IN THE MATTER of the EMPLOYMENT INSURANCE ACT
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IN THE MATTER of a claim for benefits by
DANIEL BRUNET
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IN THE MATTER of an appeal to an Umpire by the Claimant
from the decision of a Board of Referees given at
Saskatoon, Saskatchewan on August 14, 2001.
The Honourable R.E. Salhany, Q.C.
This appeal was heard at Saskatoon, Saskatchewan on Friday, November 29, 2002. At issue on this appeal is whether the Appellant lost his employment because of his own misconduct and whether he had sufficient hours of insurable employment to qualify for benefits.
The evidence in the file and the reasons of the Board indicate that the Appellant was fired from his job with Hillsburgh Stock Farm for failure to show up, for work. He then went to work from two other employers and was injured on the job while working for the second employer. The Appellant then filed a claim for benefits which the Commission denied because it was of the view that he had lost his job with Hillsburgh Stock Farm due to misconduct and had only accumulated 359 hours of insurable hours. He required 665 insurable hours after his dismissal from Hillsburgh.
On this appeal, the Appellant argued that he had been denied natural justice by the Board of Referees. He made three allegations against the Board. The first was that the information relied upon by the Board was not correct. He said that he had contacted a supervisor at the Commission and asked her to put statements that he had gathered refuting the allegations of the employer into the file to be reviewed by the Board members before the hearing but the documents were not put in the file. The second was that the Chair person cut him off on two occasions when he attempted to show the Board where the information was incorrect. Finally, he said that he had requested that the hearing be tape recorded in case of a further appeal. It was not.
In response to the Appellant's objection, it was pointed out that the statements were put in the file and, in fact, referred to by the Board in their reasons. It was also pointed out that the Board's assistant checked her file and had no record of a request by the Appellant that the proceedings be taped. It was also pointed out that the Notice of Hearing sent to the Appellant directs him to contact her before the hearing so that she can arrange for a machine to be set.
Let me deal with the last issue first. It has been the practice for many years of many (if not all) Boards of Referees to only tape record the hearing if a request is made by the Appellant. This practice, in my view, is fraught with danger. This appeal is a good example of one of them. Here an allegation is made against the Board and there is no transcript to verify the matter, one way or the other. I have difficulty in understanding why Boards of Referees follow this procedure. There is no legislative requirement that they not tape the proceedings unless requested to do so.
In my view, every hearing before a Board of Referees should be tape recorded and the registrar of the Board should ensure that the recording machine is operating properly. There are three good reasons why the proceedings should be tape recorded. The first is that it protects the Board against unfounded allegations of denial of natural justice. The second is that a Board who is aware that proceedings are recorded will be more vigilant to ensure that litigants are being afforded natural justice. Finally, the appellate tribunal will have a record of the proceedings in the event that either side wishes to attack the proceedings before the Board on any of the grounds set out in section 115(2) of the Act.
On this appeal, Ms. Sittler submitted that the reasons of the Board are comprehensive and unassailable either in fact or law, and are fully supported on the evidence. On the surface, they appear to be so. However, over and above the question of the weight or preponderance of the evidence is the right of every litigant who appears before a Canadian court or tribunal to feel that he or she was given the right to present their evidence, that the tribunal listened to that evidence and that they were given the opportunity to make submissions upon the completion of the case. This is a fundamental requirement of natural justice.
Here the Appellant has complained that he was not given natural justice. Even the most overwhelming evidence against him should never prevail in the absence of natural justice. Since there is no transcript of the proceedings, I am unable to assess whether his denial of natural justice has any merit. There must therefore be a new hearing.
The appeal will be allowed and the matter sent back to be heard by a Board of Referees differently constituted.
Dated this 11th day of December, 2002.
R.E. Salhany
Umpire
2011-01-10