Employment Insurance (EI)

Reasons and decision

Decision

[1] The appeal is dismissed.

Introduction

[2] On June 12, 2015, the Tribunal’s GeneralDivision found that:

• The Appellant had failed to show just cause for voluntarily leaving hisemployment pursuant to sections 29 and 30 of the Employment Insurance Act (the “Act”).

[3] The Applicant filedan application for leave to appeal to the Appeal Division on September 16, 2015after the decision was communicated to her on August 27, 2015. Leave to appeal was granted on September 30,2015.

Form of hearing

[4] The Tribunal decidedto hear this appeal by teleconference for the following reasons:

• the complexity of the issue or issues;
• the fact that the parties’credibility was not one of the main issues;
• the information in the file,including the need for additional information;
• the need to proceed as informallyand quickly as possible while complying with the rules of natural justice.

[5] During the hearing,the Appellant was present and was represented by Jean-Guy Ouellet,counsel. The Respondent was representedby Julie Meilleur.

The law

[6] Under subsection 58(1) of the Department of Employment and SocialDevelopment Act, the only grounds of appeal are that:

1. (a) the General Division failed toobserve a principle of natural justice or otherwise acted beyond or refused toexercise its jurisdiction;
2. (b) the General Division erred inlaw in making its decision or order, whether or not the error appears on theface of the record; or
3. (c) the General Division basedits decision or order on an erroneous finding of fact that it made in aperverse or capricious manner or without regard for the material before it.

Issue

[7] The Tribunal mustdetermine whether the General Division erred in finding that the Appellant hadvoluntarily left his employment without just cause within the meaning ofsections 29 and 30 of the Act.

Argument

[8] The Appellant’s arguments in support ofhis appeal are as follows:

• The General Division erred inlaw in finding that the Appellant had left his employment voluntarily whereasthe employer repeatedly stated that the Appellant’s position was an on-callposition only and he had no assurance of guaranteed hours;
• The General Division erred inlaw by imposing a prior obligation to contact his supervisor again, given thecircumstances of the employment;
• The General Division’sdecision constitutes an error in law in assessing the evidence, particularly byholding that the absence of notes on file at the human resources office wasgood reason to disregard sworn testimony by the Appellant in person that he hadrequested a transfer from his place of work and had subsequently contacted thesaid employer;
• The Tribunal Member assumedthat the Appellant had been assigned to the workplace the following day andstated that the Appellant [translation] “provided no explanation” concerning apossible reason for the dismissal. And yet, comments about the approach takenwith users of the premises concerning the safety measures to be followed appearto have generated several notices from the immediate superior in question, andat the very least suggest some dissatisfaction with the Appellant’s jobperformance;
• Furthermore, despite hisefforts to be assigned to a different location, the Appellant was not calledback to work, even though the Employer had said it was willing to take him back(paragraph 16 (l)) of the General Division’s decision). The absence of a callback to work seems to support the claim that, following complaints on the lastday of work, the said employer was no interested in using the Appellant’sservices, contrary to the conclusions of the General Division Member;
• In its decision, the GeneralDivision erred in law and in fact in finding that, given the circumstances ofthe Appellant’s employment contract, he should have contacted another companyrepresentative immediately when his employer failed to assign him to anotherlocation, or should have continued working at the said location, althoughnothing on file shows that he was required to work at this location;
• Given the failure to takeaccount of essential information in analyzing the case and in the absence of aclear explanation of the reasons, the General Division’s decision cannot beupheld and the matter is referred back to the General Division for a hearingbefore a different Member.

[9] The Respondent’s arguments against theAppellant’s appeal are as follows:

• the General Division did noterr in law or in fact and it properly exercised its jurisdiction;
• the Appeal Division is notempowered to retry a case or to substitute its discretion for that of theGeneral Division; The Appeal Division’s powers are limited by subsection 58(1)of the Department of Employment andSocial Development Act;
• unless the General Divisionfailed to observe a principle of natural justice, erred in law or based itsdecision on an erroneous finding of fact that it made in a perverse orcapricious manner or without regard for the material before it, and itsdecision is unreasonable, the Tribunal must dismiss the appeal;
• the issue that the General Division had to decide waswhether the Appellant had just cause for voluntarily leaving his employmentwith Services ménagers Roy Ltée pursuant to sections 29 and 30 of the Act;
• In the circumstances, theAppellant did not show that his working conditions were so intolerable that hehad no alternative but to resign, without taking certain steps to resolve hissituation;
• The Appellant did not have justcause to leave his employment considering that none of the conditions providedin subsection 29c) of the Act apply,and considering that he did not show that leaving his employment was the onlyreasonable solution in his case, having regard for all of the circumstances.

Standards of review

[10] The parties submittedto the Tribunal that the standard of judicial review applicable to a decisionof a Board of Referees (now the General Division) or an Umpire (now the AppealDivision) on questions of law is correctness (Martens v. Canada (AG), 2008 FCA 240) and that the standard ofreview applicable to questions of mixed fact and law is reasonableness (Canada (AG) v. Hallée, 2008 FCA 159).

[11] The Tribunal notesthat the Federal Court of Appeal, in Canada(AG) v. Jean, 2015 FCA 242, states at paragraph 19 of its decision thatwhen the Appeal Division acts as an administrative appeal tribunal fordecisions rendered by the General Division of the Social Security Tribunal, theAppeal Division does not exercise a superintending power similar to thatexercised by a higher court.

[12] The Federal Court ofAppeal goes on to underscore that not only does the Appeal Division have as much expertise as the GeneralDivision of the Social Security Tribunal, and thus is not required to showdeference, but an administrative appeal tribunal also cannot exercise thereview and superintending powers reserved for higher provincial courts or, inthe case of “federal boards,” for the Federal Court and the Federal Court ofAppeal.

[13] The Federal Court ofAppeal concluded by underscoring that where it hears appeals pursuant tosubsection 58(1) of the Department ofEmployment and Social Development Act, the mandate of the Appeal Divisionis conferred to it by sections 55 to 69 of that Act.

[14] In particular, itmust determine whether the General Division "erred in law in making itsdecision, whether or not the error appears on the face of the record" orwhether the General Division "based its decision or order on an erroneousfinding of fact that it made in a perverse or capricious manner or withoutregard for the material before it."

[15] The mandate of theAppeal Division of the Social Security Tribunal described in Jean was subsequently confirmed by theFederal Court of Appeal in Maunder v.Canada (AG), 2015 FCA 274.

Analysis

[16] TheAppellant worked for the employer, Les Services ménagers Roy Ltée, during theperiod from September 17, 2012 to September 26, 2012. Over this time, heaccumulated a total of 23 hours of work. He worked on call, with no guaranteedhours.

[17] The Appellantcontends that he therefore did not have an employment within the meaning of the Act because could not work unless hewas called in, and he had no guaranteed hours, as the employer confirmed.

[18] On the matter ofemployment, the record clearly shows that the Appellant was employed by LesServices ménagers Roy Ltée and that an employer-employee relationship existed. He therefore had employee status within themeaning of subsection 2(1) of the Act.Moreover, section 29 of the Act provides that, for the purposes of interpreting sections 30 to 33, “employment”means any employment held by a claimant within the claimant's qualifyingperiod or benefit period.

[19] This ground of appeal must therefore berejected.

[20] TheAppellant complains that the General Division did not take account of hisevidence at the hearing that he had not left his employment, but had insteadrequested a transfer to a different workplace.

[21] The Tribunal,however, notes that the General Division did not give credibility to theAppellant’s version submitted at the hearing, when it stated the following:

[Translation]
[25] The Tribunalunderscores that in several of his statements prior to the hearing, theAppellant clearly said he had left his employment voluntarily. He gave variousreasons to explain the circumstances that had led him to voluntarily quit hisemployment, only to try to show later that he had not voluntarily left theemployer Les Services ménagers Roy Ltée.

[22] Indeed, the Appellanthad stated in his application for reconsideration that he had quit his jobbecause he felt he was being mistreated, and because he preferred to try tofind another job or start a new career during his benefit period (GD3-32).

[23] In an interviewintended to support his application for reconsideration, the Appellant said hehad left for a number of reasons, including the fact that his mother was ill.He also felt he was not getting enough hours and he did not like his workenvironment (GD3-33).

[24] In a subsequentinterview, he mentions that he thought he was entitled to benefits and that hecould accept or leave an employment because he was already qualified (GD3- 34).

[25] In the Tribunal’sopinion, the General Division rightly gave more weight to the Appellant’sinitial, spontaneous statements attesting to a voluntary departure without justcause. Furthermore, the employer confirmed that the Applicant had quit his jobin the record of employment (GD3-16), in the request for payroll information(GD3- 18, 20) and during an interview with a representative of the Respondent(GD3-21).

[26] The evidence beforethe General Division shows that it was the Appellant, not the employer, whoinstigated the job loss given that, as the Appellant mentioned in his testimonybefore the General Division, he had refused to return to work unless he wasassigned to a different workplace. The Appellant could very well have kept hisjob but for the fact that he refused to put up with his supervisor’scomplaints.

[27] The Tribunal is notsatisfied that the Appellant’s working conditions were unbearable to the pointthat he had no alternative but to leave his employment immediately.

[28] The Appellant alsocriticizes the General Division for giving more weight to the employer'sevidence even though the employer was absent from the hearing. The Tribunaldoes not consider that the mere fact one party is present and the other isabsent should be a decisive factor. The General Division is free to givepreference to the credibility of one over the other.

[29] The Tribunal is notempowered to retry a case or to substitute its discretion for that of theGeneral Division. The Tribunal’s powers are limited by subsection 58(1) of the Department of Employment and SocialDevelopment Act. Unless the General Division failed to observe a principleof natural justice, erred in law or based its decision on an erroneous findingof fact that it made in a perverse or capricious manner or without regard forthe material before it, the Tribunal must dismiss the appeal.

[30] The Tribunal cannotconclude that the General Division made such an error. The decision of theGeneral Division is compatible with the evidence on file and consistent withthe relevant legislative provisions and case law.

Conclusion

[31] The appeal is dismissed.