CORRESPONDING FEDERAL COURT DECISION: A-636-85
TRANSLATION
IN THE MATTER OF THE UNEMPLOYMENT INSURANCE ACT, 1971
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IN THE MATTER of a claim for benefits by
MARIE-LUCIENNE JOSEPH
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IN THE MATTER of an appeal to an Umpire by the claimant
from a decision by the Board of Referees given
on April 25, 1984 in Montreal, Quebec
DECISION
DUBINSKY, UMPIRE:
I heard this appeal from a unanimous decision of the board of referees in Montreal, Quebec on April 16, 1985. The appellant, Marie-Lucienne Joseph, hereinafter called the claimant, was present and was represented by Georges Campeau, LL. L. The Canada Employment and Immigration Commission, hereinafter called the Commission, was represented by Johanne Levasseur, LL. L. of the Department of Justice in Ottawa.
The claimant received a Notice of Disqualification dated February 28, 1984. I shall quote the relevant passages from this document (Exhibit 7):
The information accompanying your claim for benefit shows that you lost your employment with Canapar because of misconduct. Consequently, you are disqualified from receiving benefits from January 29, 1984 for a period of 6 weeks during which benefits would otherwise have been payable.
The claimant subsequently appealed to a board of referees, as appears in the notice of appeal dated March 22, 1984 and the board of referees met, as was stated in the style of cause, at Montreal, Quebec, on April 25, 1984. The board's unanimous decision was as follows:
Issue:
Did the claimant lose her employment by reason of her misconduct?
At the hearing this morning Mr. Campeau's principal argument was that the Commission had not proved the misconduct.
After hearing the arguments of the representative and carefully examining the record, the board of referees feels that the employer explained the reasons for the dismissal very well in Exhibit 6. We examined the claimant on this subject and her answers were very vague.
The board of referees has concluded that the claimant raised reasons for her dismissal other than those in Exhibit 6 only after her notice of disqualification. Consequently the board of referees affirms the decision of the official dated February 28 and UNANIMOUSLY dismisses the appeal.
UNANIMOUSLY DECISION"
The claimant decided to appeal from this decision on the basis of paragraphs (b) and (c) of section 95 of the Unemployment Insurance Act, 1971 and at the appointed time the case came for hearing before me sitting as an Umpire.
I carefully considered Mr. Campeau's oral arguments and I also studied very carefully all the documents in the record. In particular, I considered the Observations of the Commission to the board of referees and the letters and arguments submitted by and on behalf of the claimant.
In my judgment, the facts and the question of law raised in this case have been discussed many times by other judges and myself in the decisions that are relevant to this case. I should like to ask the Registrar to send counsel for the claimant a copy of my decision in Michel Hébert, CUB 10476, dated April 25, 1985, in which I dismissed the claimant's appeal and, for the reasons stated in Hébert, I also dismiss the appeal of the claimant in the instant case.
I shall now turn to the important section 95 of the Unemployment Insurance Act, 1971, which has read as follows since May 1, 1980:
95. An appeal lies as of right to an umpire in the manner prescribed from any decision or order of a board of referees at the instance of the Commission, a claimant, an employer or an association of which the claimant or employer is a member, on the grounds that
(a) the board of referees failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
(b) the board of referees erred in law in making its decision or order, whether or not the error appears on the face of the record; or
(c) the board of referees based its decision or order on an erroneous finding of fact that it made in a perverse and capricious manner or without regard for the material before it.
First, I wish to say that there is a constant and impressive number of precedent-setting cases in which it is ruled that an Umpire may not quash the decision of a board of referees or reject or vary in any way the findings of the board unless this decision or these findings clearly seem false in light of the record as a whole. Even if I had been tempted to agree with the claimant (which was not the case here), I could not have allowed her appeal unless it was clearly covered by one of the grounds stated in the three paragraphs of section 95.
Having examined the record as a whole, I do not have a shadow of a doubt that the claimant had sufficient opportunity to make her case. She was present at the hearing and was represented by Mr. Campeau. There was nothing to indicate that the board was not impartial in any way whatsoever. The decision it rendered was within the jurisdiction conferred on it by the Act and the factors on which it based its decision were to be found in the material before the board. It did not refuse to exercise its jurisdiction. For these reasons there was no ground of appeal under paragraph 95(a).
Second, with respect to paragraph (b) it is abundantly clear that the board of referees did not render a decision that was erroneous in law under the Unemployment Insurance Act, 1971 or the related case law.
Third, with respect to paragraph (c) it is not possible, in my view, to find that the board based its decision on an erroneous finding of fact that it made in a perverse and capricious manner or without regard for the material before it. Under section 95 of the Act, the Umpire must be convinced that the members of the board drew their conclusions in a clearly unreasonable manner and without regard to all the evidence adduced before them. It is quite clear that this was not the case here and there was no ground of appeal under paragraph 95(c).
I believe, however, as I have often noted, that a six-week disqualification under section 43(1) of the Act is the maximum that should be imposed, and then only after mature reflection, by the insurance officer recommending it as a punitive measure against a claimant who leaves his employment on impulse and without considering the consequences or creates a situation leading to his dismissal since, in circumstances like this, he should not be entitled to receive unemployment insurance benefits without taking into account the seriousness of his error. On the other hand, when the lack of justification is no more than what might be called an error of judgment by a claimant, as in the instant case, it is necessary to impose a less harsh disqualification. I am convinced that at the time of her voluntary departure, with which I am dealing in this case, there were extenuating circumstances. Thus, while upholding the unanimous decision of the board of referees in principle, I have reduced the disqualification from six to two weeks.
This written decision merely confirms the oral decision rendered in this case at Montreal, Quebec, on April 16, 1985.
HALIFAX,
June 17, 1985
J.L. Dubinsky
UMPIRE
2011-01-10