FRANÇAIS 

HONOURABLE J.J. URIE, UMPIRE

This is one of 19 appeals by Claimants from decisions of various Boards of Referees which were all argued in Vancouver on November 24 and 25, 1994. While counsel for fifteen of the Claimants, Ian Goldman, largely referred to issues common to each, there were some factual differences common to some and not to others of his clients. I propose to treat this as a representative appeal referring, where appropriate, to different fact situations in other appeals. My decision herein will apply, therefore, to all of them and will be annexed to the decisions applicable to each individual appeal. The appeals to which this decision will be annexed and will become the decision for those appeals are the following:

Manjit Sidhu

Sewak Sharma

Malkit Sidhu

Sarbjeet Sharma

Darshan Chawla

Mohinder Padda

Avtar Grewal

Kuldip Grewal

Jaswant DhillonVeer

Pal Sharma

Sher Singh Padda

Raminder Grewal

Rashpal Sandhu

Sukhvinder Sidhu 

The facts in this case, which differ only in specifics from all other appeals of which this is the representative, are as follows.

The Claimant/Appellant, according to the Commission, had been employed by Pancho Farm Labour Contractors Ltd. That firm had supplied Hazelmere Greenhouses Limited with labourers among whom was were Ms. Kumar who worked as a "picker". She had been so employed, it was disclosed in the evidence, adduced by the Commission, for the years 1990, 1991 and 1992 during the periods in each year from April 1 to the end of the season on November 30, the "growing season" or the "picking season." Her wages were paid by Pancho at rates set by them and unknown to Hazelmere. Again according to the Commission, in 1991 the Appellant worked at Hazelmere during the period March 31 through July 6; at Evergreen Produce from July 7 through October 1, 1991 and then returned to work at Hazelmere to the end of November. Apparently in the years 1990 and 1992 she worked the complete growing season at Hazelmere.

The appellant filed an initial claim for benefit effective September 23, 1990. Subsequently she filed a second claim for benefit effective October 20, 1991. She renewed that claim effective September 6, 1992. During the course of an extensive investigation by the Commission into suspicions of insurance fraud, it was discovered that the Appellant, in common with many other agricultural and horticultural workers in the Lower Mainland of B.C., appeared to have been in receipt of benefits while employed by Pancho and other labour contractors and at the same time, working for producers such as Hazelmere during the normal "picking season".

As a result, the Commission found that the Appellant had not proven that she was unemployed during certain weeks because she had worked five days, forty hours or more weekly as an agricultural worker as a result of which it suspended payment of benefits (a) from September 24, 1990 to December 7, 1990; (b) from April 1, 1991 to July 5, 1991; (c) from October 21, 1991 to November 29, 1991; and (d) from March 30, 1992 to May 22, 1992. She was also found to have represented that she did not work the full working weeks during the period commencing September 24, 1990 and had knowingly made 13 false or misleading statements for which a penalty of $3,380.00 had been imposed. A further penalty of $1800 was assessed for having knowingly made 8 such false or misleading statements during the weeks beginning October 21, 1991.

When interviewed through an interpreter by an officer of the Regional Investigation Unit on November 16, 1991, the Appellant stated that she did not work for Pancho or Hazelmere at all in 1991. Her only work during that year, she said, was for Evergreen Produce for 15 weeks and she had no other earnings. The interpreter translated the report of the interview for the Appellant who was said to have understood what was read to her.

The Commission submitted in evidence in support of its decisions, inter alia, an unsworn but signed declaration by Joe Hopink, the supervisor in charge of the "pepper" section at Hazelmere. He identified a photograph produced to him by Commission investigator, as being that of Ms. Raj Rani Kumar and an employee of Pancho, who had worked at Hazelmere under contract with Pancho since April 1, 1990 through the end of each season November 30. At the date of the declaration, August 19, 1992, she was still so employed. The declaration or statement was also signed, presumably as witnesses, by Paul Liu and Vincent Lazuardi. They are not otherwise identified.

On the basis of the foregoing evidence, as well as a considerable body of other supporting statements which need not be dealt with herein, the Board reached the following conclusions:

As earlier indicated, the details and specifics in the records of each of the other 14 appellants represented by Mr. Goldman, differed but the essential elements of the Commission's findings, the evidence upon which they were made and the findings of the Board were so similar as to enable this to be considered as a representative appeal upon which a decision can be made in the other fourteen appeals, using the reasons for this appeal as the basis therefor.

I now turn to the merits of the appeal.

The submissions of Appellant's counsel will be dealt with hereafter, seriatim, in the order in which they were raised.

Paragraphs 3, 4 and 6 of the declaration set forth the alleged concerns of the Appellants. They read as follows:

Mr. Goldman's contention before me was that his clients had been the victims of a fraud, as were the Umpire and the Board of Referees and that alone provides a ground for a re-hearing by the Board. In addition, he said, that when he received the various files a month earlier he had found that they contained significant documents which had not been produced before the Board; such as time sheets signed by the labour contractors for whom the appellants worked, tax returns, and T4's. Nor, it was said did Mr. James ask the Appellants to produce their passports to show the bearers' whereabouts at some of the times they were alleged to have been employed. These facts were all evidence of the poor representation provided by Mr. James as were other procedural defects alleged to have been committed by the Board due to Mr. James' failure to properly make certain representations concerning requested adjournments. In counsel's view, all of the foregoing was indicative of a denial of natural justice to his clients.

In view of the serious allegations made against him, Mr. James, who was present at the hearing before me, requested an opportunity to be heard which I granted. He stated that he had indeed been suspended from the practice of law effective December 31, 1992 for failure to pay fees since his cheque therefor had been returned marked "not sufficient funds", a fact of which he was not aware at the time he had been retained by the Appellants. His application for reinstatement to the Society had been unsuccessful because of his failure to satisfy certain judgements against him arising from unfortunate investments.

As to the alleged failure to properly disclose evidence in his possession, he says he saw all of it and was of the opinion that it was not relevant to the issues before the Board or, as in the case of the tax returns, because they were self generated they had little or no probative value. Where appropriate he had produced passports but did not if there was no evidence to support the holder's case.

I am of the opinion that there is no merit in the Appellants' contentions. If they have a complaint as to Mr. James practicing law without a license, the complaint should be made to the Law Society of British Columbia not to this tribunal. There is no requirement of which I am aware, that a representative for an appellant either before a Board of Referees or an Umpire must be a lawyer. More frequently than not they are not. Therefore, the status of the lawyer with the Society is not relevant to their right to appear before either Tribunal.

As to the quality of Mr. James representation before the Board of Referees, it is not without significance that his failure to have his license to practice renewed, resulting in his suspension, had nothing to do with his competency or honesty as a practicing lawyer. It resulted, as far as I have been told, solely from his failure to pay his fees. His failure to conduct the various appeals in the manner which the clients expected to lead to success, again is not a matter with which the Umpire or the Board can be concerned. The clients chose their own representative, and absent some kind of fraud which is not present here, so far as the Tribunal is concerned, the quality of the representation given them is of no concern to the Tribunal. If every dissatisfied client, after the fact, could successfully challenge his representatives' handling of his case, there would be no end to the litigation.

Accordingly, the Appellants' motion to remit the matter for a new hearing on the grounds referred to is dismissed.

2. Counsel for the Appellant referred to subsection 42(2) of the Regulations which reads: 

He pointed out, correctly, that in not one of the employer's declarations (in this appeal Joe Hopink's) is there a mention of 5 days per week. Each refers only to the appellant working a 40 hour week. In his view, therefore, the failure to adduce evidence and establish that this Appellant, and all others like her, worked 5 days each week removes one of the underpinnings to be proved in order to permit a finding that she be regarded as having worked within the meaning of subsection 42(2) of the Regulations.

While it is true that the declarations do not make such a statement there is other evidence in the records of each Appellant from which the Board might reasonably conclude that each worked at least 40 hours per week. I refer in particular to the applications of each appellant for unemployment insurance in which he or she is required to answer the question "What were your normal earnings before deduction?" In her application of September 27, 1990 (Exhibit 2.2) the Appellant answered $500.00 per week. In answer to the next question "How many hours and days did you normally work each week" she answered "50-60 hrs." (emphasis added). Similarly in answering questions 26 and 27 in her application of October 23, 1991, which questions are identical to those above referred to above, she answered $375 per week and 60-70 hours each week respectively.

The applications of every other appellant are to like effect. The Board was entitled to accept this evidence as being probative of the fact that she had worked at least a five day week without the specific statement being made. It is hard to envisage working a 15 hour day in the back-breaking work of a picker, which would be necessary if a four day week or less was the worker's norm. In any event, such a finding of fact was open to the Board and was not made in either a perverse or capricious fashion or without regard to the evidence. The appellant's appeal on this ground must, therefore, fail.

Counsel for the Commission readily conceded that in a number of cases the declarations did not comply with the requirements of the Canada Evidence Act. Contrary to the submissions of appellant's counsel, he pointed out that they were not the only evidence in each record. There were therein other statements, reports of interviews, report cards and other documents all of which were relevant and material in deciding on the factual issues required to be determined by the Board.

I agree. As has often been said a Board of Referees has a broad discretion in considering, attaching weight, accepting or rejecting evidence adduced before it. The members thereof are not bound by the rules of evidence in the way that a judicial trier of fact is bound. Thus, unless they have reached their decision without regard to the evidence or some of it, or have done so in a perverse or capricious manner, the Umpire has no jurisdiction to intervene. I can find no such grounds to say that the Board so acted in this case or in any of the others. The appellant fails on this ground of her appeal.

There was thus, evidence which the Board was entitled to accept and unless it could be shown to have committed an error in so doing, reviewable pursuant to section 80(c) of the Act, I am not empowered to act. Since no such error was shown and no evidence challenging the identification, other than the appellants' denial in some cases, I can find no merit in this ground of appeal.

Whether or not these flaws in the declarations were called to the attention of the Board, I do not know but I do not think that it matters. These are not criminal matters where proof of identification must be made beyond reasonable doubt. Only proof on a balance of probabilities is required. I cannot say that the rather apparent flaws in spelling of names, overstrikes and other flaws escaped the Board's attention. The fact is that in every case the identification was buttressed by correct social security numbers of each appellant. Moreover, the Board understood who had the onus of proof and concluded that, notwithstanding the flaws in the statutory declarations, on a balance of probabilities the Appellants had been properly identified by the declarations and by the other supporting evidence including the S.I.N. numbers. I have no difficulty in finding that no reviewable error has been committed in so finding.

It was counsel's contention that the Board had a duty to ensure that a party to a proceeding, in this case any of the Appellants, understood what was going on at the hearing. In all fifteen of these appeals the Board had failed to discharge that duty. 

According to counsel, three appellants Jaswant Dhillon, Kuldip Grewal and one other whose name I did not obtain, appeared in person, unrepresented by counsel and without an interpreter. The Board, he says, made no effort to ensure that they understood the proceedings. Five others were accompanied by their own interpreters but again, the Board made no effort to ascertain their competency. I take it that the remainder of the fifteen were unaccompanied by interpreters but were represented by counsel. 

Several things are apparent. 

First, there is no evidence that the Board either was asked to, or voluntarily undertook, (a) to satisfy themselves that those not accompanied by interpreters understood the proceedings and the testimony or, (b) to satisfy themselves as to the competency of the interpreters who had been brought by five of the appellants to assist them. 

Second, counsel was completely unable to point to any objections raised by any party present or any counsel to any party raising the issues of (a) the absence of interpreters; (b) of the party's failure to understand what was going on; or (c) the allegation of faulty interpretation by those interpreters who were translating.

Third, I attach some significance to the fact that notwithstanding the crucial importance of the submissions they were not raised early in the hearing of the appeals before me, as one would expect, but were put over to be argued after completion of all other submissions both by counsel for the Appellants and the Respondent including the Appellants' reply. I gained the strong impression that the issue was very much an after thought and totally devoid of a single example of misinterpretation, failure to understand because of unfamiliarity with the language even where represented by counsel, or the general competency in English of any one or more of the appellants or their interpreters.

It is not without significance that each of two decisions of the Federal Court of Appeal and one of the Trial Division relied upon by counsel, were in immigration cases where the applicants were seeking admission to Canada, were unfamiliar with the English language and had expressed to the tribunals before whom they were appearing their problems with the quality of the translations by the interpreters. For example, in the case of Me Wei Ming v M.E.I. (1990) 2 F.C. 336 MacGuigan, J.A. speaking on behalf of the panel (of which I happened to be the presiding member) pointed out that the objection raised by the applicant's counsel was a serious one and that "Once raised, it required resolution." (emphasis added) Resolution meant that the tribunal would have the responsibility to assure itself that the interpretation was competent in such circumstances.

Here, as I have said, not one appellant nor any counsel either appears to have questioned the absence of an interpreter or the competence of those who did appear on behalf of some appellants. Since I am unaware of any jurisprudence, and none has been referred to me, which, without any indication or hint of the need for the services of an interpreter in any proceeding, imposes the positive, prior obligation on a Tribunal in a civil matter as opposed to a criminal one, at all times to have the services of an interpreter available, competent in the language of choice of the person appearing before it. In the circumstances here, as above referred to, I am unable to agree that any of the appellants were deprived of a fundamental right to an interpreter. This view is reinforced by the fact that all of the appellants had been in the country for several years, had been able to complete the requisite documents to obtain unemployment insurance benefits and to complete reporting cards for at least two separate benefit periods. It would be manifestly unfair in such circumstances and in every case for Boards of Referees to be required to assume that interpretation services were required to be available to appellants to them without request for them.

I have not overlooked the fact that, apparently, in those cases where interpreters accompanied appellants the Board failed to ascertain their competency. Again, where the interpreter is the selectee of the appellant, it should be safe to assume that his or her competency has been acknowledged and accepted by the appellant unless during the course of the proceedings that fact is questioned. Such was not the case here.

Accordingly, I am of the opinion that this ground of appeal also fails.

For all of the foregoing reasons the appeal on all grounds is dismissed.

Before leaving the matter I should point out that counsel for the Commission made the following concessions.

are beyond the limitation period.

to two periods. 

URIE J.,UMPIRE 

Ottawa, Ontario

December 1, 1994