CUB 66916

GUY GOULARD, Umpire

The claimant worked for 1008623 Ontario Inc. (Tim Hortons) from February 13, 2001 until April 24, 2004. On April 29, 2004, she applied for employment insurance benefits and an initial claim was established effective April 25, 2004. The Commission later determined that the claimant had lost her employment as a result of her own misconduct and imposed an indefinite disqualification effective April 25, 2004.

The claimant appealed the Commission's decision to a Board of Referees which allowed the appeal. The employer appealed the Board's decision. This appeal was heard in Cornwall, Ontario on October 2, 2006. The claimant was present. The employer was represented by Ms. Linda Moyer.

The reason given by the employer for dismissing the claimant was that she had been insubordinate and had failed to comply with some of the employer's policies. The employer stated that the claimant had left the shopping square where its restaurant was located during an extended break and that this was against the employer's policy which was known to the claimant. The employer also stated that the claimant had breached the employer's dress code and had been in contact, in proximity to her work place, with a person against whom the employer had a restraining order. The employer added that the claimant had received warnings in the past in regard to her conduct.

The claimant stated she had been a good employee for four years and did not recall receiving warnings in regard to her conduct. She indicated she was not aware that leaving the property was breaking company rules. She added she had been told when working for another Tim Horton's that she had to leave the property to have a cigarette. She also denied taking extensive breaks.

The claimant as well as the employer, Ms. Linda Moyer, and her store manager Ms. Cindy Ley attended before the Board. The Board reviewed the evidence presented by the employer and the claimant and concluded that both the claimant's and the employer's evidence were equally credible. The Board gave the claimant the benefit of the doubt and allowed her appeal.

On appeal, the employer submitted that the claimant had contradicted herself in her evidence before the Board and that the Board had erred in giving the claimant the benefit of the doubt. The employer maintained that all her evidence, as presented in her appeal to the Board, had been true. The claimant also reiterated her version of the evidence as presented to the Board. She denied taking extended leave and explained that she had no choice but to leave the premises to have a cigarette as she was entitled to do during her breaks.

The Commission did not take a position in this appeal.

Subsection 49(2) of the Employment Insurance Act provides that when the evidence of each party on the issue of whether a claimant should be disentitled from benefits is equally balanced, the benefit of the doubt is to be given to the claimant.

In this case, the Board reviewed the evidence presented and arrived at its decision based on an analysis of that evidence.

The determination of whether a claimant's actions constituted misconduct leading to the termination of 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. This principle was well summarized by Justice MacKay in CUB 39868, where he confirmed the Board's decision that the claimant should be given the benefit of the doubt. He wrote:

"An Umpire can intervene in a Board's finding of fact only where there is no evidence to support the Board's findings or where the board clearly ignored important evidence or seriously misconstrued this evidences CUB 18993. or based its decision on a perverse finding of facts. Marchand v. C.E.I.C. (July 21, 1989), Doc. No. A-148-88 (F.C.A.). An Umpire must consider whether, on the evidence before it, a Board could reasonably have reached the conclusion it did, even if the Umpire might have reached a different conclusion. Canada (Attorney General) v. Feere (January 23, 1995), No. A-87-94, [1995] F.C.J. No. 109 (F.C.A.). An Umpire would be exceeding his or her jurisdiction if he or she were to overturn a Board's finding of fact or substitute his or her opinion for that of the Board, simply because he or she viewed the evidence differently. Canada (Attorney General) v. Verreault (1986), 86 N.R 389, [1986] F.C.J. No. 657 (F.C.A.); Canada (Attorney General) v. Ash (1994), 178 N.R 73, [1994] F.C.J. No. 1716 (F.C.A.)."

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 employer has not been able to show that the Board erred in its decision to give the claimant the benefit of the doubt and allow her appeal.

Accordingly, the appeal is dismissed.

Guy Goulard

UMPIRE

OTTAWA, Ontario
October 25, 2006