Decision A-0600.94

Summary:

The Umpire went beyond where he should have gone in describing the mental element required for a finding of knowledge, as set out in McDONALD. It would be erroneous to conclude that an additional element is required in addition to knowledge, that is, anintention to deceive. Ss. 33(1) allows for the imposition of a financial penalty, which implies that some improper (though not criminal) conduct has taken place, that is, knowingly to misrepresent facts. The words "knew to be false" require a subjective test in determining whether the requisite knowledge is present. This was recognized in ZYSMAN where it is indicated that "a subjective knowledge of the falsehood on the part of the speaker was crucial".

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Summary:

The UI system does not exist to provide a salary for all those who wish to start a new business and say they do not believe that doing so is working. Despite professed ignorance, depending on the evidence and common sense, they may be disbelieved and knowledge of falsity may in fact be present.

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Summary:

That it is possible for honest confusion to arise as to the meaning of the word "work" can be seen from CUB_6661A to the effect that voluntary work and work in the garden are not considered to be "work" for our purposes. The Board implied that there is a legal obligation upon claimants to educate themselves as to the meaning of the word "work". In doing so, the Board appeared to utilize an objective standard in deciding knowledge. This was erroneous. There is no such legal obligation.

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Summary:

CUB 22326 quoted to the effect that the onus shifts to claimant to explain incorrect answers to simple questions on the report cards. As a practical manner this is so, but the explanation offered may be readily acceptable. It depends on the evidence andthe circumstances. The fact-finder must decide on the balance of probabilities that the claimant subjectively knew that the report was false in order to penalize him or her. It is possible, though unlikely, for a claimant to be truly ignorant of some fact, even a simple one, when nearly everyone would know it.

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Summary:

Ss.33(1) is clearly a penalty provision permitting the Commission to impose a financial sanction, in addition to requiring the claimant to repay the money incorrectly received. However, it does not create a criminal offence.

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Summary:

The onus of proof that rests upon the CEIC is to establish on a balance of probabilities, not beyond a reasonable doubt, that claimant made a statement that he knew to be false. Purely innocent representations do not subject claimant to a penalty, even though any money paid in error must be repaid. The evidence about knowledge must be evaluated by the Commission or the Board and findings of fact and credibility made. It may not be enough to say that claimant was not credible or that credibility is in doubt; more may be required of the fact-finder.This has been recognized in McDONALD.

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Summary:

It may be that the Board meant to say merely that they did not believe the claimant and felt that she knew the report was false. If that was what they had said it would have been unimpeachable. This does not mean that anyone may escape a penalty merely by proclaiming a lack of knowledge. Protestations of ignorance are all too common in these cases. People often say they do not know something, when they in fact do. They do not have to be believed. If claimant claims to be ignorant of something that the whole world knows, the fact-finder could rightly disbelieve that claimant and find that there was, in fact, subjective knowledge, despite the denial. Not to know the obvious, therefore, might properly lead to an inference that one is lying.

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