TRANSLATION
IN THE MATTER of the EMPLOYMENT INSURANCE ACT
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IN THE MATTER of a claim for benefits by
A.B.
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IN THE MATTER of an appeal to an Umpire by the Commission from the decision of a Board of Referees given on May 12, 2009 at Gaspé, Quebec.
LOUIS de BLOIS, Umpire
This is an appeal from the decision of a Board of Referees given on May 12, 2009 allowing the claimant's appeal from the Employment Insurance Commission's decision to deny her claim for regular Employment Insurance benefits on the ground that she had voluntarily left her employment with Les Ateliers Ferroviaires de Mont-Joli Inc. on March 6, 2009 so that she could move back home to the Magdalen Islands.
The Commission determined that the claimant had left her employment without just cause within the meaning of sections 29(c) and 30 of the Employment Insurance Act (the Act).
The issue is whether the Board of Referees erred in fact and in law in finding that the claimant had just cause for leaving her employment voluntarily within the meaning of section 29(c) of the Act.
The Commission argued that the claimant's leaving was not her only reasonable alternative, as stipulated by section 29(c) of the Act.
Section 29(c) of the Act reads as follows:
just cause for voluntarily leaving an employment or taking leave from an employment exists if the claimant had no reasonable alternative to leaving or taking leave, having regard to all the circumstances, including any of the following:
...
(vi) reasonable assurance of another employment in the immediate future.
The determination as to whether the claimant had just cause for leaving her employment voluntarily is a mixed question of fact and law that is mainly a legal issue. The standard of review is reasonableness with limited deference (Hickey v. Canada (AG), 2008 FCA 330).
The determination as to whether the Board of Referees erred in law in failing to consider whether the claimant had no reasonable alternative to leaving is a question of law. The applicable standard of review in such a case is correctness (Martens v. Canada (AG), 2008 FCA 240).
The issue to be decided by the Board of Referees was whether the claimant had no reasonable alternative to leaving.
At the hearing before the Board of Referees, the claimant stated that the insurance premiums on her house in the Magdalen Islands had increased substantially. This situation convinced her that in view of the part-time employment she held in Mont Joli, she would be better off financially if she moved back into her house on the Magdalens Islands, where she could very easily find a job in the restaurant industry.
The Board of Referees stated that it found A.B.'s explanations regarding her approach to her employment search in the Magdalen Islands and specifically in the restaurant industry to be credible. Once back home, the claimant was readily able to demonstrate her experience, and she quickly found a job, i.e., 17 days later.
The claimant has many years' experience in the restaurant industry. She also indicated that she had reasonable assurance of finding employment immediately upon her return. When the claimant arrived in the Magdalen Islands, employers in the restaurant sector were looking for employees in that field on a regular basis.
Section 29(c) stipulates the following:
just cause for voluntarily leaving an employment or taking leave from an employment exists if the claimant had no reasonable alternative to leaving or taking leave, having regard to all the circumstances ...
(vi) reasonable assurance of another employment in the immediate future.
In CUB 49237, Simpson J. determined that assurance of employment does not mean a concrete offer but rather provides some flexibility.
It can readily be concluded that it is a question of evidence enabling the Board of Referees and the Umpire to determine, using their good judgement, whether, having regard to all the circumstances, the claimant had just cause for leaving her employment.
It is a mixed question of fact and law.
The Board of Referees stated that it found A.B.'s explanations regarding her approach to her employment search in the Magdalen Islands to be credible.
With credibility being at issue as unequivocally stated by the Board of Referees, there is no need for the Umpire to intervene. Since the Board of Referees is the trier of fact, it heard the evidence and was in the best position to assess the credibility of the witnesses heard at the hearing.
Under the circumstances, there is no need for the Umpire to intervene. The appeal is therefore dismissed.
LOUIS de BLOIS
UMPIRE
Quebec City, Quebec
August 16, 2010