Digest of Benefit Entitlement Principles - Chapter 18
CHAPTER 18
FALSE OR MISLEADING STATEMENTS
18.3.0 BURDEN OF PROOF
18.3.1 Onus of Proof
18.3.2 Required Standard of Proof
18.3.3 Establishing the Proof
In order to prove that there is an offence, it is necessary to gather all the evidence that demonstrates that a fact is inconsistent with the circumstances of the case. In the context of the penalty provision, it is the Commission that must discharge this responsibility. We will now examine more closely what is meant by the burden of proof, the required standard of proof and how to establish the proof.
A definition of the "burden of proof" from a well-known source1 reads as follows:
In the law of evidence, the necessity or duty of affirmatively proving a fact or facts in dispute. . . . The obligation of a party to establish by evidence a requisite degree of belief concerning a fact in the mind of the trier of fact. . . .
A fundamental rule we can adopt is that the burden of proof is on the party that makes a substantive allegation concerning something in dispute. For the purposes of the administration of EI benefits, jurisprudence has consistently maintained that the Commission principally bears the weight of the burden of proof and is responsible for proving that the person not only made false or misleading statements, but also made them knowingly.
Once the Commission has completed its fact finding, it will be up to the claimant, employer, or persons acting on their behalf to provide a reasonable explanation to show an honest mistake. If there is no response to the Commission's request for an explanation, a penalty can still be imposed. It is essential, however, that the Commission provides all parties with the opportunity to provide an explanation.
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- Black's Law Dictionary, 5th edition, 1979.
18.3.2 Required Standard of Proof
The Federal Court of Appeal decided this question and has outlined the path of reasoning to be adopted1. The FCA confirmed again its position in a subsequent decision2. The Court first held that the use of the words "knew to be" does not in itself constitute an offence requiring proof in accordance with the criminal law standard, that is, beyond a reasonable doubt, but rather it prevents penalties from being imposed in respect of mistaken statements innocently made.
The Court considered the required standard of proof and held that it is the ordinary civil law standard of the "balance of probabilities." This expression has been defined3 as follows:
. . . evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it. . . . With respect to burden of proof in civil actions, means greater weight of evidence, or evidence which is more credible and convincing to the mind. That which best accords with reason and probability. . . . It is that degree of proof which is more probable than not.
As can be seen, it is basically a question of good judgment, logic and experience. To determine whether the person made a declaration that he or she knew to be false or misleading and whether a penalty should be imposed, the insurance officer should refer at all times to the concept of probability.
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- D. McDonald (A-897-90, CUB 18611);
- D. Corner (A-18-93, CUB 22165);
- Black's Law Dictionary, 5th edition, 1979.
As we saw earlier, the Commission has the initial responsibility for proving on a balance of probabilities that a false or misleading statement, act or omission has been made, after which it is up to the claimant, employer or persons acting on their behalf to give an explanation for his or her acts or omissions. If the person who made the statement fails to give an explanation, the Commission may then conclude that a false or misleading statement has knowingly been made and, if appropriate, impose a penalty. The amount of the penalty may vary depending on criteria we will consider later. However, the determination of the notion of "knowingly" may be revised by appellate review1.
The Commission can discharge its responsibility by gathering direct evidence (evidence that bears directly on the fact whose proof or rebuttal is wanted) or indirect or circumstantial evidence that might support the allegations. Of course, the best evidence is the claimant's admission to the false or misleading statement. Generally, the Commission has to resort to other methods that will permit it to prove or refute any allegation of fact that is at issue in the investigation. In conducting this research, it must be remembered that any contradiction in the explanations provided by the claimant damages the credibility of his or her evidence.
There are no absolute tests for assessing the credibility of evidence. Its value will be determined by good judgment, logic and experience. For objective questions, direct evidence is usually sufficient and does not have to be supported by other evidence. The opposite is true for subjective questions, in respect of which the claimant's statements might not be sufficient proof of what he or she alleges. Then the claimant's conduct must also be taken into consideration. For example, the claimant's attitude towards accepting employment, the degree of participation in a business, the ability to actually accept a suitable job, etc.
Lack of credibility may be found where the issue is a perception of inherent improbability in the facts presented by the claimant, the employer, or the persons acting on their behalf. However, merely disbelieving the testimony is not a sufficient basis for the conclusion that false or misleading statements were knowingly made and that the Commission has discharged its burden relating to the person's state of mind2.
The impartiality of the source of the evidence is also an important factor for assessing its credibility. Provided that the person has relevant knowledge concerning the situation, evidence from an impartial source is usually more credible than evidence presented by a person connected to the parties or who has something to gain or lose in the resolution of the case.
Evidence can be gathered in several ways, orally or in writing, by mail, telephone, or in person. Although there is no hard and fast rule governing evidence, a written statement signed by the person who is testifying is generally more preferable and more credible. Nevertheless, any form of evidence may have validity. The position that an unsigned statement may be credible and accepted as proof has been consistently maintained by the jurisprudence3. However, any use of the expression "statutory declaration" means that it was signed by the person making that statement; otherwise, it would be considered inadmissible by the Court4.
Although it is a sound and valid principle to give greater weight to an initial statement than to one made after disentitlement has been imposed, this principle must not be applied blindly and automatically. Here again, it is a question of good judgment. If the person is credible and the action appears to be reasonable, then the statement may be accepted.
After gathering all the facts, the insurance officer must take into consideration all the information and explanations produced and decide whether they are reasonable. Over the years this exercise had been the subject of debate and sometimes has been opposed in judicial decisions but the matter was finally resolved by the Federal Court of Appeal5.
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- R.M. Purcell (A-694-94, CUB 25953);
- D. McDonald (A-897-90, CUB 18611); C. Gates (A-600-94, CUB 25451);
- W. Mills (A-1873-83, CUB 8750); Jurisprudence Index/Board of Referees/weight of statements/contradictory/; Jurisprudence Index/Availability for work/applicability/proof/; Jurisprudence Index/Board of Referees/weight of statements/not signed/; Jurisprudence Index/Board of Referees/weight of statements/from a Commission agent/;
- G. Dhillon (A-444-95, CUB 25943A); s. 41 of the Canada Evidence Act;
- see 18.3.2, "Required Standard of Proof."