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    II. Principles of Law

    (e) Erroneous Finding of Fact

    Where a decision of a Board of Referees is challenged because it was based on erroneous findings of fact, the Umpire's review is limited to considering and determining whether the view of the facts taken by the Board was reasonably open to it based on the evidence before it.

    In other words, the test is whether there was any evidence in the record upon which the Board could have found as it did without error in principle. This is so even if the Umpire might have reached a different conclusion.

    An Umpire is not entitled to reach a different conclusion of fact than that reached by the Board unless the Board made findings of fact in a perverse or capricious manner or without regard to the material before it.

    If there are facts to support the Board's conclusion and its finding is one that was reasonably open to it based on the evidence before it, an Umpire is not entitled to substitute his or her own view of the facts for those of the Board.

    Canada (A.G.) v. Cole, [1983] 1 F.C. 425 (F.C.A.) A-20-82 Judgment of the federal court of appeal
    Dubois v. C.E.I.C. [1984], F.C.J. No. 31 (F.C.A.) A-548-83 Judgment of the federal court of appeal
    Canada (A.G.) v. Wilson, September 19, 1984, F.C.J. No. 817 (F.C.A.) A-533-84 Judgment of the federal court of appeal
    Roberts v. C.E.I.C. [1985], F.C.J. No. 413 (F.C.A.) A-595-84 Judgment of the federal court of appeal
    C.E.I.C. v. Chapdelaine [1986], F.C.J. No. 193 (F.C.A.) A-1203-84 Judgment of the federal court of appeal
    Champagne v. C.E.I.C., June 9, 1987, F.C.J. No. 525 (F.C.A.) A-707-86 Judgment of the federal court of appeal
    Overall v. Canada (A.G.), June 14, 1988, F.C.J. No. 598 (F.C.A.) A-809-87 Judgment of the federal court of appeal
    Canada A.G.) v. Maughan, [1994], F.C.J. No. 75 (F.C.A.) A-1463-92 Judgment of the federal court of appeal
    Canada (A.G.) v. McCarthy, August 5, 1994, F.C.J. No. 1158 (F.C.A.) A-600-93 Judgment of the federal court of appeal
    The Queen v. Dietrich, December 13, 1994, F.C.J. No. 1921 (F.C.A.) A-640-93 Judgment of the federal court of appeal
    Canada (A.G.) v. Feere, January 23, 1995, F.C.J. No. 109 (F.C.A.) A-87-94 Judgment of the federal court of appeal
    Canada (A.G.) v. Freeman, [1995], F.C.J. No. 711 (F.C.A.) A-480-94 Judgment of the federal court of appeal
    Guay v. Canada (A.G.), [1997], F.C.J. No. 1223 (F.C.A.) A-1036-96 Judgment of the federal court of appeal
    Belanger v. C.E.I.C., Judgment of the federal court of appeal (Employment Insurance Commission), Judgment of the federal court of appeal June 12, 1998, F.C.J. No. 905 (F.C.A.) A-839-97, A-840-97 Judgment of the federal court of appeal
    Lambert v. C.E.I.C., September 24, 1999, F.C.J. No. 1537 (F.C.A.) A-169-98 Judgment of the federal court of appeal
    Canada (A.G.) v. Merrigan, [2004], F.C.J. No. 1187 (F.C.A.) A-92-03 Judgment Of The Federal Court Of Appeal
    Mishibinijma v. Canada (E.I.C.), [2005], F.C.J. No 27 (F.C.A.) A-30-04 Judgment Of The Federal Court Of Appeal

    It is not open to an Umpire to make new findings of fact or reject findings of fact of the Board of Referees simply because the Umpire views the facts differently than the Board.

    Canada (A.G.) v. Verreault [1986], F.C.J. No. 657 (F.C.A.) A-186-86 Judgment of the federal court of appeal
    Canada (A.G.) v. Maughan [1994], F.C.J. No. 75 (F.C.A.) A-1463-92 Judgment of the federal court of appeal
    Canada (A.G.) v. Ash [1994], F.C.J. No. 1716 (F.C.A.) A-115-94 Judgment of the federal court of appeal

    Where the issue before the Board of Referees involves an appreciation of the evidence, the Board's decision should only be interfered with if there is a palpable or overriding error affecting an assessment of the facts.

    Agronin v. Canada (A.G.), January 13, 1998, F.C.J. No. 62 (F.C.A.) A-940-96 Judgment of the federal court of appeal

    The matter before the Umpire is an appeal and the Umpire can only intervene on factual issues where the Board had based its decision on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before it. In some cases the Umpire may only be able to make such a determination if the evidence before the Board is available to him or her.

    Mishibinijma c. Canada (C.A.E.), [2005], A.C.F. No 27 (F.C.A.) A-30-04 Judgment Of The Federal Court Of Appeal

    Even if the findings of fact on which the Board based its decision appear questionable, it does not necessarily follow that they are erroneous, perverse or capricious.

    Canada (A.G.) v. Verreault [1986], F.C.J. No. 657 (F.C.A.) A-186-86 Judgment of the federal court of appeal

    The fact that other Boards may have reached a different conclusion does not mean that the Board's decision was perverse or capricious.

    Canada (A.G.) v. Cole, [1983] 1 F.C. 425 (F.C.A.) A-20-82 Judgment of the federal court of appeal

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    2009-04-29