CUB 59201

GUY GOULARD, Umpire

The claimant worked for Enviro-Med Canada Inc. from August 15, 2001 until December 6, 2002. On December 9, 2002 he applied for employment insurance benefits. An initial claim was established effective December 8, 2002. The Commission later determined that the claimant had left his employment without just cause and imposed an indefinite disqualification from benefits effective December 8, 2002.

The claimant appealed the Commission's decision to the Board of Referees who, in a unanimous decision, allowed the appeal. The employer, Enviro-Med Canada Inc., appealed the Board's decision to the Umpire. This appeal was heard in North Bay, Ontario, on October 24, 2003. The claimant who had been served with a notice of hearing did not attend. The employer was represented by Dr. Bob Porter and the Commission was represented by Mr. Derek Edwards.

The claimant worked in a hospital waste disposing employment, servicing hospitals throughout Ontario. He believed that his employment presented a number of serious hazards to his health. At Exhibits 3-1 and 11-1, the claimant gives lists of the problems and incidents causing his concerns. These incidents included being stuck, on several occasions, with used hypodermic needles, having chemotherapy liquids and blood spilled on him and splashed in his eyes. He had reported the incidents and his concerns to his employer with no results. A number of the incidents are corroborated by documentary evidence. There are also letters from four co-workers, who had worked there, corroborating the health hazards at the claimant's workplace. The claimant had not complained to the Department of Labour because he feared that this would lead to a dismissal. The appeal docket also includes reports from the Department of Labour corroborating some of the claimant's concerns.

The employer took the position that the place of employment was subjected to inspections and that the problems which were brought to their attention had been resolved. They maintained that they offered a safe place of work.

None of the parties appeared before the Board who dismissed the employer's appeal. In its decision, the Board provides a detailed summary of the documentary evidence. The Board concluded that the claimant had established he left his employment as a result of unsafe working conditions and that he had tried to rectify the situation by bringing his concerns to the employer's attention.

On appeal, the employer submitted that the place of employment they provide is as safe as in the waste disposal services of any hospital in Ontario. He stated that they provide their employees with safety equipment and training. He submitted that the Board had failed to take into consideration their written evidence in regard to the safety measures provided.

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 decision (A-1036-96), Justice Marceau 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."

And in the Ash decision (A-115-94), Justice Desjardins wrote:

"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..."

And more recently, in Le Centre de valorisation des produits marins de Tourelle Inc. (A-547-01), Justice Létourneau stated that the role of an Umpire is limited to deciding if the Board of Referees appreciation of facts is reasonably compatible with the evidence before the Board.

In this case, the Board's decision is entirely supportable on the substantial and probative documentary evidence before it.

Accordingly, the appeal is dismissed.

GUY GOULARD

UMPIRE

OTTAWA, Ontario
November 7, 2003