CUB 53044

IN THE MATTER OF THE EMPLOYMENT INSURANCE ACT

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IN THE MATTER OF A CLAIM BY DAVID SOMER

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IN THE MATTER OF AN APPEAL BY THE CLAIMANT
FROM A DECISION OF A BOARD OF REFEREES HELD AT
NORTH YORK, ONTARIO ON OCTOBER 4, 2000

Heard in Toronto on Wednesday, November 7, 2001

Before The Honourable John J. Urie

DECISION

The Appellant appeals the decision of the Board of Referees dated October 4, 2000 upholding a disqualification under Sections 29 and 30 of the

This is a second appeal to an Umpire from the decision of the Board of Referees in this matter. The Umpire, in a decision dated July 16, 2000, concluded that the first Board of Referees had failed to comply with the provisions of subsection 114(3) of the Act by failing to include a statement of its findings and the material facts on which it based its decision.

He returned the matter to a new Board of Referees since, due to the absence of adequate findings of fact by the Board, he was unable to render the decision that the Board ought to have rendered.

In this Appeal, the facts appearing in the record may be briefly stated as follows. The Appellant had been employed as a traffic field investigator for the Municipality of Metropolitan Toronto for approximately nine years.

At the same time, he was an elected member of the Toronto Urban Aboriginal Council, which acts as a political voice for urban aboriginal people. In that capacity, he wished to take three days off work to attend the National Chiefs' Assembly which was being held in Toronto the week of March 17, 1997. For that purpose, he says, he approached his immediate superior, Peter Lasagna, requesting three days off work the following week to attend the Chiefs' Assembly. He says that he was advised by Mr. Lasagna to complete a vacation request form which the latter would pick up later. Mr. Lasagna apparently did not indicate to Mr. Somer that there would be a problem with the requested leave. Furthermore, the Appellant believed, he says, that he had, in fact, received such approval. Mr. Lasagna denies that he had given it.

Exhibit 5.4 is the completed vacation request form prepared by Mr. Somer on March 13, 1997. He says that he kept the vacation request form with him in order to give it to Mr. Lasagna upon his return. Unfortunately, the latter did not return to the work site on Thursday, March 13, 1997.

Friday, March 14, 1997 was a scheduled day off for the traffic field investigators, including the Appellant. On Monday, March 17, 1997, the Appellant reported for work but Mr. Lasagna did not attend at the work site so that the Appellant was unable to present the request to him.

The Appellant was a field worker who worked from his car at various job sites around the city. He did not attend at his employer's office on a regular basis, as a result of which his ability to communicate with his supervisor was limited and he was thus unable to submit the vacation request form to him prior to his requested time off.

On Tuesday, March 18, 1997, the first day of the Chiefs' Assembly, the Appellant says that he telephoned Mr. Lasagna in the morning, but was unable to speak to him personally. He says that he left him a voicemail reminding him that he was taking time off to attend the Chiefs' Assembly, beginning that day. In fact, he attended the assembly as well on March 19 and 20, 1997. On Friday, March 21, 1997, Mr. Somer telephoned Mr. Lasagna to obtain his work site location for the following week. He was instructed to attend a meeting with Mr. Lasagna and his supervisor on Monday, March 24, 1997. He did so and, at that time, was advised that his employment was being terminated for failure to attend work on March 19 and 20, 1997, but not March 18, 1997 because it was recognized as being the only approved vacation day. The Appellant's application for employment insurance benefits was refused and he was advised that he was not entitled to benefits because he had lost his job on March 24, 1997 due to misconduct. (Exhibit 8). He appealed this ruling and the Board dismissed his appeal finding that "the Claimant lost his employment as a result of his own misconduct, in requesting only one vacation day, but in fact, taking three days". That decision was appealed to an Umpire who, as earlier stated, returned the matter to a newly constituted Board.

The newly constituted Board of Referees as noted, dismissed the Appellant's Appeal.

In his submissions, the counsel for the Appellant defined the issues in the Appeal for me as follows:

(a) The Board based its decision on an erroneous finding of fact, which it made without regard to the evidence before it. In particular, the Board erred in finding that the Appellant only requested one vacation day when the evidence before the Board showed that three days had originally been requested;

(b) The Board erred in law in providing insufficient reasons that do not include a statement of the findings of the Board on questions of fact material to the decision, as required by ss. 114(3) of the Act; and,

(c) The Board erred in failing to apply the appropriate definition of "misconduct", which includes an aspect of wilfulness, despite clear instructions from the Umpire.

The Board of Referees rendered its decision on October 4, 2000. The material parts of the decision in whole read as follows:

REASONING AND STATEMENTS OF THE FINDING BOARD

The claimant attended the hearing accompanied by a representative. The hearing was taped. David Somer had requested 3 days vacation on a prescribed form (Exhibit 5.4) to enable him to attend a chiefs conference of Assembly of First nations on March 18, 19, 20, 1997. The supervisor, Mr. Lasagna, disputes that this request was made on Thursday March 13. Mr. Lasagna did not say yes or no to this request.

Mr. Somer does not work on site (not at the employers office) he works out of his car.

His employment was terminated on March 21, 1997 (Exhibit 5.3). Mr. Eyolson stated that there was no opportunity to discuss this case with Mr. Lasagna. Mr. Eyolson questioned whether the claimant's conduct was wilful misconduct. Mr. Eyolson submitted in his evidence CUB 30010, and CUB 30162 to establish "wilful misconduct" by definition.

Mr. Eyolson indicated that there was misunderstanding - re: vacation time off and or as wilful misconduct. (re: Section 29 and 30 of the Employment Insurance Act.)

The claimant stated that information on Exhibit 7 is incorrect. He claimed he requested 3 days off not only one day. (Exhibit 5.3) The claimant disputes his supervisors re- call (as per Exhibit 7); he also did not comment on documented procedures and practice within the transportation department (45.8); and as per Exhibit 5.3 the pay for 1 day's vacation requested was for March 18 only and was paid.

He failed to report to work on March 19-20. There is no record of the employer receiving Exhibit 5.4.

DECISION

The Board carefully reviewed all the evidence and unanimously DENIED this appeal.

At the opening of the Appeal, counsel for the Commission quite fairly advised the Court that the Commission could not support the decision rendered by the Board of Referees and conceded that it could not stand. Apart from the fact that it had attempted to carry out the instructions of the previous Umpire, it was so deficient in all respects that, as above-stated, it could not be supported. She, however, requested that the matter be decided by me, rather than having it returned to a new Board of Referees, arguing that I had the jurisdiction to render the decision which ought to have been made because a further delay would be unfair to the parties and costly to both.

I reserved my decision as to the question of jurisdiction and ordered that the Appeal be argued on the basis that I did have such jurisdiction.

Issue 1 - Erroneous Finding of Facts

The first two issues identified by counsel for the Appellant are intertwined and thus will be dealt with as one, although under their separate headings. Subsection 115(2)(c) of the Employment Insurance Act provides as one of only three grounds of appeal that the Board of Referees based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner, or without regard to the material before it. The Appellant alleges in his brief "that the Board erred in what appears to be its finding that Mr. Somer requested only one day of vacation but took three days when a more reasonable interpretation of the evidence before the Board is that Mr. Somer had requested three days of vacation".

Before dealing with that particular submission, it should be observed that it is quite arguable that the decision does not make any findings of fact at all and that what the Board did was merely recite some of the facts from the testimony of the Appellant and from the written record in respect of the Respondent's position since no oral evidence was adduced from witnesses of the employer or of the Commission. Neither did the Board make any findings as to credibility of witnesses or which evidence they preferred in the case of disputed evidence. All they said, as noted earlier, is that they had carefully reviewed all of the evidence and unanimously denied the Appeal.

To return to the argument of Appellant's counsel, he takes the position that the Board failed to appreciate the evidence of the Appellant that he had on two occasions requested a 3 day vacation the first on March 13th orally to his supervisor and the second on March 18th when he left his supervisor a telephone voice message reminding him of his vacation plans. He also points out that no representative of the employer testified at the hearing before the Board.

With respect, those submissions do not provide a basis for concluding that the Board's finding was erroneous or that it was made in a perverse or capricious manner, or without regard for the material before it. In fact, the reasons of the Board clearly indicate that the members did have regard to the oral evidence of the Appellant and the documentary evidence tendered by the Commission denying that Mr. Lasagna (the supervisor) had been requested to approve the Appellant's three day vacation applied for. Quite evidently, the Board chose to accept Mr. Lasagna's version of what transpired, as they were entitled to do in discharging their duties.

Unfortunately, in doing so, the Board, in its reasons, failed to disclose the basis upon which they made their choice. The jurisprudence is replete with directions that it is incumbent on a Board of Referees, when there is contradictory evidence and differing views thereon between the parties as to questions of fact, that it provide reasons for its preference for one version over the other. That is especially so if the preference is based on the Board's assessment of the credibility of those providing the testimony. Here the Board made no reference to their reason or reasons for preferring the employer's evidence (which was documentary) to that of the Appellant (which was oral). In that the Board, in my view, erred.

There is an additional reason for having concluded that the decision of the Board of Referees cannot stand. That is raised in issue II in its failure to give adequate reasons for its decision.

Issue II - Failure to Give Adequate Reasons for its Decision

In Parks v. Attorney General of Canada (1998), 228 N.R. 130 at p.131, Strayer J.A., in an oral judgment said as follows:

We are all in agreement that the Board erred in law in failing to comply adequately with s. 79(2). Specifically, we are of the view that it was incumbent on the Board to state, at least briefly, that it rejected critical parts of the evidence of the Applicant on grounds of credibility, and why it did so. In this case, there was before the Board much written material from the employer of a hearsay nature. The Affidavit evidence and oral statements of the claimant before the Board conflicted in various respects with this material. The Board simply states its conclusions without explaining why it preferred one version of events to the other.

While we do not interpret s. 79(2) to require a detailed statement of findings of fact, we are of the view, that the Board of Referees, to comply with that subsection must when there is an issue of credibility state at least, briefly, as part of its "findings" ... on questions of fact material to the decision. That it rejects certain evidence on this basis and why, when it fails to do so, it errs in law.

That is wholly applicable on the facts of this case and is sufficient in itself to allow the appeal.

Issue III - The Board Erred in Failing to Apply the Appropriate Definition of Misconduct

The Board failed in its reasons to direct their collective minds to the issue of "misconduct", having regard to the meaning of that term in the Employment Insurance Act as interpreted by the courts, despite the fact that the Umpire on the first Appeal had clearly directed the new Board of Referees to do so.

Whether the actions of an employee constitute "misconduct" is a question of mixed law and fact. The interpretation of the term is a question of law. Whether the actions complained of in a given situation fall within the definition is a question of fact.

In the leading case of The Attorney General of Canada v. Tucker (F.C.A.) A.A. - 381-85, the Federal Court of Appeal approved as correct, Reed J.A.'s statement in the Trial Division in the same case that:

As in the Tucker case, no such wilfulness was shown to exist in the circumstances of this case. In any event, the Board of Referees wholly disregarded its obligation to relate the conduct of the Appellant which resulted in his termination, to the requirement of a finding of misconduct by the Board in determining the result of the Appeal. While it did make reference to the Appellant's counsel having indicated there was "misunderstanding - re: vacation time off and/or his wilful misconduct", it is all that the Board said and it is clearly insufficient, in light of the jurisprudence, to support the decision.

By its failure to express its views on the question of wilfulness, the Board of Referees erred in law and on that ground too the Appeal must be supported.

Counsel for both the Appellant and the Respondent have requested that I exercise my discretion under Section 117(b) of the Employment Insurance Act to give the decision that the Board of Referees should have given. They point out that this matter has now been before two Boards of Referees and that for me to refer the matter back to a third Board of Referees would not only cause extensive delays but would also be costly and unfair to both parties. In their submissions, all the facts required for a proper decision to be made are before me, no further evidence need be adduced, and, since I have the jurisdiction to make the decision which the Board should have made, that I should do so. I am in agreement with that submission and, as a result, the decision of the Board of Referees, in my opinion, should be set aside. In rendering the decision that the Board of Referees ought to have rendered, the Appeal is allowed and the Commission is directed to pay the insurance benefits to which the Appellant was entitled.

"John J. Urie"

The Honourable John J. Urie, Umpire

December 11, 2001