CUB 75889

ROBERT L. BARNES, Umpire

This is an appeal by the Claimant, D.V., seeking to set aside a decision of the Board of Referees (Board) dated July 6, 2010.

Neither party requested an oral hearing in connection with this appeal and, in the result, this decision is rendered on the written record.

The jurisdiction of an Umpire dealing with an appeal such as this one is established by subsection 115(2) of the Employment Insurance Act, S.C. 1996, c.23 (the Act). That provision provides for the following grounds of appeal:

(a) the board of referees failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;

(b) the board of referees erred in law in making its decision or order, whether or not the error appears on the face of the record; or

(c) the board of referees based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.

Mr. D.V. challenges the Board decision on the basis of an alleged factual error made in connection with his evidence that he had appropriately notified his employer of his reasons for not reporting to work.

The standard of review applicable to an appeals under subsection 115 of the Act has been described by the Federal Court of Appeal in Budhai v. Canada (Attorney General), 2002 FCA 298, [2003] 2 F.C. 57 where it held:

[47] On the basis of the factors considered above, I conclude that umpires ought to show restraint when determining whether a board of referees has erred in law in applying the statute to the facts on a matter within their expertise. However, the absence of a strong privative clause, the adjudicative nature of the board's functions, and its lack of legal expertise, lead me to conclude that unreasonableness simpliciter, and not patent unreasonableness, is the appropriate standard of review.

[48] On the other hand, umpires should determine for themselves whether the board correctly decided questions of statutory interpretation that either arise on the face of a board of referees' decision, or can fairly be regarded as implicit in it. Apposite in this context is the observation of the Supreme Court of Canada in Housen v. Nikolaisen, supra, at paragraphs 8-10, that it is the role of a judicial appellate body to ensure that the correct law has been applied.

The sole issue presented by this appeal concerns the adequacy of the Board’s reasons in dealing with the conflicting evidence between the parties. The Claimant and his brother testified before the Board. They both claimed to have called the employer on a number of occasions to report the Claimant’s illness. This evidence was disputed by the employer.

Notwithstanding the Commission’s earlier decision to accept the Claimant’s evidence, the Board took a different view and rejected the claim. The Board’s reasons, however, failed to explain how the conflict in evidence was resolved. The Board did not find that the Claimant’s evidence of attempting to contact his employer was not credible. Indeed, at one point in the Board’s reasons the Claimant is faulted for being unable to explain why the employer did not receive his messages. The Board concluded its decision on the following basis:

In this case, the Board finds as a fact that the claimant has not provided medical evidence to indicate he was incapable of working due to illness and failed to discuss his medical condition with his employer in spite of his testimony that he had trained others to do so in the past. Therefore, he is responsible for his unemployment. His actions would have resulted in loss of employment either by dismissal or voluntary separation.

The problem with the above determination is that it fails to indicate how the Board assessed the Claimant’s evidence and, more importantly, why that evidence was rejected. The legal obligation resting on the Board to provide adequate reasons to support its conclusion in a credibility case was described in the following passage from Parks v Canada (Attorney General), 228 NR 130, 1998 CanLII 8058 (FCA) at para. 5:

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.

The Board’s reasons in this case are inadequate to support the conclusion it reached and the matter must be remitted for reconsideration by a different decision-maker.

For the above reasons, the appeal before the Umpire is allowed.

R. L. Barnes

UMPIRE

OTTAWA, Ontario
December 9, 2010