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  • CUB 39868

    IN THE MATTER OF THE Unemployment Insurance Act

    - and -

    IN THE MATTER OF a claim by
    G. Lynn SIEMENS

    - and -

    IN THE MATTER OF an appeal to an Umpire by the
    employer from a decision of the Board of Referees given
    at New Westminster, British Columbia, on July 25, 1996.

    D E C l S I O N

    MacKAY, J.:

    This is an appeal by the employer of a decision by the Board of Referees dated July 25, 1996. The employer seeks a review of that decision on the basis of subsection 80(c) of the Unemployment Insurance Act, R.S.C. 1985, c. U-1, as amended (hereafter "the Act"), as it applied at all relevant times.


    The claimant was employed by Renascent Automotive Ltd., full-time between March 24, 1995 and October 27, 1995, and periodically thereafter until April 16, 1996. At issue in this matter is whether the severance of the employment relationship in April, 1996, stemmed from the claimant being fired or from his quitting employment. According to the claimant, he was told by one of the employer-owners of Renascent that he was not working fast enough, prompting the claimant to retort that if the employer believed he was not good enough, to lay him off. The employer then allegedly fired the claimant. Subsequently, when the claimant sought severance pay, a second employer-owner refused on the basis that the claimant had quit and not been fired.

    For his part, the first employer says that the claimant was not fired, but merely threatened with dismissal should his pace not improve. The claimant then left without speaking to the second employer who was elsewhere on the premises. When he called concerning severance pay, the second employer told him he was not entitled to this pay because he had quit. The first employer later spoke to the claimant to reiterate that he was not entitled to severance pay and that his job was still available should he wish to return.

    After he applied for benefits under the Act, the Commission inquired and received information from his former employer. On June 17, 1996, the Commission disqualified the claimant from benefits beginning April 15, 1996, on the basis that he had quit without just cause. The claimant appealed this ruling to the Board of Referees and a hearing was held on July 25, 1996. At issue before the Board was whether the claimant had left his employment voluntarily within the meaning of section 28 of the Act. In allowing the claimant's appeal, the Board held as follows:

    Both the claimant and employer seem credible but based on the information that came forward from the hearing, benefit of the doubt applies and the Board allows this appeal based on the benefit of the doubt...On the question of Voluntary Leaving or Misconduct, the employer and the claimant both assumed the opposite view of whether a firing or dismissal took place...Where benefit of the doubt is concerned, the employer stated to the Board that never in the 13 months had the claimant ever been given either a written or verbal warning.

    On September 26, 1996, the employer appealed the Board's decision to the Umpire, alleging, inter alia that the claimant should have spoken to the second employer if he had a problem with the first employer, that the employers provided a stable working environment, that there was strong demand for skilled individuals in the body shop industry, and that the claimant had, on several past occasions, turned down employment to stay on unemployment Insurance.


    An Umpire can intervene in a Board's finding of fact only where there is no evidence to support the Board's findings or where the board clearly ignored important evidence or seriously misconstrued this evidences 1 or based its decision on a perverse finding of facts. 2 An Umpire must consider whether, on the evidence before it, a Board could reasonably have reached the conclusion it did, even if the Umpire might have reached a different conclusion. 3 An Umpire would be exceeding his or her jurisdiction if he or she were to overturn a Board's finding of fact or substitute his or her opinion for that of the Board, simply because he or she viewed the evidence differently. 4

    In the case at bar, I believe that no ground exists to interfere with the Board's decision. While the Board found both the employer and the claimant credible, it concluded that in the circumstances the benefit of the doubt should be given to the claimant. The Board referred specifically to the assertion, made by the employer at the hearing, that the claimant had never been given either a written or verbal warning about his work during his entire tenure at Renascent Automotive. Implicitly, this appears to have been taken as countering the employer's expressed concern, at the time of the incident, about the lack of speed or productivity in the claimant's work. That seemed to underlie its conclusion that the claimant, whose work appears to have been satisfactory over more than a year, was entitle to be believed, and that he was fired, in the absence of evidence supporting the employer's version that he had quit voluntarily. I am unable to find that the Board based its decision on "an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it". The Board was entitled to find the employer's assertion supportive of the claimant's version of events and made its decision accordingly. Further, the invocation of "benefit of the doubt" in this case was not an error of law as specific statutory authority for the Board to rely on the "benefit of the doubt", in weighing competing claims regarding whether a claimant left work voluntarily, is set out in s-s.40(1.1), which reads as follows:

    Notwithstanding paragraph 1(b), the Commission shall give the benefit of the doubt to the claimant on the issue of whether any circumstances or conditions exist that have the effect of disentitling the claimant under section 28.1, 28.2 or 28.3 or disqualifying the claimant under section 28, if the evidence on each side of the issue is equally balanced.

    For the reasons here set out, the employer's appeal is dismissed.

    W. Andrew MacKay


    OTTAWA, Ontario
    December 5, 1997.

    1 CUB 18993

    2 Marchand v. C.E.I.C. (July 21, 1989), Doc. No. A-148-88 (F.C.A.).

    3 Canada (Attorney General) v. Feere (January 23, 1995), No. A-87-94, [1995] F.C.J. No. 109 (F.C.A.).

    4 Canada (Attorney General) v. Verreault (1986), 86 N.R. 389, [1986] F.C.J. No. 657 (F.C.A.); Canada (Attorney General) v. Ash (1994), 178 N.R.73, [1994] F.C.J. No. 1716 (F.C.A.).