CUB 69403

GUY GOULARD, Umpire

The claimant worked for Service d'Entretien Advance Inc. from July 15, 2004 to December 21, 2005. On January 31, 2006, he filed a claim for Employment Insurance benefits, which was established as of January 29, 2006. The Commission subsequently determined that the claimant had lost his employment because of his own misconduct; consequently, the Commission imposed an indeterminate disentitlement as of January 29, 2006.

The claimant appealed the Commission's decision to a Board of Referees, and his appeal was allowed. The Commission brought the Board of Referees' decision before an Umpire; this appeal was heard in Montreal, Quebec, on April 2, 2007. The claimant was present and represented by counsel Hans Marotte.

The employer stated that the claimant was dismissed because he had taken vacation time despite the employer's having refused to grant him leave. The employer also said that the claimant had been informed in writing of the decision to turn down his request for vacation leave from December 21, 2005 to January 24, 2006 (Exhibit 12-11).

The claimant's union filed a grievance with respect to the dismissal in which it was stated that the claimant had been let go because he had filed a complaint with the joint committee and the complaint had been upheld. The complaint was based on the employer's refusal to pay for floating holidays (Exhibits 17 and 20).

The claimant reported for the hearing before the Board. When the hearing transcript was read, it was obvious the claimant had language difficulties. Before the Board, he repeated that he had not taken holidays since 2003 in order to be able to spend more time with his family in Chile for longer than the usual three weeks. He said that another employee had been able to take a month's holiday from October 19 to November 19, but that his own request had been turned down. He repeated that he had not taken a vacation since 2003 in order to take a month to visit his family, and insisted that the reason why the employer refused to grant him a month's holiday, and then dismissed him, was that he had filed a complaint with the joint committee. The claimant also stated that he had informed his employer in June 2005 that he wanted to take a month's holiday in December to visit his family in Chile, and was told there would be no problem. He therefore purchased four airplane tickets for his family.

The employer's representative, who also attended the hearing before the Board, was asked to comment after the claimant's testimony. He merely stated:

"I have no observations to make on this matter. I was asked to be present to observe and listen, but I have no observations....(inaudible)."

On appeal, the Commission submitted that the Board had erred in fact and in law by deciding the claimant had not lost his employment because of his misconduct. The Commission submitted that the evidence had shown that the claimant had lost his job for taking a vacation without permission, which constitutes misconduct within the meaning of the Employment Insurance Act.

Counsel Marotte submitted that the Board's decision was well founded on the evidence, which showed that the claimant's request for vacation leave had been turned down even though it had been approved previously, and that the claimant was then dismissed for filing a grievance and complaint against his employer. He pointed out that the employer's representative, who was present at the hearing before the Board, had not refuted the claimant's testimony.

I obtained a copy of the transcript of the Board hearing, which was unfortunately of little use, given that the recording was of very poor quality. Most of the claimant's arguments could not be transcribed. However, the transcript did confirm that the employer had not submitted any evidence or submissions. The claimant's testimony, insofar as could be determined, was as summarized above.

According to case law, the Board of Referees is responsible for assessing the evidence and testimony before it. The Federal Court of Appeal states as follows on that subject 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 valorization 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)) supports the position that an Umpire must not substitute his or her opinion for that of a Board of Referees, unless the latter's decision appears to have been made in a perverse or capricious manner or without regard for the material before it. In Ash (supra), Desjaradins J. 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, 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. said the function of the 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. said:

"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 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. »

The Board reviewed and accepted the claimant's uncontested evidence to the effect that his dismissal was a veiled dismissal, because he had filed a complaint against his employer and that complaint had been upheld. The Board's decision is totally consistent with the evidence in the docket.

The Umpire is not in a position to reassess a case or substitute his or her discretionary power for that of the Board. The jurisdiction of the Umpire is limited by subsection 115(2) of the Act. An Umpire is required to dismiss an appeal, 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 manner or without regard for the material before the Board.

The Commission has failed to show the Board of Referees made such an error.

Consequently, the appeal is dismissed.

Guy Goulard

UMPIRE

OTTAWA, Ontario
October 19, 2007