APPENDIX: CASE LAW SUMMARIES

C: EVIDENCE

L. MARCEAU, J. IN A1036-96 (GUAY)

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.

GIBSON, J. IN CUB 42124 (WALCOTT)

Credibility determinations are at the centre of the role of a Board of Referees. It is the Board of Referees that has witnesses before it and has the opportunity to observe the demeanour of the witnesses. In the absence of evidence that the Board ignored evidence that was before it or took into account irrelevant considerations in arriving at a credibility determination, it is not open to an Umpire, on appeal from a decision of the Board, to interfere with a credibility determination. Here, despite the detailed argument on behalf of the claimant, I find no such error. While counsel for the claimant demonstrated a number of contradictions and inconsistencies in the evidence on behalf of the claimant's former employer, I can find no reason to conclude that those inconsistencies and contradictions were so central to the Board's credibility finding as to render it unsupportable.

MACGUIGAN, J. IN A-897-90 (MCDONALD)

I cannot, however, take such a benign view of the effect of the Board's finding of non-credibility with respect to the issue of misrepresentation. Merely disbelieving the applicant's testimony is not a sufficient basis for the Board's conclusion that he knowingly made false or misleading statements. There is another element of proof required, relating to his state of mind, one on which the onus, as I have already said, rests with the Commission. The Board's finding that the applicant's credibility was "indoubt" does not amount to a finding that the Commission has discharged its burden.

STRAYER, J. IN CUB 13366 (MCIVOR)

Where a Board of Referees ignores clear oral evidence, in this case corroborated by other oral evidence, and prefers instead hearsay statements on the record (double hearsay in this case, being a record by the Insurance Officer of a conversation with the Office Manager of the employer who in turn was relating what she had been told by the Operations Manager) then the Board can be found to have made an erroneous finding of fact without regard for the material before it. I would therefore allow the appeal, set aside the decision of the Board of Referees, and order a new hearing by a different Board. While it is not for me to dictate how that hearing can be conducted, it appears to me to be important that the Board should not readily ignore direct, oral evidence, which is subject to cross-examination, in favour of indirect hearsay that is subject to no cross-examination.

MULDOON, J. IN CUB 15252 (BANKS)

An employer is not entitled to be presumed more credible than an employee. Credibility is to be found upon the material, both documentary and oral, before the board of referees. Neither side starts with any favourable (or unfavourable) presumption of credibility.

CULLEN, J. IN CUB 10726 (FARSAD)

In my view this is a clear case of credibility, properly to be decided by a Board of Referees and further, every effort should be made by the Board of Referees to secure the direct oral evidence. I appreciate that the Board is allowed to use hearsay evidence and that procedures are relaxed to keep hearings as informal as possible. Here, however, the Board of Referees is forced to consider hearsay from a person who got that information second hand.

REED, J. IN CUB 12897 (PULZONI)

Where there is reason to doubt the credibility of written evidence, a Board should not rely on that evidence in the face of oral testimony contradicting the written statements. The individuals should have been called and questioned on their written statements, in order to assess the credibility of their evidence if that evidence was going to be relied on.

MULDOON, J. IN CUB 15252 (BANKS)

If the Commission is going to cite jurisprudence to referees, it must make balanced citations of jurisprudence. To submit selectively slanted jurisprudence is highly improper and unfair, since almost all referees are not lawyers, as all claimants are not lawyers, and neither category of participants in the system has access to the kind of researchers mentioned above, or any at all. On the other hand the Commission's agents, by virtue of the scope of their employment and their work experience, do have access to catalogued unemployment insurance jurisprudence.

REED, J. IN CUB 14876 (HAYES)

I would note that Boards of Referees should not apply in a mechanical fashion "verbal formulae" which the Commission throws at them. For example, the Commission is overly quick to quote the statement in CUB, that the first statements made by an individual have more credibility than those made subsequently. This is a presumption; it is a guideline; but, it is not a rule to be applied mechanically and woodenly. In many situations, a person's first explanation is likely to be truer because they have not had time to adjust it to fit what are later discovered to be the requirements of the unemployment insurance system. But, in many instances, the first statements are given in response to Commission questionnaires, which themselves are not clear or which claimants approach with certain preconceptions. These preconceptions can lead claimants to answer in a more restrictive way than truly reflects their intentions. Also, when a claimant gives an explanation concerning the context of an earlier statement, the Board must take the explanation into account in assessing whether the later statements are indeed contradictory to the earlier statements or whether a credible explanation exists.

ROBERTSON, J. IN A-418-97 (CHILDS)

In concluding that Commission employees need not present themselves for cross-examination before a Board in circumstances where alleged admissions by claimants are found within notes prepared by the former, Ido not want to be taken as holding that such written evidence of oral admissions must be accepted at face value. The Board is entitled to make a specific finding that a claimant was a credible witness not withstanding conflicting statements found within notes taken by Commission staff during an interview. Such statements are intrinsically unreliable when not approved by claimants at the time made, but in the end it is the role of the Board to determine what weight, if any, should be given to same.

LINDEN, J. IN A-667-96 (MORETTO)

Here, both the Board and the Umpire assumed that making a legally false statement led inevitably to a finding that it was subjectively known to beso. They were wrong in law in that they did not properly consider the question of whether the claimant subjectively knew that the statements he made were false, as required by Gates (supra).

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