Date: 20080111
Docket: A-139-07
Citation: 2008 FCA 13
CORAM: DÉCARY J.A.
LÉTOURNEAU J.A.
NADON J.A.
BETWEEN:
OBERDE BELLEFLEUR OP
CLINIQUE DENTAIRE O. BELLEFLEUR
(EMPLOYER)
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
Hearing held at Montréal,
Quebec, on January 9, 2008.
Judgment delivered at Montréal, Quebec, on January 11, 2008.
REASONS FOR JUDGMENT:
LÉTOURNEAU J.A.
CONCURRED
IN BY:
DÉCARY J.A.
NADON J.A.
Date:
20080111
Docket: A-139-07
Citation: 2008 FCA 13
CORAM: DÉCARY J.A.
LÉTOURNEAU J.A.
NADON
J.A.
BETWEEN:
OBERDE BELLEFLEUR OP
CLINIQUE DENTAIRE O. BELLEFLEUR
(EMPLOYER)
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
LÉTOURNEAU J.A.
[1]
The employer
is challenging through judicial review a decision by Umpire Goulard
(CUB 66262A) allowing the appeal of the Employment Insurance Commission
(Commission), setting aside the decision of the Board of Referees and referring
the matter for rehearing before a differently constituted Board of Referees.
[2]
By upholding
the Umpire’s decision, as I plan to do, it will be the second time that, for
exactly the same reasons, the matter has been referred to a differently
constituted Board of Referees (see the decision of Umpire Marin in CUB 62693). The resulting decision, not
without significant and unfortunate costs for the parties and the system, will
be the third that a Board of Referees will be called to make. I hope that this
time it will be the correct one and that the Board of Referees will fully
assume the important duties conferred to it by the Employment Insurance Act,
S.C. 1996, c. 23.
[3]
A Board of
Referees must justify its determinations. When it is faced with contradictory
evidence, it cannot disregard it. It must consider it. If it decides that the
evidence should be dismissed or assigned little or no weight at all, it must
explain the reasons for the decision, failing which there is a risk that its
decision will be marred by an error of law or be qualified as capricious.
[4]
In Parks
v. Canada (Attorney General), [1998] F.C.J. No. 770 (QL), at
paragraphs 5 and 6, our Court reiterated the principle in these words,
referring to subsection 79(2) of the Unemployment Insurance Act, now
subsection 114(3):
5. We are
all in agreement that the Board erred in law in failing to comply adequately
with subsection 79(2). Specifically we are of the view that it was incumbent on
the Board to state, at least briefly, that it rejected critical parts of the
evidence of the applicant on grounds of credibility, and why it did so. In this
case there was before the Board much written material from the employer of a
hearsay nature. The affidavit evidence and oral statements of the claimant
before the Board conflicted in various respects with this material. The Board
simply states its conclusions without explaining why it preferred one version
of events to the other
6. While
we do not interpret subsection 79(2) to require a detailed statement of
findings of fact, we are of the view that the Board of Referees, to comply with
that subsection, must when there is an issue of credibility state at least
briefly, as part of its "findings ... on questions of fact material to the
decision", that it rejects certain evidence on this basis and why. When it
fails to do so it errs in law.
[5]
In this
case, the Umpire identified many contradictory statements (for example in
regard to the place where the work was effected and in regard to the mode as
well as the amount of the earnings) and extensive evidence that the Board of
Referees failed to consider that proved to be relevant to assessing the employer’s
testimony: see page 2 of the Umpire’s decision.
[6]
The Umpire
also alleged, in my view rightly so, that the Board of Referees had ignored
the initial spontaneous statements made by claimant which were later changed
and adjusted in accordance with the statements of other individuals: ibidem,
at page 3. This fact raised a significant issue regarding credibility which the
Board of Referees had the role and the duty to assess to then make a finding
and, above all, justify it.
[7]
Umpires
Marin and Goulard adequately explain the shortcomings of the earlier decisions
and identify the evidence to consider, in terms of letter and spirit. Here is
no need to add anything more, except to reiterate that the Board of Referees must
analyze all of the evidence, and if it decides to dismiss certain evidence or to
not assign it the probative value that this evidence appears to reveal or
convey, it must explain why.
[8]
The applicant,
who is representing himself, alleges that the rules of natural justice were
breached as a result of the fact that Umpire Goulard allowed the Commission’s
objection to the applicant providing explanations regarding a statement by a
witness made anonymously out of fear of threats and reprisals from the employer.
Allowing the objection had the effect, according to the applicant, of
preventing him from being heard.
[9]
The issue
of the anonymous statement is not an issue that was raised for the first time
before the Umpire. The Board of Referees had the issue before it. Indeed, at page
6 of the reasons of his decision, the Umpire criticized the Board of Referees for
not explaining why it considered that the information obtained through this
statement was limited and why the document did not appear convincing when this information
specifically concerned the issue.
[10]
In any
event, the applicant will be able to submit his representations on the issue at
the new hearing before the Board of Referees.
[11]
For these
reasons, I would dismiss the application for judicial review with costs.
“Gilles
Létourneau”
“I
concur.
Robert Décary, J.A.”
“I concur.
Marc
Nadon, J.A.”
Certified
true translation
Kelley
A. Harvey, BCL, LLB
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