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Decision
[1] The appeal is allowed. The matter will be returned to the General Division for reconsideration.
Introduction
[2] Previously, a member of the General Division determined that the Appellant’s appeal should be dismissed. In due course, the Appellant filed an application for leave to appeal with the Appeal Division and leave to appeal was granted.
[3] An in-person hearing was held. The Appellant attended in-person. With special permission from the Tribunal, the Commission attended by teleconference.
The law
[4] According to subsection 58(1) of the Department of Employment and Social Development Act, the only grounds of appeal are that:
- (a) the General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
- (b) \the General Division erred in law in making its decision, whether or not the error appears on the face of the record; or
- (c) the General Division based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.
Analysis
[5] Although this appeal appears to revolve around whether or not the General Division member correctly determined the Appellant did not have just cause to voluntarily leave his employment and also whether or not a penalty and notice of violation should have been imposed, the true issue is whether or not the Appellant’s employment was genuine.
[6] It is not disputed that the Appellant left his job voluntarily. In his view, he was entitled to do so because he had a second job. According to Canada (Attorney General) v. Marier, 2013 FCA 39, if he had a second job this is indeed true.
[7] But only if he had a genuine second job.
[8] The Commission, following an investigation, concluded (at GD2 – 129 and GD2 -137) that no genuine records of employment (ROEs) had ever been issued by the Appellant’s alleged second Employer. From this, it followed that the Appellant’s employment and ROE were not genuine. This caused the Commission to take the steps outlined above to prevent the Appellant from receiving benefits and to punish him for knowingly making a false statement.
[9] The Appellant, responding to these allegations, provided a T4 (found at GD2 -193) which in his view proved that his job was legitimate. Also provided was a Notice of Reassessment from the Canada Revenue Agency (found at GD2 -137).
[10] Although at the hearing before me the Commission also suggested that employment insurance premiums may not have been paid by the second Employer, for unknown reasons no referral to the Canada Revenue Agency under s. 90 of the Employment Insurance Act was requested to determine this question. I note that in the absence of such a referral, ss. 90(4) is quite clear that all premiums are deemed to have been properly paid.
[11] The General Division member, after stating the law and the position of the parties, found at paragraph 32 that:
“It is the Appellant’s responsibility to prove his entitlement to benefits. His evidence was that he was paid in cash by [the Employer] and there are no records of his employment from that period. The Member finds that the Appellant failed to provide, on a balance of probability or a preponderance of evidence, to support [sic] for his entitlement to benefits from any employment at [the Employer].”
[12] The member then went on to uphold the assessing of a penalty and a notice of violation, and dismissed the appeal.
[13] Ultimately, there were two versions of the truth presented to the General Division member, that of the Appellant and that of the Commission. It was the member’s role not just to determine which of these (or neither) was actually true, and make findings of fact accordingly, but to explain why he preferred one version over the other (or neither) and state how he came to his conclusions.
[14] Unfortunately, I am not satisfied that the General Division member did so.
[15] Paragraph 32, quoted above, is the only part of the member’s analysis explaining how he came to his finding that the job was not genuine. At no time did the member address the Appellant’s evidence regarding the T4 or Notice of Reassessment or the Commission’s evidence regarding the investigator’s report.
[16] It must be stated that cases of alleged fraud such as this one can be quite difficult to resolve. They often involve unsworn double-hearsay investigation reports and incomplete or untested evidence from third party alleged fraudsters or accomplices. Sometimes, only circumstantial evidence regarding the specific claimant before the Tribunal is available.
[17] Notwithstanding this, it is the role of the General Division to weigh the evidence and come to properly explained conclusions of fact. As that was not done here, this decision cannot stand.
[18] The correct remedy for this error is a new hearing before the General Division.
Conclusion
[19] For the above reasons, the appeal is allowed. The matter is returned to the General Division for reconsideration.