CUB 67770

GUY GOULARD, Umpire

The claimant worked for Placements Sergakis Inc. from February 18, 2004 to September 2, 2005. On September 12, 2005, he made a claim for employment insurance benefits, which was established effective September 11, 2005. The Commission subsequently determined that the claimant had lost his employment because of his misconduct, and an indefinite disqualification was imposed effective September 11, 2005.

The claimant appealed the Commission's decision to a Board of Referees, which allowed the appeal. The employer appealed the Board's decision to an Umpire. This appeal was heard on February 7, 2007 at Montreal, Quebec. The claimant attended and was represented by his counsel, Roch Guertin. The employer was represented by its counsel, Sébastien Sénéchal.

The reason for dismissal provided by the employer was that the claimant had stolen money. The evidence showed that the claimant had worked for his employer as a superintendent. He had worked with another superintendent who lived with him in an apartment in the building where they worked. Both superintendents had collected rent for some 140 apartments. The second superintendent had disappeared in August 2005. In September 2005, the claimant had been called in to meet with five of the employer's managers to answer questions about rent money that had disappeared. The claimant had signed a document acknowledging that he had kept the missing amounts and promising to return the money through deductions from his pay. The police had been notified, and criminal charges had been laid against both superintendents. The claimant was awaiting trial.

The claimant later denied that he had stolen the money and said that he had signed the statement because of threats from the five people questioning him and that he had been so nervous and frightened that he had felt obliged to sign the document given to him.

The claimant and the employer, Peter Sergakis, were present before the Board of Referees, which reviewed the evidence and allowed the claimant's appeal on the following grounds:

To demonstrate misconduct, it is not enough to provide evidence that as-yet-unproven criminal charges have been laid. The Commission based its decision simply on the employer's version of the facts to the effect that the claimant had commited theft. The evidence as submitted by the employer to the Board does not allow it to conclude, on the balance of probabilities, that there was theft on the part of the claimant. The Commission did not discharge the burden of its proof with regard to the claimant's misconduct.

On appeal, counsel for the employer stated that the criminal charges laid against the claimant were going to be heard in court the week of February 11 of this year. He submitted that the employer had provided sufficient evidence of the claimant's involvement in the disappearance of money, given that criminal charges had been laid against him based on his statement admitting he had taken the money. He submitted that the Board's decision seemed to indicate that it would have been necessary to wait for the court's verdict on the issue of theft to determine whether the claimant was guilty of misconduct. He argued that this was not necessary, since the onus on the Commission and the employer was to prove on a balance of probabilities that the claimant had committed the acts alleged against him.

Counsel for the claimant submitted that the decision of the Board of Referees was well founded in light of the evidence before the Board or the lack of evidence showing that the claimant was guilty of the misconduct in question. He submitted that, aside from the claimant's statement, there was in fact no evidence of the claimant's involvement in the disappearance of the money. He noted that the Board had accepted the claimant's explanation for signing that statement. He also argued that the Federal Court of Appeal had held in Meunier (A-130-96) that, to establish misconduct, it is not sufficient to note that criminal charges have been laid which have not been proven at the time of the separation from employment.

The Commission did not intervene in this appeal.

According to the case law, the Board of Referees is responsible for assessing the evidence and testimony before it. The Federal Court of Appeal stated the following on this point 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 (Le Centre de valorisation des produits marins de Tourelle Inc. (A-547-01), McCarthy (A-600-93), Ash (A-115-94), Ratté (A-255-95) and Peace (A-97-03)) also indicates that an Umpire must not substitute his or her opinion for that of a Board of Referees unless it appears to the Umpire that the Board's decision was made in a perverse or capricious manner or without regard for the material before it. In Ash, supra, Desjardins J.A. wrote the following:

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.

In Le Centre de valorisation des produits marins de Tourelle Inc., supra, Létourneau J.A. stated that the function of an Umpire is limited "to deciding whether the view of facts taken by the Board of Referees was reasonably open to them on the record".

More recently, in Peace, supra, Sexton J.A. added:

In Budhai, supra, this Court held that applying the pragmatic and functional approach, where an Umpire is reviewing a decision of a Board involving a mixed question of fact and law, the standard of review should be reasonableness simpliciter. In Canada (Attorney General) v. Sacrey, [2003] F.C.J. No. 1501, 2003 FCA 377, this Court also held that whether an employee has just cause for leaving employment is a mixed question of fact and law to be reviewed on a reasonableness standard.

According to the Supreme Court of Canada in Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, 2003 SCC 20, a decision is unreasonable only if there is no line of analysis within the reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived.

In this case, the Board's decision is entirely consistent with the evidence in the docket. The Board accepted the claimant's explanations about his statement and, as the case law has established, there was no evidence of the misconduct alleged against the claimant except the fact that criminal charges had been laid against him.

An Umpire is not entitled to retry a case or substitute his or her discretion for that of the Board. The Umpire's jurisdiction is limited by subsection 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 employer has not shown that the Board of Referees erred in such a way.

Accordingly, the appeal is dismissed.

Guy Goulard

UMPIRE

Ottawa, Ontario
February 15, 2007