Penalties/False and Misleading Representations
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CUB 23335Umipre Decision - The penalty and overpayment placed on the claimant had been assessed after the 36 months from the date on which the false and misleading statement, representation or piece of information was made. Secondly the Commission had relied on information concerning the time that the claimants devoted to their community and volunteer work rather than the amount of time that the claimants devoted to their employment. The appeal was allowed.
Appellant: Monique Belanger « et al »
CUB 68936Umipre Decision -The claimant had stated that he felt intimidated by questions that the Commission officer was asking and he was not in the right frame of mind and did not fully understand the facts provided in his statement when it was being read. He also indicated that he had not been searching for employment because he was waiting to be called back to work by his employer. The Umpire with respect to the previous decisions by the Boards found that the evidence did not establish that the claimant made statements that he knew to be false with respect to the periods in question. The Umpire rescinded the decisions of the Board of Referees and allowed the claimant's appeals on the issue of imposed penalties and the notices of violation for both periods in question.
CUB 51359Umipre Decision - The claimant admitted that the information he gave was false. On this issue the Board found the following:
" The Board finds that the claimant did not report his self-employment until the reporting period of March 5th to March 18th, 2000, when in facts it has been established that he was self-employed as of February 28th, 2000. The Board finds that the claimant knowingly made false and/or misleading statement when he did not report that he was self-employed as of February 28th, 2000."
The claimant provided false information on his TELEDEC report cards in January and February 2000, he had also, on a number of occasions, informed the Commission that he was starting his own business and planned to spend all of his time with it. This was confirmed on his application for benefits, his entitlement questionnaire, other reports and during a telephone interview. The claimant was given the benefit of the doubt that he therefore did not knowingly provide misleading information. The appeal was allowed.
Appellant: David Millard
CUB 54184Umipre Decision -The claimant stated that she was not aware of filling out her weekly report cards without declaring her earnings and that she had in fact worked. The Board found that claimant had filled out her report cards for the dates incorrectly. The Umpire stated that the Board did not give the benefit of the doubt that must be given to a claimant. Even though the claimant put the numbers in the wrong place and that does not suggest that she knowingly made a false statement. The appeal was allowed.
Appellant: Areta Decambra
CUB 69680Umipre Decision -The Commission determined that during his benefit period, the claimant received earnings which he did not declare. They allocated these earnings, resulting in an overpayment of $1,107.00 and they also imposed a penalty for providing false and misleading information in the amount of $554.00 as well as a notice of violation. The Board of Referees dismissed the claimant's appeal but reduced the penalty to $275.00. The claimant stated that he was not contesting the amount of overpayment but that he never knowingly provided the Commission with false information. He stated that his error was likely due to his employer's poor reporting and bookkeeping. The Umpire found that the Board had failed to address this explanation and had not addressed the issue of whether the claimant had knowingly provided false information. Based on this, the Umpire allowed the claimant's appeal on the issue of the imposition of a penalty and a notice of violation.
CUB 55430Umipre Decision - The initial claim for benefits had been filed at the start of the classroom component of his apprenticeship training. In the appeal to the Umpire the claimant makes reference to a number of documents, which he says, the Board refused to consider. It is clear that because the appeal was heard by telephone that the Board would not have had those papers in their possession. The Commission concedes that the penalty shouldn't be imposed due to the need of clarification of the entire issue of earnings. The appeal for the penalty was allowed and the issue relating to the undeclared earnings was returned to the Board.
Appellant: Duane Vader
CUB 43517Umipre Decision - There is no dispute that the claimant's reporting cards were filled out wrong but the question is whether that it was done deliberately and intentionally. The claimant under reported her earnings for some weeks and reported no earnings for others. The claimant stated that she was told to estimate her earnings by the Commission. The claimant stated that she struggled with the paper work, this is a reflection of her confused state of mind. The Board identified and equated"confusion" with "carelessness." The Umpire consulted The Shorter Oxford Dictionary for the definition of confusion. There it states: "Mental discomfiture; a disordered condition."
The Umpire doesn't believe that it was "confusion" or "carelessness", he believed that the claimant suffered from mental discomfiture. The Board having acknowledged the claimant's problem with paper work thereby acknowledged her state of confusion and that alone provides a reasonable and acceptable explanation for the claimant's inaccurate reporting. The appeal was allowed.
Appellant: Tanni D. Bangham
CUB 51192Umipre Decision - The claimant is appealing a decision that imposed a penalty of $3,717.00 for knowingly omitting to declare her earnings. The claimant stated that she made an unintentional error and says that she misunderstood the instructions on the cards. She stated that the she was instructed by an HRDC employee to fill out the cards the way she did. There is some question in this case that the claimant may have been mislead by an employee of the Commission on how to fill out the cards. The Umpire agreed that the he could see how a first time claimant could be confused and make an error. The Board requested that the Commission reduced the penalty, when they could have reduced the penalty themselves. In these circumstances and considering it was truly an error in reporting without intention, the penalty was reduced by 50%.The appeal was allowed in that the penalty be reduced.
Appellant: Terry Nusyna
CUB 52852Umipre Decision - The claimant does not dispute that he failed to declare his earnings but the issue is whether or not he did it knowingly. In a letter that the claimant sent to the Commission the claimant stated that there were "situations going on that affected his ability to think things through properly." The claimant's father was very ill with a brain tumour, he and his common law wife had separated and this left him with very little access to his young son and he had financial problems that forced him to declare bankruptcy. The Board made a comment bout the claimant's credibility, "came across in an honest and forthright manner with his answers to the Board's questions." If that was the case rather then send the issue back for a re-hearing the Umpire will give a decision that the Board should have gave. The Umpire stated:
"Knowledge implies a mental element - what lawyers call mens rea - as an essential ingredient in the act or omission relied on by the Commission when it impose a penalty or issues a warning. Having regard to the stress factors in Mr. Axt's life at the time I accept his explanation as reasonable and find that he did not knowingly fail to declare his earnings."
The appeal was allowed.
Appellant: Eric Axt
CUB 53360Umipre Decision - The claimant is consistent throughout stating confusion. Confusion is defined as he absence of realization of what was being declared, pressure, and the absence of adequate knowledge of the language in the circumstances. Relevant cases that were brought forth in the decision making were CUB 18959Umipre Decision, CUB 43517Umipre Decision and CUB 15633Umipre Decision. In CUB 18959Umipre Decision the Umpire stated:
"In the absence of any evidence indicating the claimant's intent and knowledge as regard to false statements, I have no alternative but to find that the imposition of a penalty....is inappropriate."
In that case the appeal was allowed and the penalty was set aside. In CUB 43517Umipre Decision, the Umpire referred to Black's Law Dictionary to demonstrate that carelessness and confusion cannot be confused or identified as recklessness and the knowledge required to establish a false or misleading statement. The Umpire said "intention is the key". The appeal on false statements and violation was allowed.
Appellant: Donovan Johnson
CUB 55341Umipre Decision - The claimant doesn't argue that he worked and had earnings during his benefit period. He argued that he had reported that he was working when he applied and he believed that this constituted all the reporting required. He stated that he had been led to believe this was right as a result of information that the Commission staff gave him. In this case the claimant knew that he was working and receiving earnings but he stated that he never tried to hide this from the Commission. He assumed that since he reported these he did not need to report them again. The Umpire feels that the claimant never attempted to mislead or misinform the Commission. The Board failed to take into the claimant's statement state of mind and that it repeated his explanation that he believed because he had reported his earnings and employment earlier and that he felt he did not have to report it again. The Board failed to accept that this may have been an honest mistake. The appeal was allowed.
Appellant: Lanny Parent
CUB 56432Umipre Decision - The claimant states that the Board did not take into account the effect of the medication he was taking. In the view of the Umpire the Board did not apply the proper test to determine that the claimant knew of his failure to report earnings. In A.G. Canada v. Gates (1995) 184 N.R. 236, the test expressed by the legislation is subjective in nature. Linden, J.A. wrote:
"....but there has been some confusion and disagreement in cases concerning the meaning of the concept of knowledge in this situation. In my view, the words "knew to be false or misleading" requires a subjective test in determining whether the requisite knowledge is present. If Parliament had intended that an objective standard be used, it would have included the words "had reason to know" as is often done in legislation."
The Board in this case arrived at the conclusion that the claimant knew the information was false and misleading pursuant to section 38 of the Act. The Board erred in applying the opposing test. The words "should have known" is clearly an objective test and the words "the claimant knew" are not. The appeal was allowed.
Appellant: Randall Legault
CUB 67416Umipre Decision - The claimant worked two different positions and each position had a different wage. In making her reports using the teledec, she was advised to estimate her earnings as she was required to report before she received her pay. The claimant followed these instructions and did not knowingly declare a false report. The Commission advised the claimant that she had misreported earnings of $466 and $3,897, claiming that the claimant had only declared $362 and $2,832 for the same period. The Commission then imposed a penalty of $504 and a notice of violation. The Board of Referees in their conclusion found that the claimant did not knowingly make false or misleading statements due to her medical issues and confusion around her pay scale. They dismissed the appeal with respect to deduction of earnings from benefits and the notice of violation issued for providing false information to the Commission but allowed the appeal with respect to the penalty for knowingly failing to actively report earnings. The claimant had repaid the overpayment and included in that she had paid $504 in penalty. The Umpire found that the appeal of the claimant should be allowed with respect to the notice of violation and the penalty that she paid in the sum of $504 should be returned to her. The appeal was allowed.
Appellant: Anne Marie Sayazie
CUB 67443Umipre Decision - The claimant received and accepted a contract with UQAM in February 2005, under which she was to provide approximately 80 hours of services involving workshop facilitation, correction and exercises. Because of a strike at UQAM, the contract was not signed until March 15, 2005. The claimant was unable to work before April, even though the contract was signed March 15, 2005. She was not paid earnings until April 7, 2005.The Commission determined that during her benefit period, she worked for UQAM from January 9 to March 6, 2005, and received earnings she did not report. The unreported earnings were deducted from the benefits paid to her, resulting in a $247.00 overpayment. The Board allowed the claimant's appeal stating that the University's practices for managing the pay of part-time staff may be warranted for management purposes and may impact the rights of these individuals in terms of Employment Insurance. The Umpire found that the undisputed evidence in the instant case has established that during the period in question, the claimant did not sign a contract, did not perform services and did not receive earnings. As she testified, if the strike had continued she would have been unable to teach and would not have received any earnings. The appeal was dismissed.
CUB 45025Umipre Decision - The Board felt that the appellant's case lacks credibility because witnesses were either related to the appellant or related to the owner of the company. Each case must be judged on its individual merits. The testimony of a witness who is related to the complainant is not to be given, in law, less weight than that of any other ordinary witness. In its reasons for judgement, the Board went on to say that the appellant's version of the circumstances "run counter to this Board's general experience of normal business operations and practises". The Umpire said the Board in doing so " misunderstood its duties and responsibilities as an impartial arbiter". The appeal was allowed.
Appellant: Jeeto Kaur Deol
CUB 45241Umipre Decision/A-547-99Umipre Decision - At issue is whether the appellant gave 13 false or misleading statements on his application for benefits. As the federal court of appeal said in McDonald v. Canada, merely disbelieving a claimant's testimony is not sufficient basis for the Board's conclusion that the claimant knowingly made a false statement...the onus of proving that the claimant knowingly made a false statement is on the Commission. In reaching its conclusion, the Board appeared to place an onus upon the appellant to ask for clarification on the questionable credibility of the claimant...this places the onus on the claimant to establish that he or she did not knowingly make a false or misleading statement. The Umpire stated that this was an error in law. The appeal was allowed.
Appellant: Giuseppe Insalaco
CUB 53672Umipre Decision - The claimant maintained that he had worked during his benefit period but that he had only received one benefit payment. The claimant claimed that someone had forged his signature on his report cards and that he was not aware the payment had continued to be deposited in his account and that someone else had deposited them and withdrew the money using his PIN number at ATM machines. The Board accepted this evidence and they found the claimant to be credible. The Commission stated that they had obtained new information that put the claimant's credibility in doubt. In this case the Board reviewed the evidence before it and it made a finding that the claimant was credible. The appeal was dismissed.
CUB 60871Umipre Decision - The uncontested evidence is that on two report cards the claimant had only filled the left sides of the card as to one week of work and earnings and omitted to report his second week of employment. On the third card, which had been prepared and signed by the claimant's mother, both weeks of employment were reported. When the claimant did provide an explanation he indicated that he had only reported an estimate of his earnings because at the time of reporting, he was unsure what the exact amount would be. The Board felt that claimant had knowingly failed to report his earnings and that his explanation was not credible. The claimant stated that he had not tried to hide anything from the Commission, he had just not taken the time to realize that he had to report two weeks on each card The Board erred in their decision, they could not simply reject the claimant's explanation by saying that he lacked credibility, they had to explain why they found the claimant not to be credible. This is an error in relation to subsection 114(3) of the Act, as well as it goes against jurisprudence of Parks (A-321-97Umipre Decision), Boucher (A-270-96Umipre Decision) and Mootoo (A-438-02Umipre Decision). The claimant's explanations, according to the Umpire, are credible, but he did act negligently. The penalty appeal was allowed.
Appellant: Andreas M. Rothe
CUB 73661Umipre Decision/A-16-10Umipre Decision - There was evidence on the file that the claimant had undeclared earnings. The Umpire reversed the decision of the Board that had concluded there were no false or misleading statements based on their interpretation of the evidence on file. The found the claimant credible and the evidence inconsistent based on the employer actual pay stubs. The Court found that the Board’s decision was reasonable and reversed the Umpire. The Board had found the claimant credible and held that the employer’s pay slips were “ inconsistent and shoddy” as well as noting that the employer’s declaration to HRSDC was inconsistent with the evidence in the actual pay stubs. The decision of the Umpire was set aside.
CUB 54726Umipre Decision - The Board determined that the work that the claimant was involved in was unpaid and that she was subject to no work schedule or fixed hours. The claimant was working at the boutique for her husband to fill in her free time and to feel useful. The Umpire stated that:
" In these circumstances, it seems to me quite clear that there was no employee/employer relationship between her and the boutique, where she worked unpaid, yet such a relationship is of the essence (Cummins CUB 11084Umipre Decision, confirmed by the Federal Court of Appeal (A-802-85Umipre Decision))."
The appeal was disallowed.
CUB 48287Umipre Decision - The claimant was appealing the decision that his claims for benefits were cancelled because he had applied for them using false records of employment. Due to this they also determined that he gave 14 false or misleading statements and that a penalty of $3,080.00 was being imposed, a couple weeks later they also imposed a penalty of $810.00 for 3 more false or misleading statements. It is not suggested that the claimant made any false or misleading statements, rather it is the Commission's position that he made a claim based on false information. On each card he submitted he represented that he was entitled to benefits. It is the Commission's argument that each reporting card can be viewed as a new attempt to deceive the Commission. The Umpire doesn't accept the Commission's argument on the penalty issue, with respect to that issue the appeal was allowed.
Appellant: Gurpreet S. Gill
CUB 54359Umipre Decision - The claimant was employed at a family business when it was determined by Canada Customs and Revenue that her employment was not insurable. The claimant went on benefits November 19, 1998 due to a shortage of work, even though she continued to work there without pay. The Board found that because she continued to work they found that her documents (ROE) to be false and misleading. The Board seemed to confuse the ROE with that of the reporting cards. In regards to this the Board erred in law when it based its decision on erroneous finding of fact. The claimant neither issued or prepared the ROE, it was prepared by the employer. There is no evidence that the claimant delivered the ROE to the Commission. Under subsection 19(3) of the Regulations it is the employer's duty to send the copy of the ROE straight to the Commission. The claimant cannot be penalized with respect to false and misleading representation contained in the ROE unless it is proven that they participated in the representation. There is no evidence that she did this. The appeal was allowed.
Appellant: Lola Dunlap
CUB 50112Umipre Decision - The claimant, now retired, has made a complaint that his employer made errors in reporting his income to the Commission. The claimant states that the Commission has accepted the records of the employer over his evidence and allocated undeclared earnings. The Umpire finds that the employer has made numerous mistakes which had to be corrected which could well indicate that their records have more errors. Moreover, the proposition that there is an onus upon a claimant to prove errors by an employer or lose, is not supported by any legal authority. The Umpire said it is an error in law to apply such a presumption. The appeal was allowed.
Appellant: Roy Barnett
CUB 53161Umipre Decision - The Commission presented three statutory declarations from co-workers stating that the claimant had worked from 1993 to 1996. The Board reviewed the documents along with the verbal presentations and they found that the claimant had not provided sufficient evidence that she did not make false or misleading statements. It has been held in a number of decisions that the Board cannot ignore direct, oral evidence in favour of indirect hearsay evidence. In CUB 36927Umipre Decision, Justice Stevenson wrote:
"The Board of Referees erred in principle by ignoring direct, oral evidence which was subject to cross-examination in favour of indirect hearsay that was not subject to testing by cross-examination. The Board thus gave its decision without regard for the material before it."
In this case the claimant's denial of the facts against her was rejected in favour of sworn practices after the events in question. The Umpire said the Board's decision was arrived at without regard for the claimant's full denial that she worked during the period she was receiving benefits. The appeal was allowed.
Appellant: Norma Long
CUB 53529Umipre Decision - The claimant and his father stated that the he was incarcerated for the period in question. The jurisprudence has established that the Board is the primarily tribunal for the finding of facts in employment insurance cases. In the Guay case (A-1036-96Umipre Decision), Justice Marceau wrote:
" We are all of the opinion, after this lengthy exchange with counsel, that this application for judicial review of a decision of an umpire acting under the authority of the Unemployment Insurance Act is entitled to succeed. It is our view, in fact, that in contradicting as he did the unanimous decision of the Board of Referees, the umpire failed to remain within the limits of his power of review and supervision under the Act... In any event, it is the Board of Referees "the pivot of the entire system put in place by the Act for the purpose of verifying and interpreting the facts" that must make this assessment.
The Umpire stated that the Commission could not show that the Board erred in law or that they based their decision on erroneous finding of facts. The appeal was dismissed.
CUB 54357Umipre Decision - The claimant is appealing the decision that imposed a penalty of $632.00 for failing to declare earnings while receiving benefits. The claimant may have been confused about his earnings because the employer gave four different amounts of his earnings. The Board noted the claimant's confusion and stated:
"In accordance with CUB (sic) A-897-90Umipre Decision the court indicated that there was another element of proof required when determining if a false statement was knowingly made by a claimant and that was the claimant's state of mind. In this case the claimant told the Board he was going through personal difficulties and that combined with the earning discrepancies could have caused some of this conflicting misinformation."
In dismissing the appeal it is clear that the Board erred in law and that its decision was not supported by its findings of fact. As well, the record does not contain the report cards on which the incorrect earnings were allegedly given. The appeal was allowed.
Appellant: Bill Dorrington
CUB 54361Umipre Decision - The Commission found that the claimant had failed to declare some of his earnings. He argues that this was an honest mistake in paper shuffling similar to his own mistake in reporting earnings. The Umpire states:
" In any event, the Board of Referees erred in fact by not taking into account that the claimant had over reported his earnings for some periods for precisely the same reason he had under-reported in others. Furthermore, the Board erred in law by failing to apply the principle that in order for a penalty to be imposed and a notice of violation to be issued, it must be established that the claimant intended to make a false and misleading statement and that the intention existed at the time the statement was made. In other words, before a penalty can be imposed or a notice of violation issued, it must be determined that the claimant acted in "bad faith", that is, dishonestly. There is absolutely no evidence of that in this case and the Board's decision is therefore not sustainable."
The appeal was allowed.
Appellant: Clayton Gosselin
CUB 56034Umipre Decision - In this case, the claimant seems to have a long standing dispute with the Commission over her claims. She stated to the Board and the Umpire that she is still owed money from the Commission. The claimant sued the Commission in Small Claims Court in this regard and is still owed money. The claimant denied failing to report her earnings and that she had reported all of them using the Teledec. In the Caverly decision (A-211-01Umipre Decision), the Court held that the Commission has the onus of proving that a claimant knowingly made false or misleading statements on the balance of probabilities. Justice Rothstein wrote:
The Commission has the onus of proving the allegation that a claimant knowingly made a false or misleading statement on a balance of probabilities. See McDonald, supra, at page 742. In our opinion, in order to discharge that onus, the Commission must adduce evidence of both the actual questions asked, as well as the answers given.
The claimant states that she reported her earnings. The Commission didn't satisfy the onus of proving that the claimant had knowingly made false and misleading statements. The appeal was allowed.
Appellant: Aurea White
CUB 58444Umipre Decision - The evidence in this case shows that the claimant's wife had made false Teledec claims using her husband's information and cashed the benefit warrants, all unknown to the claimant. The Board referred to rule that states when someone has been authorized to act on behalf of a claimant, they are liable to be penalized for making false and misleading statements, regardless of whether or not it is known what the representative is doing. This case is governed by the decision from the Federal Court of Appeal decision Fournier v. Canada (Human Resources Development) (2002), 289 N.R 388. This case states:
The plaintiff never alleged he was entitled to benefits during the period at issue. He did not fail to report the earnings received... He did not receive the benefits. Accordingly, there can be no question of an overpayment within the meaning of the Act so far as he is concerned.
The appeal was allowed.
Appellant: John A. Bowser
CUB 58445Umipre Decision - The Commission asked the employer to provide the claimant's total earnings for the period of November 13, 1999 to July 1, 2000. The employer came back with a figure of $8,526.18, the Commission made no attempt to determine how much was made between July 2 to July 13. It instead prorated the amount on the basis of the number of days (234) to July 1 against the number of days (246) to July 13, the Umpire could not find any statutory justification for this. The claimant stated that he earned $1425.20 from June 30 to July 13. He may have meant for the weeks beginning July 2 and July 9, if this was the case, his net undeclared earnings to July 1st and the amount of overpaid benefits was $540.98, not $1550, as the Commission had decided on. There is no evidence to show how much of the $8526.18 was earned after July 1st, in the view of the Umpire it was the Commission position to obtain this information, rather than rely on a artificial mathematical calculation. The Board erred in finding that the Commission had correctly come upon the overpayment. The appeal was allowed.
Appellant: Bill A. Dorrington
CUB 68523Umipre Decision - The claimant had filed a claim for maternity and parental benefits and had requested an exemption from completing reporting cards or reports. She had been paid some monies relative to a business owned by her and her husband for administrative services at the end of the accounting year. She did not receive pay checks from the company and only occasionally would perform some administrative duties at her husband's request. The Commission's position was that the claimant had provided false information by omitting to declare her self-employment during the period in question relative to her "Exemption from Completing Claimant's Report" form. The Umpire said that as had been held in CUBs 64447Umipre Decision and 64895Umipre Decision failure to inform as required by the exemption did not constitute false or misleading representations. The appeal was allowed.
Appellant: Simca Ronald
CUB 20064Umipre Decision - The claimant acknowledges his fault. He admits he made a mistake and admits that a penalty should be imposed. However, the issue at hand is the amount the claimant is being penalized (100%). The penalty is reduced to 25% of the undeclared earnings. The penalty was reduced.
Appellant: David Bodnar
CUB 25101Umipre Decision - He received a refrigerator, stove, washer and dryer in lieu of cash totalling $1,648.50. This was found to be earnings for benefit pursuant to Section 57 of the UI Regulations. In relation to these earnings, it was alleged that the claimant made three false or misleading statements but did not do so knowingly or intentionally. The penalty of $1,167.00 was written off.
Appellant: Daniel O'Rouke
CUB 34664Umipre Decision - The claimant did not declare monies allotted to him through an insurance settlement. The claimant proved that he was unaware at the time he filled out his cards that he received any funds as the information was being funnelled through his representative. The appeal was allowed in part as the overpayment was reduced and only the net amount recovered on income replacement is to be divided by the 26 weeks covered by the insurance settlement. The appeal was allowed in part.
Appellant: Segundo Mella
CUB 39463Umipre Decision - The claimant was issued a penalty for false and misleading statements. The Umpire found that if one does not know a statement is false when she makes it she cannot be said to have made it knowingly. The knowledge must have existed at the time of making the statement. The appeal was allowed.
Appellant: Helen M. Waly
CUB 41345Umipre Decision - The claimant did not declare earnings she made from an establishment. However, she declares emphatically that she paid back the overpayment and some of the penalty but she was unable to specify with certitude the amount. Umpire exercised the right to expunge the penalty. The appeal was allowed in part.
Appellant: Patricia Sotiropoulos
CUB 47151Umipre Decision - The claimant simply said, "I made a mistake on my cards". The Umpire interpreted that statement, having regard to his demeanour in expressing himself, that he made an honest mistake - and - not a deliberate mistake. The claimant said he found a job at Macdonald's but did not know the hours he would be working or his rate of pay and when he sent in his second report card he tried to estimate as best he could. At the same time he reported to the Commission that he had found employment. He says he had no idea he erred until he received a notice from the Commission 2 years later and, he says, that in good faith he tried to verify the error by checking his records and contacting his employer for information. The appeal was allowed.
Appellant: Freeman Moores
CUB 47991Umipre Decision - In support of its findings that the appellant knowingly made false or misleading statements the Board stated:"The questions are straightforward, the cards are filled out very soon after working and receiving earnings, and Mr. MacEwen received help in filling out his cards in early May." In doing so the Board appears to have applied an objective standard to determine whether there was the requisite knowledge on the part of the appellant that the information was false. There is no indication that the Board considered the appellant's explanation as to how it was that he came to provide incorrect information. The Umpire said the Board failed to consider and apply a subjective standard which is an error in law. The appeal was allowed.
Appellant: Darren MacEwan
CUB 51161Umipre Decision - The claimant appeals the decision that she should pay the amount of $2,880.00 in penalties for false and misleading statements on 9 occasions and that the notice of violation should be upheld. The notice was issued in regards to claimant's continued employment without interruption and her continued participation of Crystal Clear Inc. The Umpire said there was no evidence to prove or support the findings. The claimant wasn't engaged in extensive work duties during the reporting times in question, there is no evidence that she received any remuneration for the small tasks that she did, such as the occasional bank deposits and signing of documents. Under these circumstances the claimant cannot have been considered as knowingly making false or misleading statements when she reported that she did not work and was available for employment. The appeal was allowed.
Appellant: Debra Pitre - Asselin
CUB 52197Umipre Decision - The claimant gave birth on August 16, 1999 and began her maternity leave. She applied for benefits on the 20th of August, and stated that she would be returning to work on February 10th. The Commission learned that the claimant had earned $1,558.00 from February 14 to 26. The claimant did not respond to the Commission's request for declaration of these of earnings, due to this, the Commission imposed a penalty of $826.00 for knowingly failing to report earnings. The Board found that the claimant did knowingly make false and misleading statements in relation to s.38 of the Act. It is the claimant's responsibility to report earnings while on benefits. The claimant admits she did not check her records carefully enough. The Board failed to consider the claimant's statement, she was under the impression that she would only receive her benefits until the end date of leave, February 10. A recipient of parental/maternity benefits is not required to submit bi-weekly cards and the claimant's benefits were paid directly to her bank. The Board never considered the claimant's explanation which was an error in law. The Umpire said the explanation was plausible and creditable. The appeal was allowed.
Appellant: Rajeswary Satkunaratnam
CUB 52198Umipre Decision - The Board was quoted as saying:
".... the claimant had knowledge of the possibility of double payment but ignored to correct the situation and inform the Commission. The claimant's denial throughout that he received direct deposit payment and his statement that the bank account was closed, when actually it wasn't constitutes false and misleading statements being made knowingly. The penalty therefore, should apply."
In its representations to the Board the Commission alleged that the claimant had "made false or misleading statements when he cashed the 'replacement' warrants after having already received the direct deposit payments." The direct deposits were deposited on February 2, the claimant cashed the warrants on February 3. The Umpire doesn't think that cashing a warrant can be constructed as making a representation. Assuming for the sake of argument, that the warrants issued to the claimant were "special warrants" there is no evidence in the record that he knew, when he cashed the warrants, that the direct deposits had been credited the previous day. Although the representation that the bank account had been closed was false and misleading that was not the basis on which the Commission relied on when it imposed the penalty or when it made its representations to the Board. The appeal on the penalties and violation was allowed.
Appellant: Luigi Cudini
CUB 53827Umipre Decision - In this case the Board found that by the claimant making false statements under duress from an abusive partner, they didn't believe that the Commission exercised its discretion in a judicial manner. They recommended a reduction in the penalty which the Commission did. The Umpire is this case questioned whether or not the Commission relied on its judiciousness when imposing the penalty. The Federal Court of Appeal decided in Cou Lai (A-525-97Umipre Decision) that the Commission has the sole discretion to impose a penalty when it has found that the claimant has knowingly made a false or misleading statement. A decision to that effect can be questioned by a Board only if it can be shown that the Commission did not exercise its discretion judiciously. In the Purcell (A-694-94Umipre Decision), the court provided a definition for the notion of judicious exercise of discretion. The Umpire stated that the Board should of extended its query on the judicious exercise of the Commission's discretion to impose a penalty. The appeal was allowed.
Appellant: Shelley Taylor
CUB 57456Umipre Decision - The Commission found that she had been employed and that she had failed to report this employment and the earnings she had made from this period. The claimant explained that she had reported that she was working but had not reported her earnings because she was never told to do so. The Commission must prove that claimant knowingly made false and misleading questions and in order to do so the Commission must give evidence of the actual questions asked and the answers given. In this case the Umpire found that the Commission has not done this therefore has not proved that the claimant knowingly provided false or misleading information. The appeal was allowed.
Appellant: Jayme Ducedre
CUB 57996Umipre Decision - The claimant is appealing whether or not he made three false statements which resulted in a penalty of $175.00 and whether or not he left his employment without just cause. It is established that the onus is one the Commission to prove that any statements the claimant has made are false, it is not the claimant's duty. Once the Commission has proven that the statements are false, it is presumed that the claimant knew they were false and then it is up to the claimant to rebut this presumption with a reasonable explanation. The minority decision stated that claimant did not try to falsify anything intentionally and that his poor English skills showed that he was unaware that he had to report that he quit his job while working two part time jobs. In regards to false statements and misrepresentation, the appeal was allowed.
Appellant: Federico Escueta
CUB 58256Umipre Decision - The claimant repeated the same arguments that he had presented before the Board, he also stated that the overpayment occurred because he failed to report his vacation pay and his statutory holiday pay. On the claimant's appeal he submitted that although he failed too report some of his earnings, this would not have affected his benefits as, when he failed to report, he would not have been entitled to benefits for that specific period. According to subsection 19(3) of the Act, when a claimant has failed to declare earnings, the amount of the overpayment is based on the total undeclared earnings during the claim period. This is irrelevant of whether or not there were periods within the duration of the claim when there was no actual overpayment for that specific period. The Umpire was unable to find that the Board erred and the claimant was unable to show that the Commission had miscalculated the amount of the overpayment. In regards to the penalty The appeal was allowed.
Appellant: John Prins
CUB 58270Umipre Decision - The claimant argues that she misunderstood the process and the reporting cards, as well she thought that she only had to declare her full time earnings, not part time. The claimant also stated that she was misunderstood the information she received from the Commission agent and the agent was unclear. The Board found that the claimant's explanations and arguments were not credible and that her answers could only be made knowingly. The Umpire stated that the Board made a credibility finding without explanation and without reasons to justify that conclusion. The Board did not take into account that the claimant had contacted a Commission employee to find out the proper way to report part time earnings and wages. It is possible that the information the claimant received was incorrect or that she had misconstrued the information that she received. The principle is up to the Commission to prove that the claimant had knowingly made false and misleading statements. The claimant's explanations that she provided carry a sincere tone that she did not knowingly make false and misleading statements. The appeal was allowed.
Appellant: Darlene Prior
CUB 59022Umipre Decision - The Commission is appealing the Board's decision to the Umpire. The claimant testified that in regards to Le Centre Sportif St-Eustache, it was her last day of work and that she had gone in by special request and that this day was not included in her ROE. She stated that she did not know that she had to report this day. In regards to Eric Lacouture Op. Clinique, she indicated that she was in a probation period and that she was not supposed to be paid.. In Mootoo, Justice Linden stated:
In order to be subject to a penalty under section 38(1)(a) it is not enough for the representation to be false or misleading; it must be made by the Applicant with the knowledge that it is false or misleading. In Canada (A.G.) v. Gates,  3 F.C. 17 (C.A.) and Canada (A.G.) v. Purcell,  1 F.C. 644 (F.C.A.), this Court made clear that the knowledge of the Applicant concerning the falsity of the offending statement had to be decided on a subjective basis.
In this case, the Board determined, based on the evidence before them, that the claimant did not have the knowledge that would have enabled the Board to determine that she had knowingly made false statements. The appeal was dismissed.
CUB 59369Umipre Decision - In this case there was no penalty imposed but a warning letter and a notice of violation were given. The claimant's position through out the appeal docket was consistent, through out he stated that he had informed the Commission that he was returning to work and that it is the fault of the Commission for continuing to issue his benefits. The Board failed to explain why they did not take this explanation into account. The appeal in regards to the overpayment was dismissed and the appeal in regards to false and misleading statements was allowed.
Appellant: Michael Mclaren
CUB 59373Umipre Decision - The claimant established a claim for maternity benefits. The Commission determined that the claimant had knowingly provided false information, due to this a penalty of $1,757.00 was imposed as well as a notice of violation. The Board accepted the claimant's explanation that she believed she could receive earnings up to the 25% of her benefits. The Federal Court of Appeal has stated that when a Board finds that a claimant had no intent to mislead, the claimant should not have to pay a penalty for knowingly providing false and misleading statements. [See Mootoo (A-438-02Umipre Decision)] In this case, the Board felt that claimant had not knowingly provided false and misleading information. The appeal in regards to the issue of false declarations was allowed.
CUB 59718Umipre Decision - The claimant left his employment with Whitewater Specialties on August 20, 2001 after an argument with his boss. The claimant claims safety concerns and transportation problems as his reason for just cause for leaving his employment. He did not respond to question 1 b which reads, "If you have stopped working, give reason(s) below. A failure to give reasons as for the stoppage of work cannot be characterized as providing false information or otherwise. The facts in this case do not establish that the claimant had done, or omitted to do, anything that gave the Commission any basis on which to impose a penalty. In regards to the voluntarily leave issue, the appeal was dismissed, but, in regards to the penalty issue, the appeal was allowed.
Appellant: Morgan Farnsworth
CUB 60004Umipre Decision - In regards to the second and third issues up for appeal the Commission alleged that the claimant knowingly withheld a declarations of her earnings. The claimant felt that she was not required to declare her earnings until they were actually paid to her. The Board felt that the claimant was confused as to when and what to declare as earnings and they recommended that the Commission reduce the penalty. But despite all that, the Board dismissed all three issues that were up for appeal. The Umpire felt that Board's decision to dismiss the second and third issues was inconsistent with their findings. By saying that claimant was confused and did not know when and what to declare is the same as saying that the claimant did not knowingly and deliberately fail to declare her earnings. This was an error in law on behalf of the Board. The penalty appeal was allowed.
Appellant: Janet Shibley
CUB 60080Umipre Decision - The claimant was appealing the decision from the Commission that he was not eligible for benefits because he was operating a business as of March 14, 1994 and therefore was not available for work and was not unemployed. This resulted in an overpayment of $10,250.00 as well as a penalty of $5,535.00 for knowingly giving false and misleading information in regards to his claim. At the start of this hearing the Commission stated that it was willing to consider reducing the penalty but the claimant stated that he wished for the appeal to be allowed because he had not knowingly provided false information. He felt that was still looking for work and believed that what he was doing did not fall under the term of work because he was not receiving earnings. In its second decision to have this appeal heard by a new Board (A-686-99Umipre Decision), the Federal Court of Appeal stated that it had be shown that the claimant subjectively knew that the information was false. Throughout this appeal the claimant has always maintained that he thought what we was doing did not constitute as work and that his lack of information led him to misunderstand the questions he was asked can lead to the conclusion that he did not know that he was providing false information. The appeal was allowed.
Appellant: David Moretto
CUB 60346Umipre Decision - The claimant had filed her report using Teledec, and the questions that she answered were used as evidence. There is no question though that relates to whether the claimant was absent from Canada. The Umpire said she made no false or misleading representation regarding her absence. The claimant felt that because she was checking her answering machine she was available for work. The Board did not examine and weigh this explanation. This explanation removed any intent by the claimant to deliberately falsify or mislead when she answered the questions. The appeal was allowed.
Appellant: Marilyn Baptist
CUB 61655Umipre Decision - The claimant is not contesting the issue of the overpayment but is contesting the issue that he provided false information. When the claimant appeared before the Board he restated that he had attempted to faithfully report as required and that his failure to report all his earnings were due to an honest mistake and that he had been on benefits before and had always reported all his work and earnings to the best of his ability. There is no explanation as to why the Board failed to reject the claimant's explanations and submissions. To support a finding that a penalty or a warning letter and notice of violation are warranted for knowingly giving false or misleading statements, it is not enough to show that the representations were false or misleading, it must be shown that the claimant knew they were false or misleading, see Mootoo (A-438-02Umipre Decision). The claimant's appeal was allowed.
Appellant: Kirk Sweezey
CUB 69104Umipre Decision -The claimant had worked for a Photography & Wedding Shop the week commencing February 27, 2005 while in receipt of benefits. The employer indicated that for that week she had earned $546.00. When contacted by the Commission the employer stated that the claimant had advised them that her claim was only up to February 28, 2005 and that she was not aware that she was paid benefits beyond that date. Based on this information, the Commission determined that the claimant made a misrepresentation by providing false or misleading information when she failed to declare her work or earnings. The Umpire found that the mere fact that a legally false statement was made does not necessarily mean that it was made knowingly: there must be subjective knowledge of falsity. The appeal was allowed.
CUB 51422Umipre Decision - The issue at hand is whether or not the claimant knowingly made 23 false or misleading statements, because of the 23 statements a penalty of $10,051.00 was imposed. The Umpire is this case is quoted:
" I am now asked to set aside this decision on the sole ground that the false and misleading statements alleged by the Commission are based on the fact the question asked of the claimant in each report card relating to the relationship to the employer by blood, marriage or adoption was misleading because it dealt with a company, and that one cannot be related by blood, marriage or adoption to a company. Having regard to the decisions of the Federal Court of Appeal in the Insalaco matters (A-546-99Umipre Decision and A-547-99Umipre Decision), the decision of the Board is quashed and the appeal is allowed."
The appeal was allowed.
Appellant: Enzo Mizzi
CUB 59045Umipre Decision - He had accumulated 920 hours, but the Commission informed him that he needed 1,138 hours because there was a minor violation on his file. The relative complexity of this issue depends on the assessment of facts. The facts are as follows:
" The claimant was outside of Canada from February 22, 1997, during which period he received Employment Insurance benefits. A few months later, he was notified that he had to repay the Commission the benefits he had received while outside the country. He was also notified of a $165.00 penalty."
In the opinion of Umpire Marin, the date is relevant and that the notice of the penalty is to be added to the docket. The notice of the penalty was dated August 7,1997. On March 9, 1998 the Commission claims to have sent out a notice of minor violation. It goes without saying that this notice has its consequences, according to the Act, these consequences have repercussions for five years. This means that if the violation is upheld and the notice was issued on March 9, 1998, it will remain into effect until March 9, 2003. But, if the Commission has issued the notice of violation at the same time as the penalty, August 7, 1997, then the violation period would end on August 7, 2002. Therefore, the repercussions of this violation would not affect the instant case. Section 7.1(4) states how violations are to be issued, and in the opinion of the Umpire, after carefully reading this section, he states that "the violation cannot be justified except as a consequence of an act or omission." It is meant to be seen that a notice of violation should be issued the same day as a notice of penalty, or at least dated the same day. It cannot be argued that the Commission can issue a notice of violation almost six months after the fact and indicate a date on it that is not the date of the alleged act. This violation can relate only to the penalty of August 7, 1997. This was an error of law, not an error of a Commission employee. The matter was referred back to the Commission with the instruction that it assumes that notice of violation could not be dated earlier that the notice of penalty. The appeal was allowed.
Appellant: Joseph Bourque
CUB 34603AUmipre Decision - The claimant amply demonstrated that he was entitled to benefits while residing in the United States. He could therefore not knowingly have made false and misleading statements when he was of the opinion that he was entitled to benefits. For these reasons the penalty for false and misleading statements is revoked. The appeal was allowed.
Appellant: Gerhard Barca
CUB 54487Umipre Decision - The claimant had established a claim for benefits effective August 16, 1993. The Commission was informed that during the benefit period, April 21, 1995 to May 2, 1995, the claimant was out of Canada and had failed to report his absence claiming that he was available for work during the entire claim. The Commission found the claimant was outside of Canada for personal reasons and didn't qualify for benefits under subsection 32(b) of the Act and didn't fall within the exceptions of section 34 of the Regulations. The Commission felt that the claimant had knowingly made false and misleading statements and because of this they imposed a penalty. The claimant claimed that he remained available for work, he was checking his voice mail daily and was ready to return Canada if work had come up.. In regards to knowingly making false and misleading statements the appeal was allowed.
Appellant: Edouard R. Lamoureux
CUB 55607Umipre Decision - The claimant is appealing the decision that she knowingly made false and misleading statements as to her availability while she was out of the country. Due to this the claimant was required to pay back the amount of $835.00 and was assessed a penalty of $522.00. The Commission concedes the issue of the penalty. The claimant agrees that she was out of the country visiting her sick sister-in-law. A portion of the time that she was out of the country would have been her initial two week waiting period, for which she would have not received benefits. It is clear that benefits received for the period while the claimant was out of the country would have to be repaid. The appeal was allowed in part. The penalty was set aside. The amount of the repayment will be recalculated taking into account the fact of the waiting period.
Appellant: Nelly Parra
CUB 55782Umipre Decision - While the claimant was receiving benefits in 1995, she went to Florida. In the claimant's letter of appeal to the Board she wrote:
" Yes, I was ready, willing and capable of working each day, I was working for a temporary agency and had just finished a contract assignment. Yes, I was out of the country, but the agency did not have another job for me. No, I was not looking for work because I have been steadily employed with this agency doing contract work for several years. So, if you are accusing me of lying, I'm sorry but I do not intentionally want to deceive or cheat anyone. I think my good intentions and individual circumstances deserve consideration."
The company that the claimant worked for did not have day to day jobs but they are usually planned well in advance. At the time in question the agency had no work for her so she went to Florida. While in Florida she checked her answering machine daily and was ready to return if a contract came up. The Commission felt that because she was out of Canada she was not available for work. The Umpire found that the claimant's explanation was a reasonable one and there is no issue of credibility. The appeal was allowed regarding the penalty.
Appellant: Jenine Condotta
CUB 55928Umipre Decision - The claimant argues that she was not receiving benefits while she was outside of Canada and that she did not knowingly make false and misleading statements. The claimant states that she was unaware that benefits are not available to a person who is outside of Canada even though she was given the usual form with respect to her rights and obligations, in which there is a notation about reporting absences from Canada. The Board did not rely on the claimant's testimony but they noted in the Exhibits that she was leaving for Greece to be a credible statement. The decision in regards to the overpayment stays the same, in regards to the false and misleading statements the appeal was allowed.
Appellant: Anna Maria Lo Faro
CUB 56013Umipre Decision - The claimant is a helicopter pilot who went to Las Vegas for a helicopter convention to look for work. He said that he didn't tell the Commission that he was out of Canada because he was looking for work. He said that he was checking his calls daily and could have been back in a couple hours if employment had come up. The Board was required to give reasons as to why they felt he made false and misleading statements, it started with them saying that it had no reason to disbelieve him when his purpose was job seeking. They also went on to say:
"The penalty has been assessed because he gave an incorrect answer when he failed to report his absence from Canada. It has been stated many times that ignorance of the law is no excuse."
This is in error, just because the claimant gave an incorrect answer does not mean that he made it knowingly. The appeal was allowed.
Appellant: Darrell Roney
CUB 56026Umipre Decision - The claimant is appealing the decision that she knowingly made false or misleading statements by failing to report that she was outside Canada while receiving benefits. The Board, when giving their judgement, stated the claimant's explanation was that she was inexperienced and she thought that she could go on vacation outside of Canada because she was still in the waiting period and was not yet receiving benefits. The Board seemed to feel that because she failed to report her absence, that the failure to report was automatically false and misleading. This was an error on their part. The appeal in regards to the penalty was allowed
Appellant: Kim Grant
CUB 57138Umipre Decision - The claimant submits that he was outside the country looking for work and believed that he was shortly going to be recalled to work. He goes on to state that he checked his messages daily to see if he was recalled to work and therefore would have returned to Canada immediately. The Umpire found that the Board had made a "fundamental flaw" in their decision that the claimant knowingly made false and misleading statements. The Umpire goes on further:
The Umpire acknowledges that the claimant was excepting a recall and did make arrangements to be notified if he was recalled therefore the evidence could support that the claimant did not knowingly make false and misleading statements. The appeal was allowed on the issue of knowingly making a false and misleading declaration.
Appellant: Terry Flanigan
CUB 58194Umipre Decision - The claimant had filled out the reporting cards but he did not disclose that he was absent from Canada. These reporting cards also stated that the claimant was available for work while he was outside of the country for the period of February 13 to March 7, 1997. The claimant stated that he had made an innocent mistake and that he had no intention of falsify his cards or mislead the Commission. In the Umpire's decision he felt that the claimant's actions and explanations were reasonable and that the claimant was credible. The appeal was allowed. Appellant: Doug Robertson
CUB 59063Umipre Decision - The claimant is appealing four rulings from the Commission in relation to two absences from Canada while receiving benefits. As well, there were allegations of false and misleading statements in regards to these absences. The two periods in question are October 13 to 30, 1995 and the second being March 28 to 29, 1996. For each of these, the Commission alleged that false and misleading statements were made and a penalty was imposed. In relation to the ruling that the claimant had knowingly made false and misleading statements, the Umpire is not satisfied that the evidence meets the requirements of the Federal Court of Appeal decisions in Gates (A-600-94Umipre Decision), Morin (A-453-95Umipre Decision) and Purcell (A-694-94Umipre Decision). Umpire Marin stated that "an allegation that the claimant's rights and obligations were brought to her attention is not accorded much weight. The purported notice is unsigned and not initialled, and cannot be given full weight under the best evidence rule. I therefore cannot support the false and misleading statements alleged." The appeal in regards to the false and misleading statements from her first absence from Canada is allowed. The appeal in relation to both issues relating to her second absence was allowed. Appellant: Joyce Feinberg
CUB 59272Umipre Decision - When the Commission revived the appeal in March 2002 it referred in a letter to the claimant, to its decision to "impose a penalty for knowingly making false or misleading statements when he failed to declare that he was absent from Canada." Neither the Act or the Regulations impose an obligation on claimants to report absences from Canada. A document that is given to claimants informing them of their rights and obligations does tell them that they should report immediately any absences from Canada. While it is advisable for claimants to report such absences, failure to do so does not attract a penalty under section 38 of the Act. With respect to the penalty issue, The appeal was allowed.
Appellant: David Jones
CUB 59385Umipre Decision - The claimant had stated that throughout the period in question that he was available for work and he was continuing his search for work but he knew that there was little chance for employment because it was the slow season. The claimant supplied a list of employers that he had spoken to about employment. The claimant's explanations could support the finding that he did not knowingly give false or misleading statements but ignorance of the law cannot excuse someone from meeting its requirements. However this principle has not been held to extend to ignorance of a procedural policy established by the Commission as the necessity to report absences from Canada unless the Commission can establish that the claimant was aware of this obligation. This is not the case here as the report cards do not ask the question in regard to absences from Canada. The claimant had provided a credible explanation for his failure to report his absence, there was no proof that he was expected to report his absence. The appeal was allowed in regards to the imposition of the penalty. Appellant: Bagicha Gidda
CUB 59900Umipre Decision - The claimant stated that no one told her that she had to report her absence and that all she was told was that she was to look for and be available for work, which she insisted that she had even while she was out of the country. The claimant had provided an explanation as to her absence and the Board could not reject this without explaining why. To not give an explanation is a contradiction to the Act and subsection 114(3).(Also see Parks (A-321-97Umipre Decision) and Mootoo (A-438 02Umipre Decision)). The claimant had provided a good explanation as to her failure to declare her absence and this supports a finding that she did not knowingly provided false statements to the Commission. The appeal was allowed.
Appellant: Gayle Brown
CUB 59903Umipre Decision - It was determined that the claimant had failed to prover her availability during the period of her absence and a disentitlement was imposed for the above mentioned benefit period. It was also determined that the claimant had knowingly made a false or misleading statement by failing to report her absence and a penalty of $662.00 was imposed. The claimant stated that she did not report her absence from Canada because the purpose of her trip was to try and find employment. She added that her husband had taken time off his job to babysit while she had gone to the USA looking for work. The sole purpose of this trip was to find employment and she denied that she had knowingly made false declarations. The claimant's husband, also acting as her representative, presented a list of prospective employers that the claimant had visited. He stated that he had offered this list to the Board but that they had refused to accept it stating that the Board did not need that evidence. It was not sufficient for the Board to state that the claimant knew she was out of the country and had therefore made a false declaration by failing to report her absence. The claimant provided a good explanation as to her failure to declare her absence and that this supports the finding that she did not make false or misleading statements to the Commission. The appeal was allowed.
Appellant: Lori Stein
CUB 59978Umipre Decision - The claimant is not contesting the overpayment but she insists that she did not knowingly make a false statement, because she was not aware that she had to report her absence. Before the Board, the claimant restated that she did not know that she had to report her absence from Canada, she also acknowledged that she received her Rights and Obligations document three months before her trip and stated that she had forgotten that she had to report her absence. She felt that she had left herself available because she had done searches for work and was regularly checking her phone messages and that she would have returned to Canada if an employment opportunity had come available. The claimant repeatedly provided an explanation for her failure to report. The Umpire felt that the claimant had provided a good explanation for her failure to declare her absence and that this supported a finding that she had not knowingly provided false declarations to the Commission. The appeal was allowed.
Appellant: Vera Filice
CUB 60078Umipre Decision - The claimant stated that she was not aware that she had to report her absence while she was outside of Canada, she felt that she met the requirements of availability, as she had secured employment which she would start as soon as she returned and that she had made arrangements to be contacted should another job come available. This decision falls short of the claimant knowing that she had knowingly provided false or misleading information. The Board has every right to reject the claimant's explanations but they must explain why they did and put it in writing. The Board failed to do this and in turn did not meet the requirements of subsection 114(3) of the EI Act. As for the issue of the claimant's availability, she stated why she thought that she was available. Umpire Goulard stated that in order to support a finding that a penalty or a warning letter and notice of violation are warranted for knowingly giving false or misleading statements, it is not enough to show that the representations were false and misleading, it must be shown that the claimant knew they were false and misleading. See Mootoo A-438-02Umipre Decision. The Board erred in their decision. The appeal was allowed.
Appellant: Christie Reid
CUB 54712Umipre Decision - The claimant stated that though he was out of Canada, he still remained available for work and that he was unaware that he had to report his absence from Canada. The claimant also stated that he was collecting benefits because he was laid off from his employment of 35 years because there was no work for him and that he was waiting for a recall. According to the Umpire, this does not prove that he was available for working under the meaning of the Act. But on the other hand, this does not show that he knowingly made false and misleading statements. The Umpire also stated that because the claimant was expecting a recall and that he used his time off to take a vacation but that if a recall was brought forth he was willing to come back from his vacation to work. The Board could not ignore this. For these reasons the appeal is allowed.
Appellant: Ronald A. Matt
CUB 55045Umipre Decision - The claimant does not argue the fact that he was outside of Canada during his benefit period but he does challenge the word "knowingly." He states that he never considered false or misleading statements in regards to his availability. In the letter that the claimant wrote to the Commission's investigator he wrote that there was no work for him and that he was on the recall list and available for work anytime. He also stated that before he left he inquired verbally whether replacements were needed and he was told no, so he proceed with his trip. He left two phone numbers of where he could be reached if the employer had work for him and that he could be back at twenty four hours notice. In the claimant's view this letter proved justification in regards to his availability. The Umpire wrote:
" In deciding whether statements are false or dishonest, the jurisprudence consistently affirms that the Commission has to establish a degree of probability, rather than prove beyond reasonable doubt, that the claimant has made a declaration of fact that he or she knew to be false. As was decided by the Federal Court of Appeal in Gates (A-600-94Umipre Decision) and Purcell (A-694-94Umipre Decision), once the evidence shows that the claimant has made an erroneous answer to one or more very straightforward questions on report cards, as is the case here, the burden of proof shifts, and the claimant is required to show why he gave inaccurate or erroneous answers."
The Commission and the Board failed to address whether the claimant knew subjectively that his answers were wrong. The appeal is allowed.
Appellant: Jacques Poulin
CUB 55208Umipre Decision - In April 1995, the claimant was taking an HRDC sponsored course. During this time he went a trip out of Canada from April 29 to May 6. When completed his bi-weekly report cards for April 30 and May 7 he stated that he had spent 25 hours in each week at the training course. He also answered that he was ready, willing and capable of work. In the letter the Commission sent out imposing the penalty they didn't identify the allegedly false statement, only in its representation to the Board did they state that the claimant knowingly made a false and misleading statement when he failed to put on his reporting card that he was out of the country and was not in training for the week of May 1-6. The Board found that he answered "yes" to the question "Did you attend a school or training course during the period of this report?" The Umpire felt that the finding by the Board was in error because the report covered two weeks and the claimant attended the course for one of those weeks. The Board also found that the claimant answered incorrectly to the question about his availability to work, even though he was out of the country. The Board failed to consider the explanation by the claimant and they also failed to make a finding as to whether the claimant "knowingly" gave a false answer. At the hearing the claimant pointed out that during the course he was also unable to be ready, willing and capable of work. The claimant's answers were credible and reasonable. He made up the time for his course before going on his trip. While he was not available for work during his time outside of Canada he was also not available for work during his training course. For these reason the appeal was allowed and the penalty was set aside.
Clmt: Carmen Jewkes
CUB 56004Umipre Decision - On her reporting card the claimant answered "Yes" to the question "Were you ready, willing and capable of working each day?" The Commission felt that the claimant made false and misleading statements when she answered yes and when she failed to report she was out of Canada. The claimant said that she took her correspondence course with her to Mexico. In absence of a reasonable explanation it must be presumed that when one is out of Canada, one is not available for work that a claimant who is out of Canada but says she is ready, willing and capable of working makes a false statement. The evidence shows that she made a false and misleading statement but it does not show that she made it knowingly. The Commission feels that the penalty should be reduced by half to $221.00. The appeal was allowed to that extent.
Appellant: Lynnda Millward
CUB 56010Umipre Decision - The claimant agreed to repay the benefits that he received but is appealing the penalty and the false and misleading statement. The Board dismissed the claimant's appeal by stating:
" The Board holds that the appellant knew or should have known that he had an obligation to inform the Commission of his absence from Canada. His failure to comply with his obligation to report his absence compels the Board to uphold the disentitlement imposed on him by the Commission."
The Umpire feels that the Board erred in law and it applied the wrong test. The test is whether the claimant knew the statement was false and misleading when they made the statement not what the claimant should have known relative to reporting he was out of the country. The appeal was allowed in regards to the false and misleading statements and the penalty.
Appellant: Dennis Manika
CUB 59666Umipre Decision - In regards to the availability issue, the claimant stated that she was available for work because she regularly kept in touch with her former employer, other employers, advertisements and relatives through the phone or by faxing resumes to jobs available or to see if she had received any job offers. The claimant also stated that when her former employer sent her a notice of recall, she promptly returned to work on May 8, 1995. Umpire Stevenson allowed the appeal on the issue of availability because the claimant gave the an explanation that she was ready and willing to work. As for failing to inform the Commission of her absence from Canada the Umpire stated CUB 55688AUmipre Decision, which states:
Neither the Act nor the Regulations impose an obligation on claimants to report absences from Canada. A document given to claimants informing them of their rights and obligations does tell them that it is important for them to report any absence from their areas of residence and any absence from Canada. While it is advisable for claimants to report such absences, failure to do so did not attract a penalty under section 33 of the Unemployment Insurance Act and does not attract a penalty under section 38 of the Employment Insurance Act.
The Board erred in law in finding that the claimant failed to reveal her absence from Canada constituted making a false statement. The appeal was allowed in regards to availability.
Appellant: Mela Latchana
CUB 65183Umipre Decision - The claimant had travelled to the United States during the material time to conduct a job search and to find a house to live in with his future wife. The Board of Referees dismissed the claimant's appeal stating that the appellant failed to provide the Commission with specific dates of employer contacts, the results of each contact, and proof of his legal authorization to work in the United States. The Umpire stated that the claimant's explanation with respect to not being able to provide specific dates was very plausible given that during his brief absence from Canada as he contacted nineteen prospective employers. The appeal was allowed.
Appellant: Dallas Lasky
CUB 67186Umipre Decision - The Commission determined that the claimant was not entitled to benefits because he was outside of Canada. This decision resulted in an overpayment of benefits in the amount of $1,817.00. In addition the Commission was of the view that the claimant made false statements because he was not available for work during this period in question because he was outside of Canada on vacation. It therefore imposed a penalty of $826.00 and a notice of serious violation. The Board of Referees found that the claimant did not knowingly make false statements. In the CUB 59272Umipre Decision it is stated that: "Neither the Act nor the Employment Insurance Regulations impose an obligation on claimants to report absences from Canada. A document given to the claimants informing them of their rights and obligations does tell them that they should immediately report any absence from Canada. The Umpire pointed out that it is advisable for claimants to report such absences, failure to do so does not attract a penalty under section 38 of the Act." The Commission maintains that although the claimant argued that he misunderstood the way the system worked, he admitted that he had a good understanding of the English language and that he understood his rights and responsibilities. The Umpire found that before a penalty can be imposed it must be determined that the claimant acted in bad faith, or in other words, dishonesty. It is possible for honest confusion to arise. The appeal was dismissed.
CUB 64895Umipre Decision - The claimant applied for and received maternity and parental benefits. Under section 26.1 of the Employment Insurance Regulations a claimant receiving such benefits is not required to make periodic claims, i.e. bi-weekly reports. The claimant had earnings during three claim periods and did not report the earnings to the Commission. The Umpire found that the legal issue is not whether the claimant was in breach of the undertakings she gave on the Exemption Form, but rather whether those breaches constituted an act or omission falling within the scope of subsection 38(1) of the Act. The Umpire stated that the claimant's failures to inform the Human Resource Centre did not constitute the "equal" of making of false or misleading representations and therefore, did not fall under the penalty provision of Section 38 of the Act. The appeal was allowed and the penalty and the notice of violation were set aside.
Appellant: Tracy Joan Gilbert
CUB 71535Umipre Decision - The claimant was not contesting the fact that she had received earnings while receiving EI benefits, but that she has done so unknowingly. At the time of application for maternity benefits, the claimant stated that she would have an early return to work date despite saying she would be taking the full 15 weeks of maternity benefits and 35 weeks of parental benefits. The claimant thought because she had stated a specific return to work date her benefits would be stopped at that time. As well she did not notice that the money was being deposited as her husband managed the finances. Due to the circumstances surrounding the case, there is enough evidence to support an explanation of not knowingly providing false statements. The appeal was allowed.
CUB 56556Umipre Decision - The claimant is appealing the decision that he knowingly made false and misleading statements in regards to reporting to the Commission that he was outside of Canada. On the issue of knowingly making false or misleading statements, the Umpire is quoted:
" Ignorance of the law cannot excuse someone from meeting its requirements. This principle has not been held to extend to ignorance of a procedural policy established by the Commission as to the necessity to report absence if the claimant is not aware of such policy, which is the case here."
The appeal was allowed.
Appellant: Dave Hall
CUB 28068Umipre Decision/FC A-453-95Umipre Decision - On April 1, 1996 the Federal Court allowed the claimant's appeal and decided that the Boards of Referees and Umpires have jurisdiction to amend the amount of the penalty imposed when they are of the opinion that the Commission did not exercise its judicial discretion. The Umpire said "Consequently, I have reviewed this case in full and am satisfied that extenuating circumstances existed which would justify a reduction in the penalty, that is, the claimant's health and...the memory losses caused by the morphine... prescribed to her." The penalty levied by the Commission was reduced by 50%. The Federal Court of Appeal decision stated in regards to reductions of penalties because it was determined that the Commission had failed to exercise its judicial discretion: "I therefore find that when the board of referees and the umpire have jurisdiction and are of the opinion that intervention is warranted, they have the power to make the decision that the Commission should have made, regardless of whether the decision is characterized as discretionary".
Appellant: Line Morin
CUB 28068AUmipre Decision/A-681-96Umipre Decision - In an initial judgement on the facts of this case this court clearly stated that an Umpire is entitled to vary the amount of a penalty "if he or she concludes that the Commission did not exercise its discretion judicially...According to, the Commission's own mitigating factors must be taken into account in exercising its discretion as to the penalty to impose on a claimant:
Mitigating circumstances are those which lessen the seriousness of the offence due to unusual or out of the ordinary events existing at the time of the offence. Such circumstances will warrant a penalty lower than that which would be imposed for the basic act of making false statements.
The Commission followed this policy in the case at bar, it unduly limited its discretion to all factors existing before or at the time a penalty is imposed that may affect its appropriateness are relevant to determining its amount.
CUB 29211Umipre Decision/A-708-95Umipre Decision - The question remains: Does the Board of Referee's and the Umpire have the power to intervene in respect to a decision made by the Commission in the exercise of discretion. The Federal Court again confirms the right of a Board or an Umpire to vary the amount of penalty for a false or misleading statement based on their review of the Commission properly exercising its discretion as to the amount of penalty levied on the claimant.
CUB 33564Umipre Decision/A-464-96Umipre Decision - The applicant knowingly made eighteen false and misleading statements and the Commission imposed a penalty amounting to eighteen times the benefit rate. The Board of Referees reduced this penalty to a token amount of $18 in relation to the claimant's "precarious situation" and relying on the decision in CUB 21472Umipre Decision. The umpire subsequently allowed the Commission's appeal stating that the Board of Referees had no jurisdiction to alter the penalty amount. The Federal Court, however, found that the Umpire's decision could not stand based on the Morin v. Employment and Immigration Commission(1996), 134 D.L.R. (4th 724 (F.C.A.), and Dunham v. Attorney General of Canada (September 27, 1996), A-857-95Umipre Decision and A-708-95Umipre Decision, FCA, not reported. The matter will be referred back to the Umpire to determine based on the claimants financial situation and such other factors as he considers relevant. The Board of Referees should only cancel a penalty or reduce it to a token amount in exceptional circumstances.
Appellant: Isabella Mucciarone
CUB 51150Umipre Decision - She told the Board that she filled in her cards as instructed by her boss. The cards were not filled in correctly. The system she used under the instruction of manager was to put in a greater number of hours per week than was actually worked. The issue that she was influenced by her employer isn't challenged, she was concerned that if she didn't follow along she may lose her job, this was not a good reason to continue. In the Umpire's opinion that is a factor in which she can explain why she did what she did. The Umpire believed that the penalty should be reduced by 1/3 to make it $4,600.00. The appeal was allowed for a reduction in the penalty.
Appellant: Linda Fox
CUB 51751Umipre Decision/A-594-01Umipre Decision - The issue at hand is that the Commission found that the claimant, acting on behalf of Renaissance Man Construction, falsified information on two records of employment. The Board concluded that the claimant knowingly put a false reason for separation on both records of employment. The Board found that the Commission was correct in the way they established the amount of the penalty, they did this by taking into account all of the relevant factors. It was for the reasons that the Board dismissed the claimant's appeal. The Umpire found that the Board did not judicially in assessing the penalty they way they did. The claimant breached s. 39(1). Both acts took place in a period of 7 days, due to the short time between the two they should have been considered as one. The penalties imposed under s.39 are similar to ones that would be levied under the criminal statute. Since this was a first offence a penalty of $6,000.00 was more appropriate. The penalties were reduced by 50%.
Appellant: Karen Tryggvason
CUB 55802Umipre Decision - The claimant is not contesting the overpayment but he is appealing the amount of the penalty. He admitted before the Board that he knowingly failed to report his earnings because he needed the money. The Umpire said that
"the Commission erred when determining , as a starting point for the factors to be taken into consideration, that a penalty of 100% should be assessed . If Parliament had wanted a penalty of 100% to be the base penalty and had wanted the starting point for a second offence to be 200% the Act would have indicated this. This is not case here."
The Umpire returned this case to a new Board with the instructions that the Board fulfill their legal role "in ensuring that the Commission exercised its discretion in a judicious manner when it set the amount of penalty". The appeal was returned to a new Board.
Appellant: Guy Simon
CUB 55884Umipre Decision / A-46-03Umipre Decision - The Umpire found that the Board erred when it did not deal with the issue of whether or not the Commission acted properly in fixing the amount of the penalty at $2,144.00 or 100% of the overpayment. Jurisprudence has established that the Board must determine whether the Commission has acted judiciously in fixing the amount of a penalty. The Board, in this case, was silent on the issue. In this case, the only factor that the Commission appears to have taken into consideration is that the claimant knowingly made false and misleading statements, which the Commission felt that she did to defraud. It is well established that an intention like this is not required for the imposition of a penalty, the Commission must only show that the information was knowingly given, they have done this. In determining the amount of the penalty the Commission must base its decision on all the relevant factors, and the Board has to mandate that the Commission has properly exercised its discretion. The Board and the Commission failed to take into account the relevant factors that the claimant is a single mother of three and would be unable to pay the penalty. This constitutes an a error in law. The appeal was allowed.
The decision of the Federal Court was to send the appeal back to the Board of Referees stating:
"it is not apparent that the Board of Referees turned its mind to the "hardship argument" put before it by the respondent. This resulted in a failure to exercise jurisdiction> In our view, therefore, the Board should be required to consider whether or not the respondent's claim of "inability to pay" is a mitigating factor that merits a reduction of the penalty".Appellant: Kathleen Gray
CUB 56006Umipre Decision - The Umpire felt the Commission was in error when it said the imposed penalty is equal to 200%. The maximum is 300% for any act or omission resulting in a penalty. It is the Commission's policy to impose a penalty of 100% for the first penalty, 200% for the second and 300% for the third or subsequent offence. In regards to the alleged first offence the Commission wrote the claimant on March 2, 1998 saying:
"We have reviewed your claim for benefits and have determined that you omitted to furnish information about your absence outside of Canada. We will not penalize you or prosecute you for this offence. However, there could be heavier penalties or prosecution if we discover other omissions or other offences."
In this case, because the claimant did not contest the warning in 1998, the Commission should not have used the 200% for the penalty it imposed in this case. The appeal is allowed and the penalty is reduced to $1,001.00.
Appellant: Jamil Younes
CUB 57651Umipre Decision - The claimant's reason was that of a mistaken understanding rather than knowingly failing to declare earnings. The Board understood this reason but rejected the explanation, in a reasoned and reasonable way. The Commission on the other hand agreed to a reduction of the penalty from 100% to 75% since there was failure to consider the illness of the claimant in assessing the amount of penalty that should be imposed. Therefore the penalty was reduced to 75% but all other aspects of the appeal were dismissed.
Appellant: James Tyrrell
CUB 58241Umipre Decision - He submitted in his letter of appeal to the Umpire that his personal circumstances should be taken into account in fixing the penalty. The Federal Court has not given any indication as to what should be included in the "relevant factors" that the Commission should be required to consider in fixing the penalty. Umpire Goulard believes that in fixing the amount of a penalty of any significance, it is incumbent on the Commission to take into consideration that claimant's means and his ability to pay, along with other factors such as the money involved, whether it is a first or subsequent infraction and the circumstances in which the false statement was made. The appeal is allowed and returned to a new Board for a redetermination of the appeal, taking into consideration the Umpire's comments concerning the Board's duties in determining whether the Commission has judiciously exercised its discretion in fixing the penalty.
Appellant: Noel Davies
See also CUB 58136Umipre Decision, CUB 58330Umipre Decision and CUB 59127Umipre Decision
CUB 58565Umipre Decision - The Board members stated that they did not have the authority to modify the amount of the penalty. This is an error in law. Umpire Goulard stated:
Echoing Justice LeBel's comments, I believe that in fixing the amount of a penalty of any significance, it is incumbent on the Commission to take into consideration the claimant's means and his ability to pay, along with other factors such as the amount of money involved, whether it is a first or subsequent infraction and the circumstances in which the false statement was made. Keeping in mind the social nature of the Employment Insurance Act, I do not believe that it was the intention of Parliament to encourage the Commission to impose penalties that would put a worker in the conditions described in Justice LeBel's comments.
In regard to who should have the responsibility to inquire in all factors relevant in fixing a penalty, including a claimant's ability to pay, I believe that it should be the Commission. Boards of Referees then have a responsibility, in their role, as mandated by the Federal Court of Appeal, of "protectors of insured persons rights", to assure that the Commission has properly given regard to all significant factors in exercising its discretion in fixing a penalty. If the Board members are not satisfied that this has been done, they should proceed with their own fact finding in this regard or return the matter to the Commission for that purpose."
The appeal was allowed and the matter was returned to a new Board for a redetermination of the appeal taking into consideration the Umpire's comments concerning their duty in determining whether the Commission judiciously exercised its discretion in fixing the penalty.
Appellant: Dennis Bradley
CUB 59378Umipre Decision - The facts in this case were that the claimant's husband was not working, that they had three young children and that her living expenses, after allowing for the child tax benefits, exceeded her income. The claimant's yearly income is $20,200, which is below the poverty line for a family of five. The Federal Court of Appeal decision, Canada (Attorney General) v Benitez, 2003 FCA 181, upheld the decision of the Umpire in CUB 53441Umipre Decision, suggests that the umpire may remove a penalty because of undue hardship. But on the other hand, the Gauley case states that the Board may reduce a penalty to an amount that it considers equal to the circumstances but that it may not reduce the penalty to zero. In this case, the Board erred in law by failing to consider whether the penalty should be reduced. The appeal is allowed and the penalty is reduced to $25.00
Appellant: Seema Rahe Khan
CUB 60924Umipre Decision - An initial claim was established effective June 9, 2002. An investigation conducted by the Employment Insurance Commission disclosed that during her benefit period the claimant was employed by Shirley Thyme Maternity covering the period of July 7, 2002 to December 7, 2002 and earned, within that time, the sum of $10,938.77 whereas for each week during that period the claimant reporting by Teledec gave the answer "no" to the question which sought to determine whether she worked or earned wages throughout the period she was employed. The Commission informed the claimant that it was allocating the earnings against the benefits she received, which created an overpayment of $4,598.00 and that it imposed a penalty of $2,508.00 for having knowingly made false representations. The claimant confirmed before the Board of Referees her obligation to repay the overpaid benefits but she challenged the finding of false representations and the penalty. The Board determined that the false representations were made knowingly and there is ample evidence to support that conclusion. The Umpire found that the penalty should not be unreasonably harsh. Having regard to this, the penalty of $2,508.00 was rescinded and a penalty of $500.00 was substituted in its place.
Appellant: Shabnam Surve
CUB 69046Umipre Decision -Following an investigation, the Commission determined that the claimant had participated in a system that existed at the employer for banking hours. Based on this, the Commission determined the actual number of hours worked by the claimant and his earnings during the qualifying period. They also determined that he did not declare all the earnings which resulted in a total overpayment of $15,058.00. The Commission also imposed a penalty of $1,219.00 for false and misleading information. The Board of Referees dismissed his appeal on the issue of the overpayment but recommended the Commission to consider a write off. The Board allowed the appeal on the issue of the imposition of penalty thus reducing the amount from $1,219.00 to $10.00. Commission appealed this decision arguing that the Board exceeded its jurisdiction by reducing the amount of the penalty. Given the claimant's difficult personal circumstances, the Umpire found that a Board of Referees should reduce the amount of penalty imposed if the claimant presented evidence of circumstances that the penalty should be reduced. The Commission's appeal was dismissed.
CUB 69209Umipre Decision -The claimant failed to declare all his earnings and provided false and misleading information to the Commission. He was imposed a penalty of $4,543.00 which was half of the overpayment of benefits. The Board of Referees found that the claimant was receiving E.I. benefits while earning wages with an employer from May 30, 2004 to October 2004. They also found that he was knowingly providing false information to the Commission throughout all his reporting periods and denied his claim. The claimant before the Umpire stated that he only wanted the notice of violation and the penalty removed. Upon considering all the evidence the Umpire found that the penalty should be reduced from 50% of the overpayment to 25% resulting in a sum of $3,407.00.
CUB 53411Umipre Decision/A-148-02Umipre Decision - The claimant is a single parent who is care for a child who has special needs. The claimant states that it was mainly his requirements for money to care for his child that he made false and misleading statements. At the beginning of this hearing the Commission stated that the had already reduced the penalty by 50%, from $1,550.00 to $750.00. The Umpire finds that even though the penalty has been reduced by 50% he finds that there would still be undue hardship, as the he claimant is working a job that only pays him $10.00 per hour. The Umpire granted the appeal in regards to the penalty and removed it because of the undue hardship it would place on the claimant. This decision was confirmed by the Federal Court.
Appellant: Riccardo Benitez
CUB 51557Umipre Decision - The claimant is appealing the decision that a penalty be imposed with respect to false or misleading statements allegedly knowingly made by a person acting on his behalf while he was incarcerated. It is clear that the claimant's common-law wife, Joan Berg, completed and signed the claimant's name to his ten bi-weekly reporting cards for the weeks of June 30 to November 19, and that she cashed or participated in the negotiation of the cheques or warrants issued for benefits for that period. The main issue is whether Ms. Berg made the statements on the claimant's behalf. Failure on the claimant's part to ensure that the Commission knew he was in jail is not a sound reason for a penalty. False statements made by Ms. Berg on the claimant's behalf does attract a penalty. The Board did make a clear finding of fact on that crucial issue and as the answer turns on credibility, there must be a re-hearing. Appeal allowed but the matter is referred back to a new Board for a re-hearing with the directions to make a finding as to whether or not Ms. Berg acted on behalf of the claimant when submitting the cards with the false statements.
Appellant: Henry Bill
CUB 66078Umipre Decision - The claimant appeals from the decision of a Board of Referees dismissing his appeal against assessments of overpayments of unemployment benefits that resulted when his ex-wife fraudulently made claims in his name. The Board of Referees said that although the claimant's ex-wife may be responsible for fraudulently getting his benefits, he is ultimately responsible. The Board of Referees erred in law in so finding. The Umpire found that a claimant is not liable to repay an overpayment resulting from the fraudulent collection of benefits in his name by his ex-wife, without his knowledge, and which he never received. The appeal was allowed.
Appellant: Morgan G. Perry
CUB 25451Umipre Decision/A-600-94Umipre Decision - There were 3 issues before the Board: that the claimant was not available for work pursuant to ss. 14(a) and 23 Act; was self-employed under the provision of Sections 8 and 10 of the Act; and finally, there were misrepresentations under Section 33 of the Act. The first two issues were abandoned. In respect to the third, the Umpire found that the claimant did not knowingly or intentionally make statements to mislead or misrepresent while the Federal Court of Appeal ordered that the matter return to a Board of Referees.
Appellant: Catherine Gates
CUB 42558Umipre Decision - Claimant was disqualified from benefits for the reason that she was operating a business and further that claimant knowingly made 4 false or misleading statements. The Board said:
"At the hearing, Mr. And Mrs. Brown (Claimant and husband) felt strongly that they had become victims of circumstance. They presented an intelligent, articulate and honest account of a series of misunderstandings that had resulted in incorrect responses to questions regarding work, income and availability. The basic misunderstanding arose when Mrs. Brown presumed that the Commission's advertised encouragement of self-employment meant that her initiatives would affect how she responded to questions on her reporting cards. Unfortunately, she did not initiate questions that would have confirmed or denied her assumptions. The Board finds that Mrs. Brown was employed in her very demanding business start up. The questions on the reporting cards were clearly stated and thus she did make four statements she knew to be false or misleading."
The Umpire indicated that the Board erred in law by failing to arrive at a conclusion based upon its findings instead of basing its conclusion on the clarity of the questions posed by the report cards. The appeal was allowed on the second issue of the penalty imposed.
Appellant: Cindy Brown
CUB 47524Umipre Decision - In its representations to the Board the Commission said the claimant made false or misleading statements when he failed to declare that he was operating his own business. His negative answers to the question "Did you work" were false. During an interview the claimant was asked "Why did you not report on your bi-weekly cards that you worked during these periods?", he answered, "I thought I didn't have to because there wasn't any earnings I was trying to build a company. But, yes I did work...I'd never been on UI before and when I talked to the accountant he said the fact I was devoting myself to this business wouldn't affect me because I wasn't taking a salary from this business". Having regard to the fact that the claimant relied, at least in part, on advice from his accountant the Umpire found that he answered the questions on his cards incorrectly because he honestly believed that "work" implied being paid for such work. See
CUB 18637Umipre Decision. The penalty was set aside.
Appellant: Stuart Cooke
CUB 51160Umipre Decision - The Commission determined that the claimant that the claimant gave 10 false or misleading statements because she continued employment without interruption and participation in the business operation of Crystal Clear Inc. The Umpire is quoted as saying:
" Having reviewed the representations to the Umpire of both the HRDC and the claimant, and having reviewed the record that was before the Board of Referees, I respectfully disagree with the conclusion reached by the majority of the Referees in upholding the penalties imposed by the HRDC. In my opinion the record does not disclose sufficient evidence to support a finding that the HRDC met the burden of proof required for the penalties to be imposed. It was necessary to show that not only that the claimant made false and misleading statements, or failed to provide required information, in this case about her services to the company during periods when she claimed to be unemployed, in 1995 and 1996, but that she knowingly did so. Her claims were disallowed in 1998, with retroactive effect, on the basis that as an officer of the company she continued her employment and her participation in the company's work during the benefit periods in question".
The fact that the claimant continued to sign cheques and corporate documents as an officer of the company, this does not warrant a finding that her work was any different that in 1993. Work that was so minor in extent that it wouldn't normally be seen as a means of livelihood. The belief that she didn't work during this time was not unreasonable because she was not paid and did only miscellaneous tasks for the company. The appeal was allowed.
Appellant: Susie Doucet
CUB 51548Umipre Decision - At the hearing the Commission suggested that the claimant falsely answered that he was not self-employed, the Commission cannot shift its ground as a case moves up through the appeal process. In any event the claimant wasn't self employed he was employed by Owl Head Industries Ltd. The Umpire agreed with the approach taken in CUB 45241Umipre Decision, where Umpire Salhany said:
"[The] Question [Are you involved in a business relationship with your employer?] is ambiguous. It is true [the claimant] was involved in a business relationship with the corporation because he was a 16 percent owner. At the same time, if he regarded himself as an employee of the corporation, then he would not have a business relationship."
The same principle applies here in regards to the question about whether the claimant is a partner or proprietor. His answer was true. As the claimant's counsel pointed out, a proprietor is the sole owner of an unincorporated business and a partner is one of two or more persons doing business as a partnership, normally unincorporated. Neither of these terms applies to the claimant, a shareholder in a corporation. The appeal was allowed.
Appellant: Daniel Colton
CUB 53138Umipre Decision -The Board decided that the claimant had made false or misleading statements because she had answered no to the question of whether she was self employed or engaged in the operation of a business. This was considered false because she is the owner of a business. The Umpire in this case is quoted as saying:
"I find that this does not constitute a finding that the claimant made false or misleading statements. The fact that she is the owner of the business does not necessarily mean that she knowingly made false statements regarding her employment and her earnings. The claimant had told the Board that she had incorporated the catering business and that she never drew a salary therefrom. She was under the impression that she was not self - employed as her ownership was through the shares of the company and that she remained available for fulltime work elsewhere. She always returned to her employment at the Sault College in the fall."
The claimant stated that she had inquired at the Commission and had been told that as she was operating through an incorporated company, this did not necessarily mean that it constituted self-employment and that she would not have to declare on her cards. The claimant therefore did not make false or misleading statements. The appeal was allowed.
Appellant: Anne Marie Roberts
CUB 55495Umipre Decision - In regards to the penalty issue the Board dismissed the appeal because they found that the claimant had knowingly omitted to furnish information. In the penalty letter the Commission sent out they did not identify the occasions on which the claimant allegedly omitted to provide information. In this case the penalty cannot stand. The Umpire is quoted as saying:
"...Taking the penalty letter at face value I conclude the penalty was imposed for an offence or omission unknown to the law. A penalized claimant is entitled to know the precise acts or omissions for which the penalty is being imposed and the Commission cannot shift its ground, or attempt to cover up its own mistakes, by asserting a totally different case when the claimant appeals to the Board of Referees. I refer to my decisions in CUBs 43466Umipre Decision,47213Umipre Decision and 48287Umipre Decision."
In respect to penalty and notice of violation the appeals were allowed Clmt: Elaine Stewart
CUB 59849Umipre Decision - The facts in this case were not disputed and were summarized by the Board as follows:
" The claimant admitted to the Board that he had made false statements, but he said he had not done so knowingly. He admitted answering "No" to the question: "Are you self-employed?" He said he had never been informed of the procedure to follow for making his reports once a project had been accepted by the CLD. He said he answered "No" because he thought that the fact that he had not received wages justified answering "No". He also found it strange that there had been no communication between the CLD and the Commission. So when he received his benefits, he thought he was entitled to them. He said he now realized that the benefits should have stopped once the project was operating. He believed that the CLD and the Commission exchanged information...
The Board concludes that the Commission did not prove that the claimant knowingly made false statements. The Board bases its decision on the following points. The jurisprudence states that the Commission must prove that the claimant not only made a false statement, but that he did so knowingly. Merely providing the Commission with false and misleading information does not warrant imposing a penalty (Moretto (A-667-96Umipre Decision)). To meet the "knowingly" requirement, the jurisprudence states that the statement must have been made in full knowledge of the facts, deliberately or intentionally."
In its appeal, the Commission argued that the Board had erred in law and in fact when they decided that the claimant did not knowingly provide false or misleading information. In this case, the Board accepted the claimant's testimony. The appeal was dismissed.
CUB 61113Umipre Decision - She had indicated that if there had been any profits at the conclusion of the year she would have reported them at that time and because she was not making any money from the business her involvement would not have to be reported. To support a finding that a penalty is warranted for knowingly giving false and misleading statements, it is not enough to show that the statements are false and misleading, it must be shown that the claimant knew they were false and misleading, see Mootoo (A-438-02Judgment Of The Federal Court Of Appeal). The appeal on the penalty was allowed.
Appellant: Cathleen Blue
CUB: 65618Umipre Decision - According to the evidence from the Commission the claimant was preparing to organize his business, making him unavailable for work. The claimant admits he was operating a business. He did not consider himself self-employed until his business became profitable and could pay him a salary. When that occurred, he took himself off benefits. The board approved a penalty notwithstanding its apparent belief that the claimant did not make the false statements knowingly. The appeal with respect to the imposition of a penalty was allowed.
Appellant: Chris Lavalley
CUB: 65731Umipre Decision - The allocation of undeclared earnings resulted in an overpayment of $965.00 and a notice of violation for failing to report work or earnings. The claimant did not contest the evidence as to the earnings made by his company. He submitted he had been told by a Commission agent that as long as his business was not his main source of income, he was not drawing a pay cheque from his business, his employment insurance benefits would not be affected. He added that he had not taken salaries from his business and that he could not ascertain what profits he would realize from the business until the year end. The claimant had provided an extensive explanation for his failure to report all his earnings. This created a significant doubt that the claimant had the subjective knowledge required to meet the test for knowingly providing false information. The appeal was allowed.
Appellant: John Hearn
CUB 66767Umipre Decision - The Commission declared the claimant disentitled to Employment Insurance benefits for four periods. The present decision applies to three of those episodes: one effective September 23, 2001, August 25, 2002 and September 14, 2003 on the ground that the claimant could not be considered unemployed since he was operating a business. In each case, the Commission imposed penalties and issued appropriate notices of violation. The Board of Referees found in favor of the Commission and disallowed the claimant's appeal. The Umpire found that the claimant spent no time during a normal working week on his business, and when he did spend time, it was only on Friday evenings, Saturdays and Sundays. The Umpire concluded that the claimant did not operate a company, he therefore made no false or misleading statements in answering no to the question: "did you work?" and no to the question: "are you engaged in the operation of a business?", with the result that the penalties imposed cannot be upheld and the notice of violation should not have been issued. The appeal was allowed.
Appellant: Carol Boivin
CUB 77643Umipre Decision - A benefit period was established for the claimant on April 13, 2008. After losing his employment the claimant became a shareholder in a business. The first year showed a deficit of $65,000. For this reason the claimant reported he was not self employed and that he had not been paid for any work. The claimant only owned 33% of the company, was very limited in the activities of the business, and did not consider it a means of livelihood. Since he only worked 6 hours a week for the business the Board considered him to be unemployed. The information in the docket determined the claimants willingness to seek full time employment with various businesses. The claimant could not support himself on this new business, so his act of omission was not purposefully done. The appeal was dismissed.
CUB 53229Umipre Decision - The claimant admitted that he was in training during his qualifying period, he never tried to hid that. The Umpire decided to remove the decision of the Board in regards to the false and misleading statements. The reason for this was that the claimant stated:
" My intention was not to hide that I was taking courses but rather to quickly finish my training so that I could stop employment insurance faster."
The Board's decision on this issue was incomplete. The principles were clearly stated in the Federal Court of Appeal decision in Gates (A-600-94Judgment Of The Federal Court Of Appeal). The Commission has to prove the burden of proof, they can acquit themselves by proving that the claimant signed the cards with the false and misleading statements. In the case at hand the burden of proof was established, the Board never considered the claimant's explanation of what happened. The appeal was allowed.
Appellant: Patrick Cusson