CUB 70452

GUY GOULARD, Umpire

The claimant applied for employment insurance benefits on December 29, 2006 and a claim was established effective December 3, 2006. The claimant submitted two records of employment indicating that she had worked for a company in forestry from July 4, 2006 until November 29, 2006 and another one in home care from October 1, 2004 until June 22, 2006. The Commission determined that the claimant had left her employment in home care services without just cause and could therefore not use the hours of employment from that employer for the purpose of calculating her rate of benefits which was determined to be $334.00 and her period of entitlement was determined to be 16 weeks.

The claimant appealed the Commission's decisions to a Board of Referees which allowed the appeal. The Commission appealed the Board's decision. This appeal was heard in Moncton, New Brunswick on April 18, 2008. The claimant did not attend. She had informed the Office of the Umpire that she would not be attending and that she wanted the appeal to proceed in her absence.

In her application for benefits, the claimant stated that she had quit her employment with the home care services to take another job which she had started on July 4, 2006. At exhibit 5 the claimant indicated that, when she left her employment with the home care services, she did not have a confirmation of another employment but had left her employment to go to British Columbia to seek employment. In the meantime a friend had called to inform the claimant that she could get employment with a company in forestry. She went to that employment.

In her letter of appeal to the Board of Referees, the claimant stated that she had quit her employment with the home care services because she was going out west to get a better paying job. She explained that her salary with the home care services was not sufficient to cover all her expenses. She added that she did not have a confirmed job when she left but that she had two opportunities by word of mouth. She had been without work for only nine days before finding a new job which paid a lot more than what she had previously earned. She stated that she had been led to believe that if she quit one employment to go to another one; this would not be used against her.

The claimant participated in the hearing before the Board of Referees by telephone. She stated that she had left her employment in New Brunswick to go to British Columbia because a friend had told her she would have a job there. When she arrived in Surrey, British Columbia, she did not like that city and decided to take a second offer of employment with the forestry employer in Alberta. She stated that this employment had been confirmed by a close friend. All this had occurred within nine days of leaving her employment with the home care services.

The Board of Referees indicated that the claimant was very credible in her testimony. The Board reviewed the evidence and concluded that the claimant had established just cause for leaving her employment pursuant to paragraph 29(c)(vi) of the Employment Insurance Act as she had an assurance of another employment when she left her employment with the home care services. The Board allowed the claimant's appeal.

On appeal from the Board of Referees' decision, the Commission submitted that the Board erred in law when it determined that the claimant had established just cause for leaving her employment as the evidence established that when she left her employment with the home care services she had no assurance of another employment in the immediate future pursuant to paragraph 29(c)(vi) of the Act as interpreted in the jurisprudence. The Commission submitted that the Board failed to take into consideration the claimant's statement in exhibit 5 that she did not have the job with the forestry company lined up when she left her employment with the home care services as this had only been raised with her friend in Alberta after the claimant quit her employment. The Commission submitted that, at best, the claimant had good prospects of employment but no assurance that she would be employed. The Commission pointed out that the claimant had gone to British Columbia first and, not liking Surrey, she went to Alberta and was hired by the forestry company.

I note that, in her application for benefits, the claimant stated that she quit her employer with the home care services to take another job and that she had quit because of another job offer which had been made by the forestry company, a job she started on July 4, 2006. I emphasize that this statement is found in the application for benefits signed by the claimant. Exhibit 5, on the other hand, is a summary of a telephone conversation between the claimant and a Commission agent, prepared by the Commission agent and not signed by the claimant. In her letter of appeal to the Board of Referees, the claimant confirmed that, although she had no confirmed position, she had two job opportunities by word of mouth and that this had been confirmed by the fact that she was hired within nine days of leaving her employment in New Brunswick.

The Commission submitted that the Federal Court of Appeal established in A-123-03 that, without a formal offer from an employer, the claimant could not establish that he or she had a reasonable assurance of employment in the immediate future.

In its finding of facts, the Board of Referees noted:

"The claimant had 2 job confirmations prior to leaving at the home care services by word of mouth.

The claimant went to Surrey, British Columbia because she had been told by a friend that there was a job for her when she would get there.

Upon her arrival in Surrey, British Columbia, she decided that this big city was not the place for her and decided to take the second offer of a job with a forestry company in Morin Ville, Albert which had been confirmed by a very close friend."

In CUB 49237, Justice Simpson wrote:

"In most cases, a claimant should have more than a "reasonable belief" or a "reasonable hope" of obtaining a particular job before having just cause to voluntarily leave an existing employment position. The standard is an objective one (CUB 43599) and is described in ss. 29(c)(vi) of the Act as "reasonable assurance of another employment in the immediate future". If this standard meant that a claimant should have a concrete job offer from an employer, it would have said so. In my view, the language was chosen to provide some flexibility so that each case could be considered on its own facts to determine whether a reasonable assurance existed."

In CUB 53890, notwithstanding the fact that the employer had indicated he had never promised the claimant employment because he was not exactly certain when the position would become available, Justice Rouleau found that based on the fact that the claimant had previously received some training from this employer, he may have assumed, and reasonably so, that he would be hired when he moved. He allowed the claimant's appeal.

The jurisprudence has unequivocally established that the Board of Referees is the primary tribunal for the finding of facts in employment insurance cases and 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 (A-547-01, A-600-93, A-115-94, A-255-95 and A-97-03).

In 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 A-97-03 (supra), Justice Sexton wrote:

"In A-610-01 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) A-123-03, 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 [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 the present case, the Board reviewed the evidence and concluded that based on the claimant's evidence it could conclude that the claimant had a reasonable assurance of other employment when she left her previous employment. What is most significant in this case is that the claimant did obtain the employment her friend had told her she could get if she went West. I cannot find that the Board erred in law or that there is no line of analysis within the Board's reasons that could reasonably lead it from the evidence available to the conclusion at which it arrived.

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 Commission has not established that the Board so erred.

Accordingly, the appeal is dismissed.

Guy Goulard

UMPIRE

OTTAWA, Ontario
May 2, 2008