TRANSLATION
IN THE MATTER of the EMPLOYMENT INSURANCE ACT
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IN THE MATTER of a claim for benefits by
Mathieu MASSÉ
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IN THE MATTER of an appeal to an Umpire by the Commission from the decision of a Board of Referees given on December 6, 2005 at Gaspé, Quebec.
DECISION
GUY GOULARD, Umpire
The claimant filed an initial benefit claim, effective August 14, 2005. The Commission determined that the claimant had voluntarily left his employment without just cause and that his leaving was not the only reasonable alternative in his case. Consequently, the Commission imposed an indefinite disqualification as of August 14, 2005. The Commission also determined that after leaving his employment without just cause, the claimant did not accumulate the number of hours of insurable employment required to establish a benefit period.
The claimant appealed from the Commission's determinations to a Board of Referees, which allowed the appeal. The Commission appealed from the Board's decision to an Umpire. This appeal was heard in the Magdalen Islands, Quebec, on June 19, 2006. Although the claimant was sent a notice of hearing, he did not appear before me. He did not communicate with the Commission or the Office of the Umpire. The Commission submitted that the Board erred in fact and in law by deciding that the claimant had just cause for leaving his employment within the meaning of sections 29 and 30 of the Employment Insurance Act.
The facts in this case were not contested and can be summarized as follows:
The claimant appeared before the Board of Referees by way of video conference. The Board reviewed and correctly summarized the evidence and allowed the claimant's appeal for the following reasons:
[Translation]
Mr. Massé took a course in police science at Rimouski from September 2002 to May 2005.
While he took this course, he worked for Dépanneur Esso for 35 hours a week during the summer holidays, and 20 hours a week, on average, the rest of the year.
His parents regularly gave him $600 per month while he was at school, until May 2005.
He could have kept his job in Rimouski where he would have continued working part-time.
In the summer, he would have worked full-time, essentially for the same length of time as he did with the Municipality of Magdalen Islands.
Then, according to his employer, he could have gone back part-time, working about 20 hours a week.
However, he would not have had financial assistance from his parents.
Based on his living expenses including housing, food, clothing, a vehicle and telephone, it is quite clear that he could not have balanced his budget with only the income from his part-time work.
He would have been in a predicament come September, so by going back home to his parents', he made sure that he could balance his budget while looking for work.
From that perspective and given that his claim for benefits took effect August 14, 2005, whether he continued to work full-time for Dépanneur Esso in Rimouski or for the Municipality of Magdalen Islands becomes immaterial.
It is the situation subsequent to the full-time job that is significant.
Mr. Massé had the choice between part-time employment at Dépanneur Esso, which would not have allowed him to cover living expenses, and going back to live at his parents', which relieved him of the burden of paying rent and allowed him to look for work.
He opted for the latter and found full-time employment starting in October in a grocery store.
The Board finds that, given all the circumstances, Mr. Massé's decision to leave his employment at Dépanneur Esso in Rimouski on May 22, 2005 represented the only reasonable alternative in his case.
Since the Board has found that there was just cause to leave his employment pursuant to sections 29 and 30, the second issue under appeal regarding hours of insurable employment accumulated since May 22, 2005 becomes a moot point.
The Board referred specifically to CUB 51955 (Cloutier) in reaching its decision.
On appeal, the Commission submitted that the Board erred in fact and in law by deciding that the claimant had shown that he had just cause for leaving his employment within the meaning of sections 29 and 30 of the Employment Insurance Act. The Commission submitted that the Board did not consider all of the evidence when making its decision. Counsel for the Commission submitted that the Board failed to take into consideration the fact that the claimant left a full-time job to accept another job that was only a summer job and that eventually led to his unemployment. Counsel also submitted that the Board indicated that the claimant had not established that he left his employment for another job within the meaning of section 29(c)(vi) of the Employment Insurance Act, since his new employment was only a summer job. Counsel also submitted that the Board erred by indicating that it was the subsequent situation, after the full-time job, that was important, given that the determining factor as to whether he had just cause for leaving the job in question was the situation when the claimant left his employment and not what could have happened afterwards. Finally, the Commission submitted that the claimant had other reasonable alternatives to leaving his employment under the circumstances.
In this case, the Board reviewed and summarized the evidence very thoroughly. Based on this evidence, the Board concluded that the claimant showed that he had just cause for leaving his employment and that this was the only reasonable alternative in his case.
Section 29(c) of the Employment Insurance Act states the following:
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:
[my emphasis]
The Act requires that we consider all of a claimant's circumstances when determining whether the claimant established that he had just cause for leaving his employment. As Stevenson J. indicated in CUB 57874:
In determining whether a claimant had just cause to leave a job the Employment Insurance Act requires us to have regard to all the circumstances - including economic circumstances. Failure to consider and give sufficient weight to such circumstances is an error of law. I refer to my decisions in CUBS 35229, 46437 and 54416.
Among other things, the Board considered the claimant's economic circumstances and the fact that he had already spent years taking police science training and had accepted a summer job in his field, which was in his home region and which offered conditions similar to those of the job that he left. It also considered the fact that the claimant found a job in October. The subsequent situation to which the Board referred is part of the claimant's overall circumstances.
In this case, the Board asked the question that it had to ask, namely, whether the claimant showed, given all of his circumstances, that he had just cause for leaving his employment and whether this was the only reasonable alternative in his case. Based on all the evidence, the Board then concluded, for the reasons stated, that the claimant met the conditions for establishing just cause within the meaning of section 29(c) of the Act.
The case law states that the Board of Referees is the trier of fact in assessing the evidence and testimony given before it. The Federal Court of Appeal stated the following in Guay (A-1036-96):
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 case law (Verreault (A-186-86), Ash (A-115-94) and Ratté (A-255-95)) also states that an Umpire must not substitute his opinion for that of a Board of Referees, unless the Board's decision seems to have been made in a perverse or capricious manner or without regard for the material before it. In Ash (supra), Desjardins J.. stated:
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. There was, moreover, significant evidence to support the conclusion of the majority.
And in Verreault (supra), Pratte J. stated:
Under s 95(c) of the Unemployment Insurance Act, 1971, an Umpire may not review a finding of fact by a board of referees unless that finding was erroneous and made in a perverse and capricious manner or without regard for the material before the board. Clearly, even if the findings of fact on which the board based its decision may be questioned, it cannot be said that they are erroneous, even less that they are perverse or capricious.
And, more recently, in Le Centre de valorisation des produits marins de Tourelle Inc (A-547-01), Létourneau J. stated that an Umpire's role is limited "to deciding whether the view of facts taken by the Board of Referees was reasonably open to them on the record".
In the instant case, the Board's decision is completely consistent with the evidence in the docket.
The Umpire does not have the jurisdiction to retry a case or to substitute his or her discretionary power for that of the Board. The Umpire's authority is limited by section 115(2) of the 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 that it made in a perverse or capricious manner or without regard for the material before it, the Umpire must dismiss the appeal.
I cannot conclude that the Board of Referees erred in this way.
Consequently, the appeal is dismissed.
Guy Goulard
UMPIRE
OTTAWA, Ontario
July 7, 2006