the benefit period resulting in an overpayment. The Commission appealed to an Umpire from the Board's decision on the issue of the claimant's place of residence and the cancellation of the benefit period resulting in an overpayment. This appeal was heard in Percé, Quebec, on July 14, 2010. The claimant attended the hearing and was represented by counsel C.D.
This appeal was heard together with the Commission's appeals from the decisions of the same Board of Referees regarding the benefit periods established on December 25, 2005, and December 24, 2006, respectively. The issue under appeal as well as the evidence in the three appeal dockets is the same, for all practical purposes, in the three dockets and the same decision applies to all three cases. For the purpose of the arguments and references to exhibits in the dockets, the docket regarding the benefit period established on December 24, 2006, was used. I note that these cases had been appealed before me in February 2009. At that time they were also appeals from the Commission. I had returned the matters back to a new Board of Referees with instructions to the Board hearing the appeals that it take into consideration all the evidence in the docket.
As indicated, the only issue under appeal is the determination of the claimant's normal place of residence in order to determine the number of hours of employment that he had to accumulate in order to qualify for benefits under section 7.1 of the Employment Insurance Act.
The evidence on which the Commission based its decision regarding the claimant's normal place of residence during the periods relevant to the appeals is the following:
In his appeal to the Board of Referees, the claimant repeated that he considered his normal place of residence to be Gaspésie and that he only went to Montreal because there was work there. He maintained that he lived in Montreal exclusively for employment purposes and that he never intended to become a permanent resident of Montreal. He indicated that his banking institution was in Gaspésie. The claimant added that, in order to work in a region other than his own, he needed to have an address in the region where he was working.
The claimant explained that at the time he gave his statutory declaration on May 24, 2007, he was having problems with his spouse and had drinking problems, which made him confused and caused him to neglect his affairs. He submitted a confirmation of treatment for drinking problems. He decided to take charge of his life and returned to Gaspésie to take part in a treatment program.
To support his position, the claimant submitted the following documents:
The claimant explained that he did not keep more documents for previous years because of his condition at the time.
In his written arguments to the Board of Referees (Exhibit 24), the claimant's representative gave additional explanations regarding the claimant's answers in the statutory declaration. He repeated that the claimant's housing in Montreal was for the purpose of his employment and that he, in fact, had several personal items in Gaspésie. The representative referred to the case law.
In its decision, the Board of Referees reviewed the evidence in the docket in detail as well as the evidence presented at the hearing. The Board accepted the claimant's explanations regarding the answers he gave in his statutory declaration. The Board pointed out that, in order to work in the construction industry, employees need to have an address in the region where they work and employers are required to ask workers from Gaspésie for a change of address, supported by evidence.
The Board found as follows:
Many workers from remote regions outside of large cities find themselves in a similar situation. The Board of Referees finds that the claimant's residence for the periods in question was in Gaspésie. Montreal served only a utilitarian purpose in the claimant's life.
The Board also referred to the case law and allowed the claimant's appeal in a unanimous decision.
On appeal from the Board of Referees' decision, the Commission argued that the Board erred in law by failing to consider all the evidence in the appeal docket and by failing to explain why it dismissed the claimant's initial statements from his statutory declaration of May 24, 2007, in favour of his testimony at the hearing.
Counsel C.D. produced a transcript of the hearing before the Board. He argued that the Board's decision was well founded on the evidence as a whole and that the Board had properly summarized this evidence and explained why it was accepting the claimant's explanations regarding the answers he gave in his statutory declaration. Counsel also argued that the Board had accepted that the claimant indicated his address as being Montreal because at the time of the declaration he was living in Montreal. The representative pointed out the abundance of evidence on which the Board could have based its decision regarding the claimant's normal place of residence.
C.D. argued that the members of the Board of Referees, who are residents of Gaspésie, thoroughly understood that many workers from this region must go to work in other regions because of the shortage of work in Gaspésie.
C.D. argued that determination of the issue (identifying the claimant's normal place of residence during the relevant periods) involves a finding of fact and that this finding of fact is the responsibility of a Board of Referees and cannot be set aside unless it is unreasonable. C.D. referred to the case law and argued that the Commission's appeal should be dismissed.
Contrary to the Commission's arguments, I find that, according to the directives I gave in my decision of February 27, 2009, the Board of Referees reviewed and summarized the varied evidence in the docket and explained why it attached more importance to the claimant's oral testimony than to his answers in the statutory declaration. The Board referred to a number of exhibits submitted by the claimant and noted the claimant's explanation for the lack of documents for previous years. The Board also noted the claimant's explanation regarding his answer that he was not living with his mother, which is to say that he believed that the question was referring to the moment at which he gave the answer.
In Dufresne, A-1044-96, Décary J. noted that the Board had confronted the claimant about his written statements and accepted his oral explanations. He indicated that the Umpire could not therefore find that the Board had ignored the claimant's written statements.
In CUB 61554, Dubé J. wrote the following:
The term "normal place of residence" was used by the legislator to distinguish a customary place of residence from a temporary one. A young man who normally lives with his parents is living where he works on a temporary basis until he moves away to settle elsewhere. This was the Board's finding when if decided that the claimant's "normal place of residence" was his parents' home in Leech (Tracadie region).
Under the circumstances, there are no grounds for rescinding the decision of the Board of Referees, which did not err in law and did not base its decision on an erroneous, absurd, or arbitrary finding of fact or did not take into account the facts brought to its attention.
In CUB 21968, Strayer J. indicated that the week that should be taken into account to determine the claimant's normal place of residence is the week before the claimant applied for benefits. In this case, the claimant filed his claim in Gaspésie because he had returned home at that time.
In CUB 69529, Riche J. wrote the following:
There is no doubt that he lived in Salmon Creek for a considerable time working during the year, but at the end of the season, he returned home to Norton. That, in my view, was sufficient to show that that is where he was ordinarily resident. By going away to work did not change his residence. The words used in Regulation 17(1)(a)(b) refers to where the claimant was ordinarily resident in the week before he applied for benefits.
The case law (Guay, A-1036-96; Le Centre de valorisation des produits marins de Tourelle Inc., A-547-01; McCarthy, A-600-93; Ash, A-115-94; Ratté, A-255-95; Peace, A-97-03) has indicated that an Umpire cannot substitute his opinion for that of a Board of Referees, unless he feels that the Board's decision was made in a perverse or capricious manner or without regard for the material before it. In this case, the Board's decision is entirely consistent with the evidence.
The Umpire's authority is limited by section 115(2) of the Act. Unless the Board of Referees failed to observe a principle of natural justice, erred in law or based its decision on an erroneous finding of fact, the Umpire must dismiss the appeal.
The Commission did not show that the Board of Referees erred in this way. On the contrary, the Board's decision is well founded on the abundance of evidence before it and on the relevant case law.
Consequently, the appeal is dismissed.
Guy Goulard
UMPIRE
Ottawa, Ontario
August 12, 2010