CUB 59135

GUY GOULARD, Umpire

The claimant had worked for the Centre de soins prolongés Place d'Art from July 14, 2000, to August 13, 2002. He submitted a claim for benefits on September 6, 2002, and a benefit period was established, effective August 18, 2002. The Commission subsequently determined that the claimant had lost his job by reason of his own misconduct and imposed an indefinite disqualification as of August 18, 2002.

The claimant appealed the Commission's decision to a Board of Referees, which allowed the appeal. The employer appealed the Board's decision to an Umpire. The appeal was scheduled to be heard at Montreal, Quebec, on September 24, 2003. The claimant and the employer, who had been sent notice of the hearing, were not present. The Commission indicated that it would not participate in the appeal hearing.

The claimant and the employer had not attended the hearing before the Board of Referees, which had rendered a decision based on the evidence in the docket. The Board of Referees had reviewed the evidence and come to the following conclusion:

The Board of Referees believes that, as provided for in the Act, the appellant must be given the benefit of the doubt in light of the contradictory versions reported above, especially since the Board of Referees has doubts about the employer's reasons for firing the employee and, above all, the employer's reason for refusing to produce the disciplinary notices, particularly since the burden of proving the claimant's misconduct lies on the employer and the Commission.

Furthermore, the Board of Referees considers that, in the case at hand, the appellant has shown that he had good cause for being late, since his employer had asked him to work overtime after his regular shift, and nothing in the proof submitted by the parties allows us to conclude that there was misconduct on the part of the appellant.

In his letter of appeal to the Umpire (Exhibits 14-3 and 14-4), the employer submits the same arguments that had already been taken into consideration by the Board of Referees, which had weighed the evidence in the docket and decided, for the reasons mentioned above, to accept the claimant's position.

According to case law, the Board of Referees is responsible for evaluating evidence and testimony presented to it. In the Guay decision, the Federal Court of Appeal (A-1036-96) states:

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.

Case law (Ash [A-115-94] and Ratté [A-255-95]) also shows that it is not up to the Umpire to substitute his or her opinion for that of the Board of Referees, except if the Board seems to have made the decision in a perverse or capricious manner or without regard for the material before it. In CUB 43808, Judge Marin states:

The Board is the trier of fact, and an Umpire does not easily trample upon such a finding as it had the best opportunity of observing witnesses, their demeanour and behaviour under questioning.

The Umpire's jurisdiction is limited by subsection 115(2) of the Act. Unless the Board of Referees has failed to observe a principle of natural justice, has erred in law, or seems to have made the decision in a perverse or capricious manner or without regard for the material before it, the Umpire is bound to dismiss the appeal.

The employer has not shown that the Board of Referees erred within the meaning of subsection 115(2) of the Act.

Consequently, the appeal is dismissed.

GUY GOULARD

UMPIRE

OTTAWA, Ontario
October 9, 2003