IN THE MATTER of the EMPLOYMENT INSURANCE ACT
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IN THE MATTER of a claim by
JOYCE FYNN
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IN THE MATTER of an appeal to an Umpire by the Canada Employment
Insurance Commission from a decision by the Board of Referees given on
January 17, 2002, at Ottawa, Ontario
DECISION
GUY GOULARD, Umpire
The claimant worked for CCHSA from September 18, 2000 until September 28, 2001. On October 15, 2001, she applied for employment insurance benefits indicating that she left her employment because her contract expired and she had not been offered a new one (Exhibit 2-4). An initial claim was established effective September 30, 2001. The Commission later determined that the claimant had voluntarily left her employment without just cause. The Commission imposed an indefinite disentitlement to benefits.
The claimant appealed the Commission's decision to the Board of Referees who, in a unanimous decision, allowed the appeal. The Commission appealed the Board's decision. This appeal was heard in Ottawa, Ontario, on December 6, 2002. The claimant was present. The Commission was represented by Ms. Elizabeth Richards.
The Board's decision reads, in part, as follows:
"The claimant presented a rather unusual set of facts. She was a contract employee who the employer said declined a contract renewal (see Exhibits 3 and 6). She said this was not true and that although she was told there would be a renewal contract, no such contract was ever presented by the time she quit. She said she persistently asked for this new contract but nothing was presented. In her view, there was a new Assistant Executive Director who was 'cleaning house'. Her direct supervisor, Ms. Gordon had just been fired (along with another employee) and escorted off the premises. Her perception was that the contract would not be renewed or that if renewed, it would be only for a couple of weeks to train a replacement.
The employer did not attend the hearing and presented very little evidence to refute the claimant's version of facts other than what appears in Exhibits 3 and 6.
The Board had no difficulty accepting the claimant's evicence as entirely credible. We find she acted as a reasonable person would have in the same circumstances. She was working under a written contract and had a right to reasonably expect that if her work was to continue beyond the end of the contract, a new one would be presented. This did not happen. At best she was given only a vague statement regarding some continued employment. We find she reasonably concluded that she was merely being used to train someone and then be immediately let go. Although we find as a fact that she did quit this job, she had just cause for so doing."
The Commission argued that the Board erred in its interpretation of the facts before it. The Commission referred to Exhibits 5 and 6 where it is indicated that the employer had stated orally that they would extend the claimant's contract but the paper work had not been completed. The Commission argued that the Board could not disregard this evidence. I am satisfied that the Board did consider this evidence and accepted the claimant's evidence that she did not believe she would have been extended, and, if so, it would have only been for a few weeks.
The Commission further submitted that the Board had failed to consider whether the claimant's only reasonable alternative was to leave her employment at the time she did. The Board, I find, did consider that the claimant acted reasonably taking in consideration all the circumstances. She did not have a new contract, did not believe she would be extended for any long term period and had already started looking for other employment.
The jurisprudence has unequivocally established that the Board of Referees is the primary tribunal for the finding of facts in employment insurance cases. In the Guay case (A-1036-96), Mr. Justice Marceau of the Federal Court of Appeal wrote:
"We are all of the opinion, after this lengthy exchange with counsel, that this application for judicial review of a decision of an umpire acting under the authority of the Unemployment Insurance Act is entitled to succeed. It is our view, in fact. that in contradicting as he did the unanimous decision of the Board of Referees, the umpire failed to remain within the limits of his power of review and supervision under the Act.
(...)
In any event, it is the Board of Referees "the pivot of the entire system put in place by the Act for the purpose of verifying and interpreting the facts" that must make this assessment.
(...)
The umpire. in our opinion, could not dismiss this finding by the Board solely on the basis of reasoning that, when all is said and done, simply gives unfettered priority to the views of the employer."
And in the Ash decision (A-115-94), Justice Desjardins of the Federal Court of Appeal, in dealing with the judicial review of an Umpire's decision on appeal from a majority decision by a Board of Referees, added:
"It is evident from the board's decision that both the majority and minority view had been canvassed. Although the majority could have ruled otherwise, they chose to disbelieve the respondent with regard to health as being the cause for leaving his employment. The umpire could not substitute her opinion for that of the majority. The board members were in the best position and had the best opportunity to assess the evidence and make findings with regard to credibility..."
An Umpire's jurisdiction is limited by subsection 115(2) of the Employment Insurance Act. Unless the Board of Referees failed to observe a principle of natural justice, erred in law or based its decision on an erroneous finding of fact made in a perverse manner or without regard for the material before it, the Umpire is required to dismiss the appeal.
I am unable to find that the Board of Referees made its decision in a perverse manner or without regard for the material before it. The Board did consider all the evidence available, including the employer's comments and concluded that the claimant left because her contract had not been renewed and she did not expect that it would be renewed.
Accordingly, the appeal is dismissed.
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UMPIRE
OTTAWA, Ontario
January 10, 2003