IN THE MATTER of the EMPLOYMENT INSURANCE ACT
and
In the matter of a claim for benefits
and
IN THE MATTER of an appeal to an Umpire by the Commission from the decision of a Board of Referees given on October 31, 2007 at Kelowna, British Columbia
CORRESPONDING FEDERAL COURT DECISION: A-32-09
GUY GOULARD, Umpire
The claimant worked for a school district from September 6, 2004 until June 29, 2005. On July 13, 2005, she applied for employment insurance benefits and an initial claim was established effective July 3, 2005. The Commission determined that the claimant had returned to her employment on September 6, 2005 and worked until October 7, 2005 when she lost her employment or was unable to resume her work due to a labour dispute. The Commission imposed a disentitlement from October 7, 2005 to October 21, 2005 pursuant to subsection 36(1) of the Employment Insurance Act.
The claimant appealed the Commission's decision to a Board of Referees which allowed the appeal. The Commission appealed the Board's decision. This appeal was heard in Kamloops, British Columbia on October 27, 2008. The claimant was present and represented by her Union representative.
The facts in this case were not contested. The claimant was unable to continue to work on October 7, 2005 as a result of a walkout by members of the Provincial Teachers Federation. The Commission determined that the claimant was unable to continue to work as a result of a work stoppage attributable to a labour dispute and imposed a disentitlement for the period of the work stoppage pursuant to subsection 36(1) of the Employment Insurance Act which reads:
36.(1) Subject to the regulations, if a claimant loses an employment, or is unable to resume an employment, because of a work stoppage attributable to a labour dispute at the factory, workshop or other premises at which the claimant was employed, the claimant is not entitled to receive benefits until the earlier of
(a) the end of the work stoppage, and
(b) the day on which the claimant becomes regularly engaged elsewhere in insurable employment.
This matter first came before me on August 9, 2007. At that time, I found that the majority members of the Board of Referees which had initially heard the claimant's appeal had not adequately addressed the issue under appeal. I returned the matter before a newly constituted Board of Referees with the direction that the new Board was to determine three issues. Firstly, whether the work stoppage that prevented the claimant from working was due to a labour dispute or one that was more of a political nature; secondly, whether the claimant had participated in the said labour dispute, if this was deemed to be a labour dispute; and, thirdly, whether the claimant had not worked in respect of a picket line or whether she had been directed by her employer not to report to work.
In her appeal to the newly constituted Board of Referees, the claimant, through her Union representative, argued that the work stoppage which had prevented her from working was not attributable to a labour dispute as defined in the Employment Insurance Act but to a political protest carried out by the Provincial Teachers Federation against the Provincial Government. The Commission maintained its position that the claimant had been prevented from working due to a work stoppage attributable to a labour dispute as defined in the Act, that she had participated in this labour dispute and had not been told by her employer not to report to work.
The Board of Referees' unanimous findings of fact and conclusion read as follows in its decision:
"The Board finds that this work stoppage was more of a political nature. The appellant's representative presented arguments including CUB 44692c and referred to materials already in the docket, in particular CUPE communications. The Commission did not provide this Board with further information on this issue, which was specified by the Umpire. In reviewing the materials provided by the Commission, much of which consisted of selected newspaper articles, there is discussion about the work stoppage being political in nature as well as being an illegal strike. The two school district documents do not address the question of what type of work stoppage was being experienced.
In short, the Board members were unable to find particular document from an authoritative source (that the Commission was relying on) to find that it was a labour dispute.
On the second issue the Umpire identified, whether the claimant had participated in the labour dispute, the Board notes that this matter is moot as the Board has found that the work stoppage was a political protest rather than a labour dispute.
On the third issue, the Umpire directed the Board to consider whether the appellant had not worked in respect of the picket line, or whether she had been directed by her employer not to work. The appellant's representative stated that the appellant had not crossed the picket line but was confused as to her obligations in that regard. She signed documents there which she believed confirmed that she had reported to work, but that no work was available. The representative confirmed that she had not been directed by her employer not to report to work. She wanted to work and was willing to do so, and was disappointed that she was not given the opportunity to do so.
The Board considered CUB 44692c, in which the Umpire found that several organizations had withdrawn the services of their members as a protest against education reform legislation then being considered by the Provincial Legislature. The withdrawal of services was not between the employers and the employees, and was acknowledged by Boards of Education as not being against them. The Umpire found that with reference to subsection 2(1), there was no dispute between the employers and employees, and that the work stoppage was not attributable to a labour dispute at the claimant's place of employment."
On appeal from the Board of Referees' decision, the Commission submitted that the Board erred in fact and in law in concluding that the claimant had not lost her employment as a result of a work stoppage attributable to a labour dispute pursuant to section 2 and subsection 36(1) of the Employment Insurance Act. The Commission pointed out that there were several issues between the Teachers Federation and the employer represented by the Provincial Employer's Association that were in the process of negotiations and that therefore the work stoppage that caused the claimant's unemployment was due to a labour dispute as defined in the Act. The claimant had participated in the dispute as a union member and had received strike pay. She had not crossed the picket line and had not been told by her employer not to report to work. The Commission submitted that there was no evidence to support the Board's finding that the work stoppage was more related to a political dispute.
The claimant's Union representative stated that there was no illegal walkout in regard to the negotiations between the teachers and the employer as negotiations were ongoing. The Teachers' Federation had decided to walk out in response to the Provincial Government's decision to legislate the teachers back to work, notwithstanding ongoing negotiations between the teachers and their employer. He submitted that there were a number of exhibits to confirm this. The Government had not been involved in the negociations and it is when it intervened that the teachers took action in protest of that intervention, not because of an impasse with the employer.
The representative also pointed out that the amount the claimant had received from the Teachers' Federation was not a strike pay and was not related to any participation in the work stoppage but was an amount that had been paid to all members of the Federation affected by the work stoppage. He also indicated that there had not been a genuine picket line as there was no formal strike. It was more in the nature of a demonstration line. The representative added that there was evidence in exhibit 18-6 and 18-8 that the claimant had been told there was no work for her to go to. He submitted that the claimant had not participated in the labour stoppage action. He emphasized that there were ongoing negotiations between the teachers and their employer and that the existing contract was valid until replaced. He submitted that the Board's decision was well founded on the evidence which established that the work stoppage that had led to the claimant not being able to work was the result of a political process and not a labour dispute involving the teachers and their employer.
As noted by the Board of Referees, several exhibits in the appeal docket indicated that the decision of the Teachers' Federation to stage a walkout was in reaction to the Provincial Government's decision to legislate the teachers back to work (exhibits 2-3, 2-6, 2-7, 2-9, 2-15). It was also established that the teachers and their employer were still negotiating a new contract, although the negotiations were not progressing well (exhibits 2-1 and 2-2). The teachers had hoped that Government's intervention might assist with the ongoing negotiations (exhibit 2-1). Instead, the Provincial Government imposed a return to work on the teachers. The following are comments found in these exhibits:
"Labour dispute" is defined as follows in section 2 of the Employment Insurance Act:
"labour dispute" means a dispute between employers and employees, or between employees and employees, that is connected with the employment or non-employment, or the terms or conditions of employment, of any persons;
The evidence in the case at bar established that, when the Teachers' Federation opted to order a teachers' walkout, there were still ongoing negotiations with the employer. The action was clearly as a result of government intervention by legislating an end to the dispute between the teachers and their employer. The Board could conclude that the dispute leading to the work stoppage was more in the nature of a political protest than as a result of a dispute between "employer and employees" as provided in the definition of "labour dispute" in the Act.
In CUB 44692C the facts were analogous to the one in the case at bar in that there were ongoing negotiations between the teachers involved and their employers when approximately 126, 000 members of the Provincial Teachers' Federation representing five affiliated unions went on strike to protest against government proposed legislation. Umpire Stevenson found that the work stoppage was not related to any dispute between Boards of Education (the employers) and teachers (the employees) but was in the nature of a political protest against the provincial government.
There is a long list of authorities stating that the determination of the question as to whether a claimant's loss of employment is attributable to a labour dispute pursuant to subsection 36(1) of the Employment Insurance Act is a question of facts (CUBs 16952, 16903. 16653 and the Federal Court of Appeal decision in A-209-89). The jurisprudence has also unequivocally established that the Board of Referees is the primary tribunal for the finding of facts in employment insurance cases.
In 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 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..."
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, 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 [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."
And, in 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 entirely compatible with the evidence presented which established that the Teachers' Federation's decision to have its members walkout was in reaction to the government's decision to impose a legislated end to its negotiation strategy. I cannot find that the Board based its decision on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before it. To the contrary, the Board's decision is well founded on the evidence before it.
Accordingly, the appeal is dismissed.
Guy Goulard
UMPIRE
OTTAWA, Ontario
November 26, 2008