Employment Insurance (EI)

Reasons and decision

Decision

[1] The appeal is allowed in part. File AD-16-503 is referred back to the General Division for a new hearing only on the issue of penalty.

Introduction

[2] On February 28 and 29, 2016, the Tribunal’s General Division found that:

• The Appellant failed to prove that he had just cause for leaving his employment pursuant to sections 29 and 30 of the Employment Insurance Act (Act);
• The imposition of a penalty under section 38 of the Act was justified;
• The calculation of the weekly rate of Employment Insurance benefits under section 14 of the Act, as well as the number of 20 weeks during which benefits could be paid in accordance with Schedule I of subsection 12(2) of the Act is well-founded.

[3] On April 4, 2016, the Appellant filed an application for leave to appeal before the Appeal Division after receiving the decisions on March 7, 2016. Leave to appeal was granted on June 3, 2016.

Type of hearing

[4] The Tribunal determined that the appeal would be heard via 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 on file, including the need for additional information;
• The need to proceed as informally and quickly as possible while complying with the rules of natural justice.

[5] The Appellant attended the hearing and was represented by Yvan Bousquet. The Respondent was represented by Manon Richardson.

The law

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

1. (a) The General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
2. (b) The General Division erred in law in making its decision, whether or not the error appears on the face of the record; or
3. (c) The General Division 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.

Issue

[7] The Tribunal must determine if the General Division erred when it found that:

• The Appellant had failed to prove that he had just cause for leaving his employment pursuant to sections 29 and 30 of the Act;
• The imposition of a penalty under section 38 of the Act was justified;
• The calculation of the weekly rate of Employment Insurance benefits under section 14 of the Act, as well as the number of 20 weeks during which benefits could be paid in accordance with Schedule I of subsection 12(2) of the Act was well-founded.

Submissions

[8] The Appellant submitted the following arguments in support of his appeal:

• The main issue is that the Respondent's front-line officer receives information from the employer, which he considers as confirmed fact. Consequently, when the officer then contacts the claimant, the latter does not get the opportunity to speak freely and submits a close-ended questionnaire in which he does not have control of his answers. This process is also implemented at the administrative review. It is clear that in proceeding in such a manner, the rest of the information that is received throughout the process would be tainted.
• He explained that he had been surprised by the officer's call, that he didn't understand much of what was happening, and that he had been unable to properly explain himself. Only three lines had been written and transcribed from this telephone interview.
• It seems that this Tribunal member did not deem it necessary to bring up this significant piece of evidence, to assess its relevance, and to indicate the reasons why he did not take it into consideration. This is especially significant given that he had made a comment at the hearing to the effect that this was increasingly being reported to him.
• It is an error of fact and law to suggest that a Tribunal member need not consider the facts regarding the attitudes of a respondent's agents during an investigation.
• In light of the facts brought forward by the Appellant on the manner in which he was treated by the officer who had supposedly [translation] "interviewed" him, this version cannot be considered an original account offered spontaneously since the officer managing the file seems to have taken the information that had previously been obtained from the employer as fact and thus structured the interview along these lines, without leaving the Appellant a reasonable amount of time to speak freely.
• It is therefore an error of law to have applied case law to initial and spontaneous statements.
• In a statement written and signed on August 27, 2015 (GD3-31), and made during his testimony at the hearing (GD6-4), the Appellant submitted that his employer had found out that he was looking for a higher-paying job and that he wasn't happy about it. Consequently, the Appellant found that his employer was calling back other, less [translation] "senior" employees, most likely in retaliation.
• It therefore constitutes another error of law to have failed to consider these facts or to at least have stated why they were not considered.
• Furthermore, as explanation for the employer's unwillingness to set the record straight, on top of the fact that the employer was upset over hearing about his job search, another reason could be a [translation] "time bank set up by the employer".
• Although he had been invited to attend, the employer was not present at the hearing. The member was therefore unable to interview him and question him on how his version of the facts differed.
• The member therefore based his decision on the employer's version of events, of which many facts entered as evidence may not be accurate.
• If the Appellant had quit on February 14, 2014, why had the employer waited until April 8, 2014, to draft the Record of Employment whereas the Act stipulates seven days to do so?
• The employer's version is based on hearsay, and was transcribed by an initial officer and then reported by another in a report to support the decisions rendered. The Appellant, on the other hand, when given the opportunity, had testified that he was laid off because of a shortage of work and had reported these facts consistently (GD3-7, initial statement; GD3-31, administrative review; and G26-2 to GD6-5, hearing).
• Although he had been duly summoned, the employer did not attend the hearing. Given the inconsistencies raised by the Respondent's transcribed version, it would have been important to hear him. The inconsistencies supported by evidence brought forth at the hearing would have at least played to the Appellant's favour.
• Jurisprudence has established that the credibility of parties is difficult to assess via telephone interviews or teleconference hearings. The employer's absence at the hearing should not present a disadvantage to the Appellant.
• The Tribunal member's refusal to accept evidence submitted at the hearing for assessment and above all to evaluate the parties' credibility constitutes an error of mixed fact and law. The member must evaluate the overall facts, and if they dismiss a portion of the testimony, they must state the reason.
• It is also an error of law to submit for analysis the claimant's alleged voluntary leaving for another employment at the beginning of April 2014 and to draw conclusions. This information was submitted to the Tribunal for the sole purpose of understanding the facts.
• Furthermore, it is also an error to suggest that the Appellant should have foreseen that the course approved by Emploi-Québec, which he had the right to attend, would be postponed; there was in fact no way to foresee this delay.
• According to jurisprudence, it is wrong to claim that the Appellant [translation] "knew that he was misleading the Commission" simply because false information had been provided. He must know and be aware that the information was false.
• Since the hearing lasted over an hour, paragraph (25) of page 6 in no way represents the Appellant's testimony with regard to the member's questions. The same goes for his representative's submissions.

[9] The Respondent submitted the following arguments to counter the Appellant’s appeal:

• The General Division did not err either in fact or in law and it properly exercised its jurisdiction.
• The Appellant stated on two occasions that he had left his employment to undergo training and that he had an arrangement with his employer to indicate a shortage of work. The Appellant's new position is inconsistent with the various statements he made to the Respondent and with what the employer has stated. The fact that the Record of Employment was not issued until April does not prove anything.
• Leaving an employment to attend a training course that has not been previously approved by the Respondent does not constitute just cause under sections 29 and 30 of the Act based on ample Federal Court of Appeal jurisprudence.
• The Appeal Division does not have the authority to retry a case or to substitute its discretionary power for that of the General Division. The Appeal Division’s authority is limited by subsection 58(1) of the Department of Employment and Social Development Act.
• Unless the General Division 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 that this decision is unreasonable, the Tribunal must dismiss the appeal.

Standards of review

[10] The Appellant made no submissions concerning the applicable standard of review.

[11] The Respondent submits that the applicable standard of review for questions of law is correctness and the standard of review for questions of mixed fact and law is reasonableness - Pathmanathan v. Office of the Umpire, 2015 FCA 50.

[12] The Tribunal notes that the Federal Court of Appeal in the case of Canada (A.G.) v. Jean, 2015 FCA 242, indicates in paragraph 19 of its decision that when the Appeal Division acts as an administrative appeal tribunal for decisions rendered by the General Division of the Social Security Tribunal, the Appeal Division does not exercise a superintending power similar to that exercised by a higher court.

[13] The Federal Court of Appeal proceeds to note that, not only does the Appeal Division have as much expertise as the General Division of the Social Security Tribunal and thus is not required to show deference, but an administrative appeal tribunal also cannot exercise the review and superintending powers reserved for higher provincial courts or, in the case of “federal boards”, for the Federal Court and the Federal Court of Appeal.

[14] The Federal Court of Appeal concludes by stating that when the Appeal Division hears appeals pursuant to subsection 58(1) of the Department of Employment and Social Development Act, the mandate of the Appeal Division is conferred to it by sections 55 to 69 of that Act.

[15] In particular, it must determine whether the General Division “erred in law in making its decision, whether or not the error appears on the face of the record”, or whether the General Division "based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it".

[16] The mandate of the Appeal Division of the Social Security Tribunal as described in Jean was later confirmed by the Federal Court of Appeal in Maunder v. Canada (A.G.), 2015 FCA 274.

Analysis

[17] The Tribunal proceeds in rendering a decision in the Appellant's three files: AD-16-503, AD-16-504, and AD-16-505, and refers to the exhibits in file AD-16-504.

Voluntary Leaving

[18] The Appellant criticizes the General Division for having failed to consider the evidence he submitted at the hearing to the effect that he had not quit his job to undergo training, but rather that all employees had been laid off because of a shortage of work, at which point he registered for a two-week training and development course offered through the CCQ and Emploi-Québec (Exhibit GD-3-33).

[19] Rather, the Tribunal finds that the General Division did not give credibility to the Appellant's version presented at the hearing, as stated by the following:

[translation]

[30] On January 29, 2015, the Appellant stated that he had voluntarily left his employment in order to take a training course. On February 16, 2015, the Appellant once again confirmed that he had resigned in order to undergo training. He implied that he had an arrangement with the employer to indicate [translation] 'shortage of work'.

[31] The employer confirmed that the Appellant had handed in his resignation on February 14, 2014, in order to take a training course. Due to staffing needs, the employer rehired the Appellant on June 16, 2014. He confirmed that the Appellant had never done a 15-hour week because he had always been paid for 40 hours.

[32] In a document submitted by the Appellant, the Appellant mentions dismissal. He no longer mentions voluntary leaving or mass lay-off. The Record of Employment does in fact indicate that the Appellant had voluntarily left his employment. It should be noted that the employer made no mention of a mass lay-off due to a shortage of work. The Appellant once again voluntarily left his employment in August 2014.

[33] There is ample case law establishing that more weight must be given to initial and spontaneous statements made before the Commission’s decision than to subsequent statements made to justify a claimant’s situation in the face of an unfavourable decision of the Commission.

[20] The Appellant had indeed stated in his initial interview on January 29, 2015, that he had left his job to take a training course with the aim of afterwards going to work out West (Exhibit GD3-15).

[21] In a subsequent interview on February 16, 2015, he admitted to having resigned in order to undergo training. He even noted that he had wanted to take a training course so that he could work out West because he wanted to take his life in a different direction (Exhibit GD3-17).

[22] On February 16, 2015, the employer confirmed the Appellant's initial version of events to the effect that he was going to take a training course so that he could go work out West (Exhibit  GD3-16).

[23] On April 15, 2016, the Respondent issued a decision to the effect that the Appellant could not receive regular Employment Insurance benefits as of February 9, 2014, because he had voluntarily stopped working for his employer without just cause under the Act (Exhibit GD3-20).

[24] It was only after the Respondent's decision that, in support of his request for reconsideration, the Appellant began claiming that there had been a mass lay-off of all the employees because of a work shortage and that it was then that he signed up for a two-week training.

[25] The Appellant insists that he had been caught by surprise and that he did not have the opportunity to present his version of events to the Respondent's agent who had, in his view, taken the employer's version as fact. However, the 17 days between the first and second interview left the Appellant with ample time to think and submit his answer to the Respondent's new officer at a later interview. The facts he was asked to provide were nonetheless simple. He therefore kept to his initial version to the effect that he had left his employment in order to undergo a two-week training program so that he could go to work out West and take his life on a new path.

[26] The Tribunal finds that the General Division was correct in giving more weight to the Appellant’s initial and spontaneous statements indicating voluntary leaving without just cause.

[27] Moreover, for quite some time, case law has consistently stated that, unless there are obvious particular circumstances, the issue of credibility must be left to the discretion of the General Division, which is better placed to decide on it. The Tribunal will intervene only if it is obvious that the General Division’s decision on the issue is unreasonable, in light of the evidence before it.

[28] The Tribunal does not find any reason to intervene in this case on the issue of credibility as assessed by the General Division.

[29] Consistent Federal Court of Appeal case law states that voluntarily leaving an employment to go back to school or to enroll in training does not constitute "just cause" within the meaning of sections 29 and 30 of the Act - Canada (A.G.) v. King, 2011 FCA 29, Canada (A.G.) v. MacLeod, 2010 FCA 201; Canada (A.G.) v. Beaulieu, 2008 FCA 133; Canada (A.G.) v. Caron, 2007 FCA 204; Canada (A.G.) v. Côté, 2006 FCA 219; Canada (A.G.) v. Bois, 2001 FCA 175.

[30] As was also underscored by the General Division, the Federal Court of Appeal has many times reiterated that leaving an employment in order to improve one's situation does not constitute just cause within the meaning of paragraph 29(c) of the Act - Canada (A.G.) v. Langlois, 2008 FCA 18.

[31] There is therefore no need for the Tribunal to intervene on the issue of voluntary leaving.

Penalty

[32] The Tribunal finds that the General Division did not consider whether, subjectively, the Appellant knew he was making false or misleading statements.

[33] In order to impose a penalty on the Appellant, the General Division had to conclude, on a balance of probabilities, that he subjectively knew the statements were false – Canada (A.G.) v. Gates (1995), Canada (A.G.) v. Purcell, A-694- 94.

[34] The Tribunal is therefore referring file AD-15-503 back to the Tribunals' General Division (Employment Insurance Section) for a new hearing by a member on the penalty issue.

Benefit Rates and Number of Benefit Weeks

[35] This ground of appeal was not actually argued by the parties because it was related to the issue of voluntary leaving.

[36] Given the Tribunal's findings on the issue of voluntary leaving, there is no need for the Tribunal to intervene. The General Division's decision is consistent with the evidence on file and with the relevant legislative provisions and case law.

Employer's Absence

[37] The Appellant criticizes the General Division for having granted greater weight to the employer’s evidence whereas he did not attend the hearing. The Tribunal is of the opinion that the mere fact that one party is present whereas the other party is absent is not necessarily a determining factor. The General Division is free to find one party more credible than the other.

[38] Furthermore, the Federal Court of Appeal decided in Caron v. Canada (A.G.), 2003 FCA 254, that Boards of Referees (now the General Division) are not bound by the strict rules of evidence applicable in criminal or civil courts and they may receive and accept hearsay evidence.

[39] The General Division could not dismiss the employer's evidence simply because the Appellant did not get the opportunity to cross-examine him - Olivier, A-308-81.

[40] The Tribunal believes that the Appellant was aware of the evidence on file prior to his appearance before the General Division and that he had plenty of time to prepare his argument. The General Division had allowed him to present his submissions regarding the case before it and the Appellant had the opportunity to challenge the employer's position.

[41] This ground of appeal is without merit.

Reasonable Assurance of another Employment

[42] Subparagraph 29(c)(vi) requires that there be reasonable assurance of another employment in the immediate future.

[43] The Tribunal finds that there cannot be “reasonable assurance of another employment” within the meaning of subparagraph 29(c)(vi) of the Act when the evidence shows that the Appellant, when he made the decision to become unemployed, did not know when in the future he would have a job. Obviously, a job that will come to fruition only in the indeterminate future cannot be considered to be employment "in the immediate future” within the meaning of the Act - Canada (A.G.) v. Muhammad Imran, 2008 FCA 17 and Canada (A.G.) v. Lessard, 2002 FCA 469.

[44] This ground of appeal is without merit.

Conclusion

[45] The appeal is allowed in part. File AD-16-503 is referred back to the General Division for a new hearing only on the issue of penalty.