Digest of Benefit Entitlement Principles - Chapter 17
CHAPTER 17
RECONSIDERATION, AMENDMENT OF A DECISION, AND ERROR CORRECTION
17.4.0 AMENDMENT OF A DECISION—Section 120
17.4.1 Applying Section 120
17.4.2 New Facts Defined
17.4.3 Diligence Defined
17.4.0 AMENDMENT OF A DECISION—Section 120
When the claimant or the employer seeks to have the decision amended or rescinded through a review process1 it is looked at only upon:
- the presentation of new facts;
- being satisfied that the decision was given without knowledge of some material fact; or on
- being satisfied that the decision was based on a mistake as to some material fact.
It is also under this section of the Act2 that the Commission may request that the Board of Referees or the Umpire review their decision. There is no time limitation with respect to a review under this section of the Act.
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1) New facts: the majority of reviews under this section of the Act take place because a decision is disputed and new facts are presented in support of that dispute. When the information provided meets the definition of new facts1 the decision is reviewed.
2) Without knowledge of a material fact: for a fact to be considered material it must be one that had it been known earlier would have played an important part in the making of the decision, such as a statement from the employer on the reason for separation.
3) Mistake as to a material fact: it is considered to be a mistake as to a material fact when that fact was on file, was noted by the decision maker but was misunderstood. The misinterpretation of that fact caused a wrong determination of the legal consequences of that fact.
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- see 17.4.2, "New Facts Defined."
A definition of "new facts" was given in a federal court judgment as follows:
A different version of facts already known to the claimant, mere afterthoughts or the sudden realization of the consequences of acts done in the past are not "new facts". "New facts", for the purpose of the reconsideration of a decision of an umpire sought pursuant to section 861 of the Act, are facts that either happened after the decision was rendered or had happened prior to the decision but could not have been discovered by a claimant acting diligently and in both cases the facts alleged must have been decisive of the issue put to the umpire2.
Based on the court's decision, there are two factors to be considered for alleged new facts to be such:
1) To be a new fact, the fact has to have happened either since the decision was rendered by the Umpire, by the Board of Referees, or by the Commission as the case may be, or if it happened before the said decision, even in the case where the claimant would have acted with diligence, this fact could not have been discovered; and
2) To be considered a new fact, the fact must be decisive of the issue submitted for review. In other words, the body responsible for the review (Commission, Board of Referees, or Umpire) must be reasonably satisfied that the fact or evidence provided could affect the outcome of the decision in an essential and fundamental way. In the negative it cannot be considered a new fact.
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- EIA 120;
- C. Chan (A-185-94, CUB 22575B).
Based on a definition from Black's Law Dictionary1, diligence can be defined as that degree of care which people in general exercise in respect to their own concerns. Therefore the agent, taking all the circumstances surrounding the situation into account, must determine if in the provision of these new facts, the claimant, the employer, or the Commission acted as a reasonable person2 would so as to protect their right to benefits. When the answer is yes, the decision may be amended; if not, there can be no amendment. Jurisprudence has held that it is not possible to apply a standard to diligence, as each case must be judged on its own facts3.
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- Black's Law Dictionary, Sixth Edition, page 457;
- W. Albrecht (A-172-85, CUB 10026);
- W. Albrecht (A-172-85, CUB 10026).