CUB 66285

GUY GOULARD, Umpire

On February 10, 2005, the claimant filed an initial claim for benefits, effective February 13, 2005. In her benefit claim, the claimant indicated that she worked for Tim Hortons from August 30, 2004 to September 25, 2004 and that she left this employment for another job at the Centre de Santé et Services Sociaux Québec-Sud. She also indicated that she worked at Tim Hortons until she obtained her nursing licence for Quebec and that once she received it, she accepted a job as a nursing assistant. The Commission determined that the claimant left her employment at Tim Hortons without just cause and that this was not the only reasonable alternative in her case. Consequently, the Commission imposed an indefinite disqualification, effective February 13, 2005. The Commission also determined that, after leaving her 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 on June 6, 2006, in Bathurst, New Brunswick. The claimant was present.

In Exhibit 6, the claimant indicated that she left her job at Tim Hortons before confirming her employment at the Centre de Santé because she worked at night and was too tired during the day to confirm another job. She added that she was certain that she was going to obtain the job and she did not think that she would have to file a claim for Employment Insurance benefits.

In her appeal letter to the Board of Referees, the claimant explained that she was a graduate nursing assistant. She worked in Bathurst part time and received benefits. She moved to Quebec in July 2004, and her claim was transferred. It took her longer than she planned to obtain her nursing assistant licence for Quebec. She was still receiving benefits. She then accepted a position working nights at Tim Hortons. She returned home at 7:45 a.m. and had to get her seven year old ready and drive her to school. She was finally able to go to bed around 9:00 a.m., but she had to pick up her daughter around 3:00 p.m. She therefore had little time to look for work in her field. She knew that she could find a job as a nurse but she had to take the time to look for one. She therefore decided to leave her job at Tim Hortons. She pointed out that she had saved the system five weeks of benefits and that if she had known that accepting a temporary job at Tim Hortons, at $7.95 an hour, was going to cause her all these problems, she simply would have continued to collect benefits. She concluded by stating that her intentions were good.

The claimant did not appear before the Board, which reviewed the evidence in the docket and allowed her appeal for the following reasons:

[Translation]

Diane Fournier worked part time in Bathurst and received Employment Insurance benefits. She wanted to obtain employment. She applied for a job as a nursing assistant in Quebec. While waiting to obtain her licence from this province, she obtained employment at Tim Hortons until she obtained a better-paying job in her field in Quebec. She did everything that she could to avoid being unemployed and find work in her field.

The claimant did everything a reasonable person would have done to obtain employment in her field and avoid receiving Employment Insurance benefits.

On appeal, the Commission submitted that the Board erred in fact and in law by deciding that the claimant had established that she had just cause for leaving her employment. The Commission submitted that the claimant should have waited until she confirmed her job as a nurse before leaving her position at Tim Hortons. Counsel for the Commission submitted that the claimant's situation did not correspond to any of the situations in which a claimant would have just cause that are provided in section 29(c) of the Employment Insurance Act. The Commission, among other things, pointed out that the claimant had no assurance of employment in the immediate future when she left her employment at Tim Hortons.

Section 29(c) of Act reads as follows:

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 Board ruled on the claimant's circumstances and concluded that she had just cause for leaving her employment at Tim Hortons. This was a temporary night job that she took until she was able to find a nursing job so that she would not have to continue receiving benefits. She explained very clearly why it was almost impossible for her to look for nursing work while continuing to work at Tim Hortons.

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 on this matter 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 (Ash (A-115-94) and Ratté (A- 255-95)) also states that an Umpire must not substitute his opinion for that of the 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 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 this case, the Board of Referees' decision is completely consistent with the evidence in the docket. Supporting the Commission's position would be equivalent to asking claimants in the same position as Ms. Fournier not to accept the kind of job that she accepted, that was in a field that was not her own and that created difficult conditions that undermined her efforts to find employment that was in her field of expertise and that paid wages consistent with her training.

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.

The Commission did not show that the Board of Referees erred in this way.

Consequently, the appeal is dismissed.

Guy Goulard

UMPIRE

OTTAWA, Ontario
June 30, 2006