Digest of Benefit Entitlement Principles   Chapter 21 - Section 2

21.2.0 Proving the facts

21.2.1 The three-step process

When adjudicating claims for unemployment benefits, we must apply the law to the facts of a particular situation. To do this, it is necessary to establish or prove the facts in the case. This process involves three steps:

1. gathering all available evidence
2. evaluating the evidence, and
3. deciding if the stated facts have been proven

21.2.2 Gathering all available evidence

Because evidence is any information that tends to prove or disprove a point, it can take many forms such as:

• statements from individuals with direct knowledge; from individuals not directly involved; or of a specialized or technical nature
• any written instrument including documents and records such as letters, notes, contracts, collective agreements

We deal specifically with the administration of the Employment Insurance Act; therefore the scope of evidence available to us is limited. However, some of the sources of evidence that can be used when investigating a contentious issue in relation to a claim for unemployment benefits include:

21.2.3 Evaluating the evidence

In order to make a decision, the agent must assess the credibility or believability of the evidence to decide how much weight to place on the information and the impact it will have on the final decision.

The weight of evidence cannot be determined by arbitrary rules, because it depends on common sense, logic and experience.

Direct evidence, such as information provided by someone with first hand knowledge should be given more weight than information provided by someone with only second- or third-hand knowledge of the facts. Indirect evidence should not be used in isolation unless there is no direct evidence available and in general should be used just to confirm and strengthen the case.

The following are general guidelines that may help in assessing the weight to be given to evidence. The most reliable form of evidence is an admission by the claimant of the existence of a fact that is exculpatory or prejudicial. However, in the case of misconduct or voluntary leaving a decision cannot be based solely on the claimant's statement. The agent must give the employer the opportunity to provide information as to the reasons for the loss of employment; and where any such information is provided, take it into account to determine the claim ^{Footnote 1} . The three-step procedure ^{Footnote 2} with respect to the gathering and consideration of evidence must be followed before making a decision on entitlement.

Faced with conflicting statements from a claimant, the tendency should be to give more weight, or credibility to the claimant's first statement, especially when the first statement gave rise to a disentitlement. There is no hard and fast rule for automatically giving more credence to the first statement, so the agent must consider and weigh all evidence, and the conditions under which the evidence was given in each case.

There is a difference between changing a statement and trying to clarify or expand on a prior statement. Often a claimant will attempt to clarify a prior statement that was brief or vague, or given in response to a general question; and people do sometimes change their minds. The claimant's subsequent statement should be accepted when it is credible and reasonable.

Information from a source totally independent of the parties involved is usually more credible than that from someone who is related to one or other of the parties, or from someone who has something to gain or lose depending on the outcome. For example: payroll department, worker's compensation.

While the agent should look at all available evidence, any information that is irrelevant to the issue at hand, or evidence that is so weak as to be ineffective, should be ruled out.

For evidence to be relevant it must be applicable to the issue and there must be a logical relationship; it must have a bearing on the question at issue. Consideration should not be given to irrelevant facts.

The degree of relevancy is important and it follows that the more relevant the evidence, the more weight is placed on it. The most acceptable test of relevancy is the question: does the evidence offered render the proposition more probable than it would be without the evidence?

When you have evidence or information on a case and you think there may be additional evidence that is more credible, more relevant, or more direct and it is reasonably available, then steps to obtain that evidence must be taken.

Increased credibility is given to a statement which was written and signed by the person giving the information because of the possibility of a misunderstanding when one party records or summarizes another's statement. Our clients should therefore be encouraged to write their own statements when possible. This practice may not always be practical especially if claim processing time will be impeded. However, it is especially advisable in those cases where there are conflicting statements, or where there are inconsistencies in the statements made.

A statement written by the claimant will be less vulnerable to allegations of bias or partiality against the agent. Where this is not possible the credibility of a statement taken by the agent can be enhanced by:

• advising the claimant as to the purpose of the interview, i.e., to determine his or her initial or continuing entitlement to benefit
• advising the claimant that a decision will be made on the claim based on the information given
• giving the claimant the opportunity to raise objections or provide clarification as required and when possible,
• giving the claimant the opportunity to sign the statement indicating that all of the above took place and that he or she agrees with the statement as written. Otherwise the agent should document the file indicating that the above took place.

These actions will lend support to the decision of the Commission and at the same time the claimant is less likely to retract the statement at a later date.

21.2.4 Deciding if the stated facts have been proven

After gathering and evaluating the available information, the agent will decide in favour of the version of the facts, which seems most credible given the circumstances. In some cases, the accounts of the parties are equally credible, making it impossible to choose one version over another. In such cases, preference is given to the version favourable to the claimant.

Opinions, comments and interpretations of the evidence are often presented as facts and it is not uncommon for agents to mistake these for facts. Care should be taken to ensure that the facts and not the opinions are examined. There is an exception to this rule, in the case of an opinion given by an expert on some technical or professional point.

For many years the terms "burden of proof" and "degree of proof" were used to define who must prove which facts. These phrases simply mean that the claimant must show that no circumstances or conditions exist that have the effect of disentitling or disqualifying him ^{Footnote 3} . Although this is a legal requirement of the claimant, the Commission will gather all information relevant to the case. The agent will only make a decision whether or not to allow payment, after a thorough review of all facts obtained from all parties to the case.

21.2.5 Balance of probabilities

The Federal Court of Appeal has decided that the standard for the discharge of the burden of proof by both the claimant and the Commission is the balance of probabilities ^{Footnote 4} . This standard should therefore be applied to all questions on entitlement to EI benefits.

When the evidence is such that the agent can say, I think it more probable than not, the case has been proven; otherwise it has not. It is not necessary that a statement or case is proven beyond a reasonable doubt; it is only necessary that the assertion be more credible and convincing than the alternative.