CUB 75881

GUY GOULARD, Umpire

The claimant worked for Cableco Inc. until November 6, 2009. She filed a claim for Employment Insurance benefits that was established effective November 8, 2009. The Commission determined that the claimant left her employment without just cause, and it imposed an indefinite disqualification as of November 8, 2009.

The claimant appealed from the Commission’s decision to a Board of Referees, which allowed the appeal. The Commission appealed from the Board’s decision to an Umpire. This appeal was heard in Montreal, Quebec, on October 7, 2010. Although a notice of hearing was sent to the claimant, she did not attend the hearing before the undersigned. She had had no contact with the Commission or the Office of the Umpire since April 28, 2010, when she sent a letter from a former employee of Cableco Inc. The Commission argued that the Board of Referees erred in fact and in law in deciding that the claimant established just cause for leaving her employment within the meaning of the Employment Insurance Act.

The relevant facts in this appeal are summarized below.

The claimant was absent from work for two weeks because both her daughters were seriously ill. She provided evidence to that effect. The claimant indicated in Exhibit 4 that, during the second week of her leave, she telephoned her employer to ask whether she could report to work the following Monday, provided her children were well again. The employer replied that it did not know if the claimant could report to work the following Monday because it had to speak to someone else at the office about it. The employer noted that the claimant had missed a great deal of work and indicated that it would have an answer for the claimant on the Friday. Afraid of losing her job, the claimant began looking for other employment. Before receiving an answer, the claimant sent an email to her employer (Exhibit 7-2). In the email, the claimant indicated that she was uncertain about her future and had doubts about her life. She also mentioned that she needed a job that paid more. She noted that the employer gave her a hard time about her absences, but she explained that they were the result of her children being ill. The claimant told the employer that she would understand if the company wanted to hire someone else. The claimant wrote that she had spent two hellish weeks with her daughters, who had been very ill, one after the other. She indicated that she was burned out, that she had no energy and that she was totally spent. She told the employer that it could write to her if it wanted. She reiterated that she would understand if the company were to dismiss her. She concluded by saying that she needed time. This email was sent at 1:52 p.m. on November 24, 2009.

The next day, November 25, 2009, the employer answered the claimant by email and indicated that it considered her email from the day before to be her resignation, which it accepted. The employer wrote that it had checked with the Canada Employment Insurance Commission, which confirmed that the claimant’s email could be considered a notice of resignation. The employer also indicated that the company would be sending the claimant her papers and her 4% minus the amount she owed to the petty cash.

On appeal from the Commission’s decision to the Board of Referees, the claimant argued that she never resigned from her employment. Also, she noted that the employer did not ask her to come into the office to discuss the situation. Furthermore, she insisted that she never signed any letter of resignation.

Neither the claimant nor the employer attended the hearing before the Board of Referees, which reviewed and summarized the evidence in the docket. The Board noted that its interpretation of the evidence in the appeal docket was considerably different from that of the Commission. The Board allowed the claimant’s appeal for the following reasons:

[Translation]
The claimant was indeed absent for a period of two weeks in order to take care of her children, who had come down with AH1N1, and, during that time, she was in contact with her employer, which kept pussyfooting around when it came to her return to work.

The claimant was clearly in a shaky physical and emotional state, as she stated in the email she sent to the employer (Exhibit 7-2).

The company’s financial situation was obviously not solid. Several employees had been laid off on account of a shortage of work, and the claimant suffered as a result of this situation.

The claimant therefore did not resign. Rather, she expressed to her employer her concerns and the needs she had regarding her conditions of employment.

The Board of Referees finds itself faced with two conflicting versions. Under the circumstances, the Board of Referees must give the claimant the benefit of the doubt, pursuant to section 49(2) of the Act.

On appeal from the Board of Referees’ decision, the Commission argued that, contrary to what the Board determined, the claimant resigned from her employment without showing just cause for doing so, pursuant to the Employment Insurance Act. The Commission stated that the claimant simply decided to stay at home instead of contacting her employer to discuss the situation.

I note that, in her email of November 24, the claimant did not indicate that she was resigning from her employment. At the very most, she made it known that she would have understood if the employer decided to dismiss her because of her absences, although justified, to take care of her children. The claimant indicated that she was very fragile emotionally and that she was considering her future. The claimant concluded by inviting the employer to reply to her in writing. The employer gave an answer the following day. The claimant’s email was considered her notice of resignation, which the employer accepted. Clearly, it would have been futile for the claimant at that point to attempt to discuss the situation with the employer. She encouraged the employer to get in touch, only to be told that her employment had been terminated.

The case law holds that the Board of Referees is the trier of fact in assessing the evidence and the testimony before it. The Federal Court of Appeal stated the following on the matter in Guay (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 (Guay, A-1036-96; Le Centre de valorisation des produits marins de Tourelle Inc., A-547-01; McCarthy, A-600-93; Ash, A-115-94; Ratté, A-255-95; and Peace, A-97-03) also holds that an Umpire cannot substitute his or her opinion for that of a Board of Referees, unless the Board appears to have made the decision in a perverse or capricious manner or without regard for the material before it. In Ash (supra), Desjardins J. stated:

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 Le Centre de valorisation des produits marins de Tourelle Inc. (supra), Létourneau J. stated that the role of an Umpire was limited to deciding whether the Board of Referees’ assessment of facts was reasonably compatible with the evidence before the Board.

And, more recently, in Peace (supra), Sexton J. added:

In Canada (Attorney General) v. Sacrey, 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 v. Ryan, [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.

The role of the Umpire is not to retry a case or to 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 and rendered an unreasonable decision, the Umpire must dismiss the appeal.

In this case, the Board correctly summarized and analyzed the evidence in the docket and reached a decision that is entirely compatible with that evidence.

Consequently, the appeal is dismissed.

Guy Goulard

UMPIRE

OTTAWA, Ontario
November 10, 2010