CUB 76282

GUY GOULARD, Umpire

The claimant worked for the City of Gatineau until June 3, 2009. He filed an initial claim for benefits, which was established effective June 7, 2009. The Commission determined that the claimant did not lose his employment as a result of his own misconduct and notified the employer of this decision.

The employer appealed from the Commission’s decision to a Board of Referees, which dismissed the appeal. The employer appealed from the Board’s decision to an Umpire. This appeal was heard in Ottawa, Ontario, on December 16, 2010. The claimant attended the hearing and was represented by Counsel C.R. The employer was represented by O.G.

The versions given by the claimant and the employer regarding the events that led to the dismissal can be summarized as follows.

The employer said that it dismissed the claimant because the claimant had taken some items belonging to the employer. These items included a staircase, a sink, roofing, and windows. In addition, the claimant allegedly used tools belonging to the employer, namely a truck, to transport the items mentioned above without the employer’s permission during his hours of work. Another employee and a foreman were also dismissed for their involvement in this incident.

The claimant maintained throughout the case that he believed he had permission to take the items in question. He explained that these were items that were left in an abandoned building that had to be demolished. He said that he had permission from the foreman to take the staircase and give it to another employee. These two individuals were also dismissed. The claimant added that, following the employer’s accusations, all the items were returned to the employer. The claimant also said that it was a common practice for employees of the City of Gatineau to take such abandoned items.

The employer said that the items in question were not abandoned and that no decision had been made regarding the demolition of the building from which the items were taken. The employer acknowledged that there was no written policy on the types of actions in question in the allegations against the claimant.

The Commission accepted the claimant’s explanations regarding the employer’s allegations and determined that the claimant was not dismissed as a result of his own misconduct.

The employer and the claimant maintained their positions as described above before the Board of Referees.

In a well-written decision, the Board of Referees summarized in detail the evidence given by the employer and the claimant. After a thorough analysis of this evidence, the Board gave very good reasons for its decision to dismiss the employer’s appeal. The Board accepted the claimant’s explanations and found that, given that it had been a common practice for a long time, the claimant could not expect that the alleged actions would lead to his dismissal.

The employer appealed from the Board of Referee’s decision to an Umpire. The employer and the claimant maintained their positions, which they had presented before the Board, before me. They submitted essentially the same arguments that they had submitted before the Board. The Commission argued that the Board’s decision was well founded on the evidence and the relevant case law and that the employer’s appeal should be dismissed.

According to 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), the Board of Referees is the trier of fact in assessing the evidence and the testimony before it. An Umpire may not substitute his or her opinion for that of a Board of Referees unless he or she finds that its decision was made in a perverse or capricious manner or without regard for the material before it.

In CUB 43808, Marin J. stated as follows:

The Board is the trier of fact, and an Umpire does not easily trample upon such a finding as it had the best opportunity of observing witnesses, their demeanour and behaviour under questioning.

In Ash (supra), Desjardins J. stated as follows:

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 Guay, Marceau J. noted the following:

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 Le Centre de valorisation des produits marins de Tourelle Inc. (supra), Létourneau J. stated that the role of an Umpire is limited to deciding whether the Board of Referees’ assessment of facts was reasonably compatible with the evidence in the docket. More recently, Sexton J. added the following in Peace (supra):

In Budhai, 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) 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.

I have reviewed the evidence and the well-supported decision of the Board of Referees in particular, and I find that the Board correctly analyzed and summarized the evidence in the docket and at the hearing. The Board accepted the claimant’s testimony to the effect that, given the practice known to the claimant of allowing employees to take abandoned items and given that the claimant was entitled to think that the items he had taken were destined to be thrown away, the claimant could not expect that his actions would lead to his dismissal.

In CUBs 72002, 72003, 72004, 72005, 72062, 72063 and 72064, I referred to the case law in Tucker, A-381-85; McKay-Eden, A-402-96; and Langlois, A-94-95, and I noted that in Langlois (supra) Pratte J. stated the following:

The misconduct referred to in section 28(1), and which, like voluntarily leaving one’s employment, may entail the disqualification from benefits of the claimant throughout his benefit period, pursuant to section 30.1, is not a mere breach by the employee of any duty related to his employment; it is a breach of such scope that its author could normally foresee that it would be likely to result in his dismissal.

I also pointed out that the Federal Court of Appeal had determined in Choinière, A-471-95, that the fact that an employer determined that a behaviour merits dismissal is not sufficient in itself to establish that the behaviour in question constitutes misconduct within the meaning of the Employment Insurance Act. Marceau J. wrote the following in that case:

We do not think so, in light of the decisions of this Court, which has gone to great lengths on many recent occasions to repeat that it was a mistake to think for one moment that the employer’s opinion concerning the existence of misconduct that would warrant dismissal might suffice to trigger the penalty, now so arduous, of section 28 and that on the contrary an objective assessment was needed sufficient to say that misconduct was in fact the cause of the loss of employment.

I also emphasized that, in the seven dockets in question, the Board had reviewed the evidence and had found that the claimants involved could not suspect that their behaviour could put their employment at risk, given that the behaviour had been tolerated for some time, even by the foremen. I found that the Boards could determine on the basis of the evidence provided that the behaviour of the claimants did not constitute misconduct within the meaning of the Employment Insurance Act. I dismissed the Commission’s appeals. The Federal Court of Appeal dismissed the Commission’s appeals from my decisions (Castonguay, A-189-09). Noël J. stated that I was correct in finding that the evidence before the Board could justify its decision to the effect that the alleged action did not constitute misconduct within the meaning of the Employment Insurance Act because the claimant did not know that his actions could lead to his dismissal.

Consequently, I find that the Board of Referees did not err in its decision. The employer’s appeal is dismissed.

Guy Goulard

UMPIRE

OTTAWA, Ontario
January 21, 2011