CUB 66460

GUY GOULARD, Umpire

The claimant worked for Herwynen Saw Mill Ltd. from June 18, 2003 until May 10, 2005. He applied for employment insurance benefits on October 14, 2005 and an initial claim was established effective October 10, 2005. The Commission determined that the claimant had shown just cause for quitting his employment and informed the employer, Herwynen Saw Mill Ltd. of its decision.

The employer appealed the Commission's decision to a Board of Referees which unanimously dismissed the appeal. The employer appealed that decision. This appeal was heard in Kitchener, Ontario on July 14, 2006. The claimant was present. The employer was represented by Mr. John Herwynen.

The claimant stated that he left his employment because of the verbal and physical aggressive behaviour of the employer towards him. He stated that he had been assaulted before by his employer. He had reported the latest incident to the police. He added that the employer was a big strong individual and that he feared him because he had an anger management problem.

The employer basically denied the claimant's allegations and stated that the claimant was an aggressive person who had been involved in fights with other employees in the past. The employer added that the claimant was a very good employee at first but later developed an attendance problem.

The claimant appeared before the Board and the employer participated by telephone. The employer acknowledged that, during a discussion with the claimant, voices were raised and things were said but he denied assaulting the claimant. He added that the claimant demanded two weeks' severance pay and threatened to go back to the police if this was not paid. The claimant stated that he had left the workplace so as not to be seen by his employer to avoid another altercation. He maintained that the employer had assaulted him.

At the end of the hearing, the Board concluded that the evidence of the claimant and the employer had their respective credible weight and that the evidence was equally balanced. The Board gave the benefit of the doubt to the claimant pursuant to subsection 49(2) of the Employment Insurance Act which states:

49(2) The Commission shall give the benefit of the doubt to the claimant on the issue of whether any circumstances or conditions exist that have the effect of disqualifying the claimant under section 30 or disentitling the claimant under section 31, 32 or 33, if the evidence on each side of the issue is equally balanced.

The Board unanimously dismissed the employer's appeal.

On appeal to the Umpire, the employer again denied ever assaulting the claimant. He reiterated that he approached the claimant to discuss the fact that he had not come in for work and had not called. He repeated that he is not an aggressive person as alleged by the claimant. He indicated that the charges that the claimant had laid against him were withdrawn and that he had never had the intention of pleading guilty as alleged by the claimant. The employer added that, for him, the appeal was a question of principle. He stated that he did not agree that the claimant should be entitled to employment insurance benefits based on his allegations that he quit as a result of assaultive behaviour on his part.

The claimant stated that his evidence before the Board was true and that the Board had believed him. He added that he had won his complaint before the Labour Board in regard to his severance pay.

The Commission took the position that the Board's decision was well founded on the evidence before the Board and that the appeal should be dismissed.

The determination of whether a claimant established just cause for leaving his employment in any particular circumstances entails basically a review and determination of facts. The jurisprudence has unequivocally established that the Board of Referees is the primary tribunal for the finding of facts in employment insurance cases.

In Guay (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."

In Ash (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 the present case, the Board was faced with evidence of comparable weight. Pursuant to subsection 49(2) of the Act, the claimant was entitled to the benefit of the doubt. The Board's decision was compatible with the evidence presented.

An Umpire's jurisdiction is limited by subsection 115(2) of the Employment Insurance 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 made in a perverse manner or without regard for the material before the Board, an Umpire is required to dismiss an appeal.

The employer has not shown that the Board of Referees erred in its decision.

Accordingly, the appeal is dismissed.

Guy Goulard

UMPIRE

OTTAWA, Ontario
July 28, 2006