CUB 75101

Honorable Denis Durocher, Umpire

The Commission refused to pay the claimant, Mr. A.B., employment insurance benefits on the grounds that he had lost his employment due to his own misconduct. The Board of Referees allowed the appeal, stating that it could not prefer the evidence offered by the Commission, nor the evidence presented by the claimant.

The claimant‘s employer appeals this decision on the grounds that claimant made false statements at the hearing.

The facts are correctly recited by the Board of Referees. The claimant was sent by his employer on a training course in Calgary. He got a telephone call from his wife that she was ill, according to his statements and evidence. He notified the course manager and left. He also left messages to his employer. Upon his return he was given a letter of dismissal (exhibit 18.2).

The employer denied receiving these messages. As to the notice to the course manager by the claimant, Mr. C.D., (the President of the employer), contacted the course manager after the hearing. The letter stated that he was not advised by the claimant that he was leaving. The letter (undated) confirming this statement is annexed to the notice of appeal to the Umpire, by the employer (exhibit 24.3).

This appeal cannot be allowed for several reasons. An Umpire cannot receive and consider new evidence which has not been put before the Board of Referees, as the proceedings are not "de novo", but rather in the nature of judicial review ⁽¹⁾.

Also, the evidence offered cannot be legally qualified as ‘new’. Such evidence must not have been available at the time of the hearing. ‘Available’ here means that the evidence existed at the time of the hearing, and that it could be obtained by reasonable means, in time for the hearing. It must also be relevant, material and of importance for the decision, i.e. had it be known and shown it would or could change it.

The docket and the decision of the Board clearly show that this information could easily be obtained from the course manager. A manager of the employer states that the course manager told him that the claimant ‘did not show up’ in the course after the first day. No reasons were given to the trainer and he did not contact them again. This conversation took place on April 2 or 3, 2009, according to exhibits 6 and 24.3, and before the claimant‘s dismissal. It was available.

It also appears that his decision was based on the claimant‘s abandonment of his job (see exhibit 18.2), and on previous incidents (exhibit 18.3 and 18.4). Whether or not he notified the course manager does not appear to be a relevant and important consideration for his dismissal. The employer did not, either, verify if claimant‘s wife was (or not) ill, seriously enough to justify his leaving the course.

The Commission did not specifically verify the claimant‘s assertion on this question, although it was available.

The onus of the proof, in the matter as presented, belonged to the Commission. The Board of Referees did analyze, consider and evaluate all relevant evidence and facts offered by all parties and present in the docket. It decided that it could not prefer "one set of events over the other", and find more credible "one account of events over the other". It was thus correct in stating that the benefit of the doubt must be given in favour of the claimant, as provided in section 49(2) of the E.I. Act. The Board had reasonable grounds to find that the Commission had not discharged the onus of proving that the claimant had lost his employment due to his own misconduct.

The evidence now offered by the appellant employer, if accepted, would go to the credibility of the claimant. It appears in the Board of Referees‘ decision that it believed the assertion of the claimant as to the notice given by him to the course manager. It has often been held that an Umpire is not to disturb the finding of a Board as to credibility, unless it is not sustainable on the material before it ⁽²⁾. An Umpire may not vary the conclusion of a Board as to credibility, where it is supported by the evidence, even though he may perhaps be inclined to come to a different finding.

Therefore, for all these reasons the appeal must be dismissed.

However, it should be noted that it is the misconduct of the claimant, as contemplated in the Employment Insurance Act, that has not been established. This does not signify that the employer was not justified to terminate the claimant‘s employment. This is not what this decision, and the Board of Referees‘ decision says.

Denis Durocher

UMPIRE

ST-BRUNO-de-MONTARVILLE, Québec
July 5, 2010

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⁽¹⁾ Canada v. Taylor (1991) F.C.J. no. 508 A.G.V. McCarthy (1994) F.C.J. no. 1158

⁽²⁾ Canada (A.G.) v. Cole [1983] 1 F.C. 425 F.C.A Canada (A.G.) V Childs A-418-97, [1998] F.C.A. see also CUB 35648; CUB 42124