CUB 66923

GUY GOULARD, Umpire

The claimant worked for 1487316 Ontario Corporation from May 6, 2003 until April 21, 2005. On April 28, 2005 she applied for employment insurance benefits and a claim was established effective April 24, 2005. The Commission determined that the claimant had established just cause to leave her employment and advised the employer of its decision.

The employer appealed the Commission's decision to a Board of Referees which dismissed the appeal. The employer appealed the Board's decision. This appeal was heard in Toronto, Ontario on October 11, 2006. The claimant did not attend. The employer was represented by Ms. Amanda Singh.

The claimant stated that she had left her employment because of improper advances of a sexual nature by her employer. This had occurred previously but, on the last occasion, the advance was so direct that she left and filed a complaint with the Human Rights Commission. Details of the claimant's allegations are provided in exhibit 10, submissions prepared by the claimant's representative in her appeal to the Board of Referees.

The employer denied any improper conduct or advances as alleged by the claimant. The employer indicated that the claimant had left her employment without giving any reason for her departure but stated that she had requested a pay raise and, when this was refused, she stormed out of the office where she was meeting with the employer, went to her office, packed her personal items and threw the office keys at her superior. This occurred on April 21, 2005. The employer added that the claimant had called later on the same day and made threats against her superior of calling Revenue Canada and different clients unless she was "bought out". The employer provided a copy of an email message the claimant would have sent to her superior on April 19, 2005 requesting a pay increase. She requested a meeting with him. It was during the requested meeting that the claimant left her employment.

The claimant appeared before the Board with her representative, Mr. Patrick James. The employer was represented by its accountant, Ms. Amanda Singh, and secretary, Ms. Tina Wilson. The claimant and the employer basically reiterated their respective position, the claimant insisting that she had quit her employment because of sexual harassment and the employer denying any such conduct. The employer was of the view that the claimant was making her accusations for monetary gains. The claimant stated that, during her last meeting with her supervisor, he had refused to give her the raise she was asking for but had suggested that there could be a private arrangement between the two of them. That was when the claimant would have left. The employer repeated that the claimant had later called to make threats against her employer. The claimant's representative provided information that the claimant was suffering from anxiety and depression and was seeing a therapist.

The Board noted that there was contradictory evidence presented by the claimant and the employer and stated that, in such cases, the issue should be resolved by accepting the evidence which is reasonable, reliable and credible in regard to the circumstances. The Board dismissed the employer's appeal for the following reasons:

"The Board finds the claimant to be credible in her statements. She said she needed the job and the Board accepts she would not have quit without other employment unless she had no choice. She did not appear to be threatening and emphasized that she really needed the job and was afraid to come forward earlier.

Section 29(c) of the Employment Insurance Act states that just cause for voluntarily leaving .an employment exists if a claimant had no reasonable alternative to leaving, having regard to all the circumstances, including (i) sexual or other harassment.

The Board concurs with CUB 40589 that "No doubt, a claim of sexual harassment has both a subjective and a more objective element to it. It may well be that sexual harassment claimed is perceived as such by no one except the claimant".

Regardless of whether or not there was intent on the part of the employer to sexually harass the claimant, the Board finds as fact that the claimant perceived that there was sexual harassment and that she had no alternative but to leave."

On appeal, the employer's representative submitted that the Board erred in accepting the claimant's evidence in regard of her allegations of sexual harassment. She maintained that the claimant's allegations were made for financial gain and that she had put a facade of sadness and desperation which had influenced the Board of Referees. She indicated that the complaint before the Human Rights Commission is still ongoing. The employer was of the view that the claimant was simply abusing the system and that she should not be entitled to receive employment insurance benefits as she had left her employment without reason for doing so.

The Commission submitted that the matter should be returned before a newly constituted Board because the Board had not properly explained why it was not accepting the employer's evidence. The Commission also submitted that the Board should have offered the parties the opportunity to give their respective evidence in the absence of one another, as permitted pursuant to subsection 114(2) of the Act which provides:

114(2) If a circumstance of sexual or other harassment mentioned in subparagraph 29(c)(i) is being considered by a board of referees, the chairperson of the board may, on application by the claimant, direct that the hearing be held in private or that details concerning the circumstance not be published in any document or broadcast in any way, if the chairperson is satisfied that personal or other matters may be disclosed of such a nature that the desirability of avoiding public disclosure of those matters in the interest of the claimant or in the public interest outweighs the desirability of the access by the public to information about those matters.

In the present case, the claimant did not ask that the hearing be held in private. There was no obligation on the Board Chairperson to make a suggestion that there be a private hearing.

Subsection 49(2) of the Employment Insurance Act provides that when the evidence from 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 the present case, the Board reviewed the evidence and found that the evidence of both parties was contradictory and conflicting. The Board found the claimant to be credible and accepted her evidence over that of the employer. Referring to CUB 40589, the Board noted that there is an element of subjectivity in allegations of sexual harassment and that "it may well be that sexual harassment claimed is perceived as such by no one except the claimant".

The determination of whether a claimant has established just cause pursuant to section 29 of the Employment Insurance Act 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, 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's decision is compatible with the evidence before the Board. The Board was confronted with contradictory evidence. It chose to accept the claimant's evidence. The Board was entitled to do so pursuant to subsection 49(2) of the Employment Insurance Act. I find that the Board took all the evidence into consideration in arriving at its decision which is supported by this evidence.

Neither the employer nor the Commission has shown that the Board erred in its decision.

Accordingly, the appeal is dismissed.

Guy Goulard

UMPIRE

OTTAWA, Ontario
November 3, 2006