CUB 70996

GUY GOULARD, Umpire

The claimant worked for a hotel until September 29, 2007. She filed a claim for Employment Insurance benefits effective September 30, 2007. The Commission determined that the claimant worked in a sales position for another employer, that she left that employment without just cause on June 29, 2007, and that leaving was not her only reasonable alternative. As a result, the Commission imposed an indefinite disqualification on her effective June 29, 2007. The Commission also found that, after leaving her employment without just cause, the claimant did not accumulate the number of hours of insurable employment required to have a benefit period established. She accumulated only 301 hours of insurable employment when the minimum she required to be eligible to receive benefits under section 7(2) of the Employment Insurance Act was 420 hours.

The claimant appealed from the Commission's decisions to a Board of Referees, which allowed the appeal. The Commission appealed from the Board's decision to an Umpire, and the hearing was held in Percé, Quebec, on July 24, 2008. The claimant did not attend the hearing, but was represented by a lawyer.

On her benefit claim and in Exhibits 5 and 7, the claimant indicated that she had left her part-time job where she worked approximately 20 hours a week to accept a full-time seasonal position. The seasonal position was higher paying and closer to her home. Since the job was seasonal, the claimant was planning to go back to school.

In her letter of appeal to the Board of Referees, the claimant indicated that the only reason she left her job as a salesperson was to improve her situation. She said that her new job was exactly what she had been looking for in terms of her career goals. She registered in an adult education course in order to finish her Secondary V so that she could enrol in a hotel and catering services school. She said that her job as a salesperson did not pay very well, was not very fulfilling, and did not offer much opportunity for advancement. She therefore decided to work for the new employer to improve her opportunities for the future.

The claimant attended the hearing before the Board and was accompanied by her lawyer. She stated that she had confirmed that she had a job at the hotel before she left her previous employment. She also stated that she had assurance of a job with her new employer in May 2008, once activities resumed after the winter season.

The Board examined and summarized the evidence in the docket and the evidence presented at the hearing. The Board stated that the claimant had to prove that she had no other reasonable alternative under the circumstances but to leave her employment. The Board referred to CUB 64045 in which Stevenson J. stated that leaving part-time employment to accept a seasonal job with higher pay can constitute just cause in some cases. The Board was of the opinion that the claimant's situation in this case was similar to that in CUB 64045. The Board found that the claimant clearly showed that the steps she had taken to improve her situation were all very logical, and allowed her appeal.

On appeal from the Board's decision, the Commission submitted that the Board erred in fact and in law when it determined that the claimant had established just cause within the meaning of the Employment Insurance Act for leaving her employment as a salesperson since she left a permanent job to accept a position that she knew was seasonal and that would soon end for the winter season. The Commission submitted that the case law has established that leaving permanent employment for a seasonal job that will end in the near future does not constitute just cause for leaving employment within the meaning of the Act. The Commission also submitted that the Board erred when it failed to determine whether voluntarily leaving her employment was the claimant's only reasonable alternative under the circumstances.

Counsel for the claimant stated that the claimant left her employment as a part-time salesperson to accept a higher-paying job that was closer to her home so that she could improve her chances for a better future. Counsel for the claimant also stated that the claimant had assurance of permanent employment with the new employer once the 2008 season began. Counsel for the claimant also indicated that in A-75-07 the Federal Court of Appeal determined that leaving part-time employment to accept permanent seasonal employment could, under certain circumstances, constitute just cause within the meaning of the Employment Insurance Act. Counsel for the claimant submitted that the only way the claimant could change careers and ensure a better future was to leave her part-time employment. Counsel for the claimant also pointed out that finding employment in Gaspé is difficult and that jobs in the area are often seasonal. She submitted that the Board's decision was well founded on all of the evidence presented and that the Commission's appeal should be dismissed.

In this case, the Board had to determine whether the claimant established just cause for voluntarily leaving her employment within the meaning of section 29(c) of the Employment Insurance Act and whether leaving was her only reasonable alternative. In its decision, the Board pointed out that the claimant had to prove that she had no reasonable alternative but to leave her employment when she did. By allowing the claimant's appeal, the Board clearly found that such was the case.

In A-75-07, a decision that was rendered on the same day as the Board rendered its decision in this case, the Federal Court of Appeal considered the issue of just cause for leaving "permanent employment in order to take another permanent, but seasonal, employment at a higher wage." The Court indicated that, among other factors, the circumstances at the time of the voluntary leaving and the number of weeks remaining before the end of the seasonal employment are relevant to determining whether a claimant had just cause for leaving an employment within the meaning of the Act. In addition, the Court referred to situations in which the claimant's new seasonal employment was also permanent.

Before the Umpire, counsel for the claimant pointed out that the employment difficulties in Gaspé are a regional problem. This issue was raised before in two other similar cases during the same week of hearings in the Gaspé region. Counsel for the claimant stated that the claimant was still working for the same employer.

With respect to the Employment Insurance review and appeal procedures, the legislator set out that the tribunal must be made up of three members from the claimant's region so as to ensure that the tribunal is aware of the regional circumstances affecting the issues under appeal and that it takes those circumstances into consideration.

The case law holds that the Board is the trier of fact in the assessment of the evidence and the testimony before it. The Federal Court of Appeal stated the following on the subject in 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 (A-547-01, A-600-93, A-115-94, A-255-95 and A-97-03) also holds that the Umpire cannot substitute his or her opinion for that of the Board unless the Board's decision appears to have been made in a perverse or capricious manner or without regard for the material before it. In A-115-94 (supra) Desjardins 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 A-547-01 (supra), Létourneau J. stated that an Umpire's role 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 A-97-03 (supra), Sexton J. added:

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 this case, the Board carefully summarized and analyzed the evidence from the docket and the evidence presented at the hearing. Unfortunately, the Board's decision is not very explanatory; however, the Board did set out the circumstances that led the claimant to leave her part-time employment to accept a permanent position with higher pay in a field in which she wanted to begin a career.

The Board's decision is completely consistent with the evidence in the docket and the Federal Court of Appeal's interpretation of the issue of just cause in circumstances similar to those of the claimant in this case (A-75-07, supra).

The Umpire does not have the authority to retry a case or substitute his or her discretion for that of the Board of Referees. The Umpire's authority is limited by section 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 Commission did not demonstrate that the Board erred in such a way.

Consequently, the appeal is dismissed.

Guy Goulard

UMPIRE

OTTAWA, Ontario
August 8, 2008