CUB 62035

GUY GOULARD, Umpire

The claimant worked for Attawapiskat First Nation from November 21, 2002 until April 16, 2003. On July 9, 2003, he applied for employment insurance benefits and an initial claim was established effective July 6, 2003. The Commission determined that the claimant had worked for AFN Education Authority from April 7, 1987 to January 31, 2003 and had quit that employment without just cause. The Commission imposed an indefinite disqualification effective July 6, 2003. It was also determined that, since leaving his employment without just cause, the claimant had not accumulated the hours of insurable employment required to establish a claim.

The claimant appealed the Commission's decisions to a Board of Referees which allowed the appeal. The Commission appealed the Board's decision. This appeal was heard in Timmins, Ontario on October 13, 2004. The claimant was present and was assisted by an interpreter, Mr. Maurice Sutherland.

The claimant, who had been working on a part-time basis for AFN Education Authority, requested a leave of absence to work on a full-time basis for another employer on a winter project. Following a discussion with his employer, he confirmed his request in writing. His evidence was that he had not received a reply and assumed that his leave was approved. The employer's position was that the claimant had been refused his leave and, by taking it, he had abandoned his employment. The claimant provided copy of a letter from the employer refusing his requested leave of absence. He stated that he had not received this letter until June 25, 2003. He pointed out that this copy had no letterhead and was not signed.

The claimant appeared before the Board of Referees which accepted his evidence that he had not been advised that his leave had been refused prior to leaving his employment but had only been given a copy of the employer's letter on June 25, 2003. The Board also accepted the claimant's evidence that he had received permission from his immediate supervisor for taking the leave. The Board gave the claimant the benefit of the doubt and allowed his appeal.

On appeal, the Commission submitted that the Board erred in fact in its decision. The Commission was of the view that the claimant had been advised that his leave was refused prior to his departure and that he therefore left his employment without just cause.

The determination of whether a claimant has been able to show just cause for leaving his employment, and that there was no reasonable alternative to doing so, entails basically a review and determination of facts. It is well established in the jurisprudence that Boards of Referees are responsible for the determination of facts.

In the Guay decision (A-1036-96), Mr. Justice Marceau of the Federal Court of Appeal wrote:

"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 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 reviewed the evidence and decided to give the claimant the benefit of the doubt. The decision was based on the claimant's written and oral evidence.

The Board's decision is entirely compatible with the evidence before the Board.

Accordingly, the appeal is dismissed.

GUY GOULARD

UMPIRE

OTTAWA, Ontario
October 22, 2004