CUB 68815

GUY GOULARD, Umpire

The claimant worked for Manufacturier Patella Inc. from September 25, 1978 to February 22, 2006. He filed an initial benefit claim, which was established effective February 26, 2006. The Commission notified the claimant that he was entitled to sickness benefits but, after that, he would not be entitled to regular benefits because he left his employment without just cause and that was not the only reasonable alternative in his case. Consequently, the Commission imposed an indefinite disqualification effective after his sickness benefit period.

The claimant appealed from that decision to a Board of Referees, and the Board allowed the appeal. The Commission appealed from the Board's decision to an Umpire. That appeal was heard at Rimouski, Quebec, on July 18, 2007. The claimant was present and represented by counsel Corinne Lestage.

In his benefit claim, the claimant indicates he is requesting sickness benefits. He also indicates he left his employment because he was involved in a divorce and, given the amount of support claimed by his spouse, he had financial problems. He submitted a medical certificate dated March 14, 2006, indicating he was unable to work for a month.

In Exhibit 5, the claimant writes:

[Translation]

I did not quit my job for health reasons. I quit because I was at the end of my rope, I'd had it. As a result of my divorce, I have debts from my lawyer, I had an accident and don't have a car any more, everything is going badly! I am currently suffering from depression and unable to work.

The employer indicated that the claimant's reasons for leaving were not very clear but he had mentioned his divorce and large support payments. The employer had offered him leave without pay but the claimant refused the offer.

The claimant was present before the Board of Referees and represented by counsel Hélène Vallière. He submitted documents attesting to the assistance he was receiving from the CRSSC Rimouski and the Répit du Passant. The documents attest to the claimant's socio-economic, family, psychological and financial problems after his divorce and a car accident. A medical certificate indicates he showed symptoms of depression and anxiety.

Counsel for the claimant pointed out that the claimant's employer had offered him sickness insurance benefits, which he refused. She argued that the claimant's resignation was caused by the limited use of his right arm as well as a series of events such as divorce, support payments, a car accident and depression, all of which had affected his judgment.

The Board of Referees reviewed the evidence and indicated that the claimant's circumstances could be considered just cause for leaving employment, within the meaning of section 29(c) of the Employment Insurance Act, that is "any other reasonable circumstances." Based on the decision of Teitelbaum J. in CUB 47398, the Board allowed the claimant's appeal.

On appeal, the Commission argued that the Board of Referees erred in fact and in law in deciding that the claimant had established just cause within the meaning of section 29(c) of the Act for leaving his employment. The Commission argued that the Board failed to consider the issue of whether the claimant's voluntary leaving was the only reasonable alternative in his situation. The Commission pointed out that the evidence shows that the claimant left his employment because of the consequences of his divorce and did not provide any evidence that he had to leave due to sickness. The Commission argued that the claimant, in fact, had other reasonable alternatives to leaving his employment under the circumstances, such as accepting his employer's offer of leave without pay or collecting wage-loss insurance.

Section 29(c) of the Act reads as follows:

29(c) 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: (emphasis added)

The Act requires that all the claimant's circumstances be taken into consideration in determining whether the claimant has established just cause for leaving an employment. As Stevenson J. indicates in CUB 57874:

In determining whether a claimant had just cause to leave a job the Employment Insurance Act requires us to have regard to all the circumstances—including economic circumstances. Failure to consider and give sufficient weight to such circumstances is an error of law. I refer to my decisions in CUBs 35229, 46437 and 54416.

According to the case law in 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), an Umpire is not to substitute his/her opinion for the opinion of a Board of Referees, unless the Board's decision appears to have been made in a perverse or capricious manner or without regard for the material before it. In the decision in Ash (supra), Desjardins J. writes:

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 the decision in Le Centre de valorisation des produits marins de Tourelle Inc. (supra), Létourneau J. states that the role of an Umpire is limited "to deciding whether the view of facts taken by the Board of Referees was reasonably open to them on the record."

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

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.

In this case, the Board reviewed all the claimant's circumstances and, in doing so, reached the finding that the claimant had established just cause within the meaning of the Act for leaving his employment. That decision is entirely compatible with the evidence in the docket.

The Umpire is not empowered to decide a case again or to substitute his/her discretionary authority for the Board's authority. The jurisdiction of the Umpire 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, the Umpire must dismiss the appeal.

The Commission did not show that the Board of Referees erred in that way.

Consequently, the appeal is dismissed.

Guy Goulard

UMPIRE

OTTAWA, Ontario
July 31, 2007