TRANSLATION
IN THE MATTER of the EMPLOYMENT INSURANCE ACT
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IN THE MATTER of a claim for benefits by
Martin RIVEST
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IN THE MATTER of an appeal to an Umpire by the Canada Employment Insurance Commission from the decision of a Board of Referees given on July 13, 2004 at Repentigny, Quebec.
DECISION
André Quesnel, Umpire
The Commission refused to pay the benefits claimed because the claimant had left his employment without just cause.
The Board of Referees allowed the claimant's appeal.
The Commission argues that the Board of Referees erred in finding that the claimant had had no reasonable alternative to leaving his employment.
The Commission's representative cites a Federal Court of Appeal 1 decision to argue that the claimant did not have just cause to leave his employment, even if he had good cause to act as he did. She adds that the claimant made no efforts to keep his employment; leaving was a personal decision on his part. Moreover, the Board of Referees allegedly failed to answer the question as to whether the claimant's decision constituted his only reasonable alternative.
The claimant had worked as a hardwood stacker for Simon Lussier Ltée for about five days when the scaler called over to him, telling him to go inside when his feet were cold. It was very cold that day; the scaler said that he did not want a case of workers' compensation.
Once the claimant was inside, the foreman told him that he should have spent $250.00 to buy a pair of winter work boots. The claimant answered him that he did not have the money. As there was no indoor employment to offer the claimant, the employer allegedly urged him to leave his employment.
Despite the employer's statements, the claimant was never told that he could regularly go inside to warm up on very cold days, nor that he required boots that cost $250.00 a pair; he had bought a pair for $80.00 and added a felt insole.
The Board of Referees found that the claimant had had just cause for leaving his employment; it relied on the following subparagraphs of the Employment Insurance Act:
29(c) just cause for voluntarily leaving an employment or taking leave from an employment exists if the claimant had no reasonable alternative to leaving or taking leave, having regard to all the circumstances, including any of the following:
(i) ...
(ii) ...
(iii) ...
(iv) working conditions that constitute a danger to health or safety,
(xi) practices of an employer that are contrary to law,
(xii) undue pressure by an employer on the claimant to leave their employment...
In this case, the Commission argues that the Board of Referees made an error of mixed fact and law.
The Federal Court of Appeal 2 concluded that an Umpire had erred in law in setting aside the Board of Referees' findings on a question of fact relevant to its decision:
In our view, decisions such as that of the Board are not to be read microscopically": ...While it is true that the Board did not explicitly condemn the applicant's evidence as not worthy of belief, in our view its refusal to accept his explanations is more than apparent from the unanimous finding at the very end of the decision.
When an Umpire finds that the conclusion of a Board of Referees as to a question of fact is not unreasonable in light of the evidence as a whole, he must not accept the argument that he is required to intervene because the Board of Referees failed to rule on a question of law 3.
In another decision 4, the Umpire stated the following regarding just cause for voluntarily leaving:
[Translation]
The issue as to whether a voluntary leaving was with or without just cause is a question of fact. The case law holds that, to determine whether there was a voluntary leaving, whether the employee desired to leave is not relevant; it is enough simply to ascertain whether it was the employee or the employer who took the initiative to sever the employment relationship ...
In this case, the Board of Referees, referring to the evidence, identified three circumstances that might give the claimant just cause to leave his employment.
The principal role of the Board of Referees is to weigh the evidence. 5 An Umpire cannot substitute his opinion for that of a Board of Referees in such matters unless the Board's conclusion was unreasonable.
In this case, the Board of Referees' conclusion does not seem so unreasonable in light of the evidence as a whole as to warrant my intervention to vary it.
Consequently, the appeal is dismissed.
André Quesnel
Umpire
Montreal, Quebec
November 4, 2004