Employment Insurance (EI)

Decision

[1] The Claimant’s appeal is allowed. The General Division based its decision on an important error of fact. The matter will go back to the General Division for reconsideration.

Overview

[2] A. T. is the Claimant in this case. She applied for Employment Insurance (EI) regular benefits.

[3] The Canada Employment Insurance Commission (Commission) decided that she was disqualified from getting EI benefits from June 4, 2023, because it said she voluntarily left her job without just cause.^{Footnote 1}

[4] The General Division dismissed the Claimant’s appeal but modified the date she was disqualified from benefits.^{Footnote 2} It concluded that she voluntarily left by refusing to resume her job as of July 9, 2023.^{Footnote 3} It found there were reasonable alternatives.

[5] The Claimant appealed to the Appeal Division.^{Footnote 4} She argues that the General Division made several errors, including important errors of fact and an error of law in its decision.^{Footnote 5}

[6] I am allowing the Claimant’s appeal because the General Division based its decision on an important error of fact when it found that the Claimant voluntarily left by refusing to resume her job on July 9, 2023.

Issues

[7] There were many errors alleged, but I have focused on the following issues:

1. a) Did the General Division base its decision on an important error of fact when it found that there was work available to the Claimant the week of July 25, 2023?
2. b) Did the General Division base its decision on an important error of fact when it found that the Claimant voluntarily left by refusing to resume her job on July 9, 2023?
3. c) If so, how should the error or errors be fixed?

Analysis

[8] An error of fact happens when the General Division has based its decision on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before it.^{Footnote 6}

[9] This involves considering some of the following questions:^{Footnote 7}

• Does the evidence squarely contradict one of the General Division’s key findings?
• Is there no evidence that could rationally support one of the General Division’s key findings?
• Did the General Division overlook critical evidence that contradicts one of its key findings?

[10] An error of law can happen when the General Division doesn’t apply the correct law or when it uses the correct law but misunderstands what it means or how to apply it.^{Footnote 8}

[11] If the Claimant establishes that the General Division based its decision on an important error of fact or an error of law, then I can intervene.

The Claimant and Commission agree that the General Division made an error of fact in its decision when it found that there was work available the week of July 25, 2023

[12] The General Division dismissed the Claimant’s appeal with modification. It decided that she was disqualified from getting benefits only from July 9, 2023. However, it noted that she might qualify for benefits before that date.

[13] The General Division considered whether there was a significant change to the terms and conditions respecting her wages. It concluded that the Claimant didn’t have just cause to leave her job by refusing to resume her employment from the week of July 9, 2023. It found that there were three reasonable alternatives to leaving her job.^{Footnote 9}

[14] The Claimant and Commission agree that the General Division made an error of fact in its decision. Specifically, the parties agree that the General Division made factual errors in paragraphs 48 and 49 of its decision when it found as fact that there was more work available to the Claimant the week of July 25, 2023.

[15] Paragraph 48 of the General Division decision says:

I don’t find that there were significant changes of terms and conditions respecting the Appellant’s wages when she voluntarily left her job. Yes, there was a significant change in her wages for the pay periods ending May 7 to June 18, 2023, as she worked only between 8 and 43 hours biweekly. However, both the employer and the Appellant said that more work was available the week of July 25, 2023, either 40 hours as indicated by the employer or 4-days as indicated by the Appellant (emphasis added is my own).

[16] Paragraph 49 of the General Division decision says:

I have to look at the circumstances that existed when the Appellant left on July 9, 2023. The Appellant and employer agree that there was more work available in the week starting July 25, 2023. The Appellant didn’t make further inquiries of the employer about production demands or work available to her around the time she left her job. Neither the Commission nor the Appellant gave evidence whether her hours of work were guaranteed, according to any employment contract. As such, I find that there is insufficient evidence to show that there were significant changes of terms and conditions respecting her wages on the day the Appellant left her job on July 9, 2023 (emphasis added is my own).

[17] The Claimant and Commission agree that the General Division made an error of fact in the above paragraphs, but they disagree on whether it was important and whether the General Division based its decision on it.

[18] The Commission argues that the error of fact made by the General Division were typographical errors. It says that the General Division incorrectly noted July 25, 2023 in paragraphs 48 and 49 of its decision, but that it meant June 25, 2023. ^{Footnote 10}

[19] The Commission submits that the error had no impact on the outcome of the decision. It notes that the General Division correctly concluded that the Claimant was offered work during the week of June 25, 2023, and left the week of July 9, 2023.

[20] But the Claimant doesn’t agree that the factual error made was simply a typographical one. She argues that the factual error was important enough because it created a false chronology that had no foundation in the evidence.^{Footnote 11}

[21] The Claimant submits that they were not mere inconsistencies in the presentation of the timeline, but that it was a fundamental error that skewed the General Division’s understanding of the situation and her entitlements.

[22] Even though the parties agree that the General Division made a factual error, not all errors of fact will allow me to intervene. For example, if the General Division made a mistake about a minor fact in this case that does not impact the outcome of the case, then I can’t intervene.

The General Division’s decision wasn’t based on the error of fact made, it was just a typographical error when it wrote July 25, 2023, instead of June 25, 2023

[23] As noted above, in paragraphs 48 and 49 of the General Division decision, it found that the Claimant had more work available the week of July 25, 2023. But that wasn’t possible because it had already found that the Claimant voluntarily left her job when she refused to resume her employment as of July 9, 2023.^{Footnote 12}

[24] I find that the General Division simply made a typographical error in paragraphs 48 and 49 of its decision. It wrote July 25, 2023 in error, but it is clear that it meant June 25, 2023. In fact, it referred to June 25, 2023 in several other paragraphs of its decision.^{Footnote 13} I was not persuaded that the General Division misunderstood the timeline. Its decision shows that it understood the sequence of events.

[25] More importantly, its decision was based on the fact that it found she voluntarily left by refusing to resume her job from the week of July 9, 2023. So, the typographical errors it made in paragraphs 48 and 49 were not important and had no impact on the outcome.

The General Division based its decision on an important error of fact when it found that the Claimant voluntarily left by refusing to resume her job on July 9, 2023

[26] Section 29(b.1)(ii) of the Employment Insurance Act states that voluntarily leaving an employment includes the refusal to resume an employment, in which case the voluntary leaving occurs when the employment is supposed to be resumed.

[27] The Claimant argues that the General Division made an error of fact when it found that she voluntarily left on July 9, 2023 by refusing to resume her job.

[28] The Claimant says that the General Division should have made a determination of when the employment ended, whether there was an offer to return (which it says has to have some degree of specificity) and that there needs to be a refusal or inaction. She submits that a failure to reply to her employer’s email from July 7, 2023 inquiring about her availability falls short of refusing to resume her job.

[29] The Commission disagrees and argues that the onus was on the Claimant to take steps to safeguard her job and there was no direct response or steps taken to return to work. It says that the General Division’s decision was reasonable, transparent and a clear interpretation of the evidence.

[30] The General Division found that the Claimant voluntarily left by refusing to resume her job on July 9, 2023.^{Footnote 14} It relied on the employer’s email to the Claimant on July 7, 2023 asking about her availability for work as it was doing the schedule for July 9, 2023.^{Footnote 15} It also relied on the medical note that said she could return to work on July 9, 2023.^{Footnote 16}

[31] I agree with the Commission on this point.

[32] The voluntary leaving occurs when the employment was supposed to be resumed. And the evidence doesn’t show that she was supposed to resume her job on July 9, 2023.

[33] The General Division found that July 9, 2023 was the date she refused to resume her job. But the employer’s email from July 7, 2023 asked if she was still able to work with them because it was doing the schedule for “next week”. It doesn’t say that July 9, 2023 was the date she was supposed to resume her job.

[34] Respectfully, I find that the General Division based its decision on an important error of fact when it found that the Claimant voluntarily left her job by refusing to resume her employment on July 9, 2023.^{Footnote 17} There is no indication in the employer’s email or record that the week starts on July 9, 2023 or that she was supposed to resume her employment specifically on that date.^{Footnote 18}

[35] I acknowledge that the Claimant’s allegations that the General Division made other errors, but it isn’t necessary to consider them because I have found one.

Remedy—How to Fix the Error

[36] There are two options for fixing an error by the General Division.^{Footnote 19} I can either send the file back to the General Division for reconsideration or give the decision that the General Division should have given. If I substitute with my own decision, I can make any necessary findings of fact.^{Footnote 20}

[37] The Claimant and Commission agree that I should give the decision the General Division should have given. But in this case, I don’t think I can substitute with my own decision. I will explain.

[38] The Commission’s written argument to the Appeal Division point out that there was other evidence in the file to support that the Claimant “quit” her job.^{Footnote 21} It referred to a written statement dated December 19, 2023, that she submitted to Service Canada with her request for reconsideration that said, “the final straw that led me to quitting was not receiving any shifts for two straight weeks.”^{Footnote 22} And it said that “I requested my Record of Employment with an intention to quit.”^{Footnote 23} It also said that “if I agreed to return to work at this point it would mean explicitly accepting that I was no longer a full-time worker but a part-time worker.”^{Footnote 24}

[39] In response to that argument, the Claimant wrote in its submissions that whether she quit is irrelevant for the purposes of the appeal.^{Footnote 25} She says that the General Division made no such finding (that she quit) and it isn’t open to the Appeal Division to reweigh the evidence. She also submits that the Appeal Division can’t amend the General Division’s finding absent that determination.

[40] I would normally substitute with my own decision when the parties agree that I should. The main factor that I have to consider is whether the parties have had a full and fair opportunity to present their evidence before the General Division on all relevant issues. However, if the record is incomplete in some way, then it would be appropriate to return to the General Division for reconsideration.

[41] I note that the Claimant chose not to testify at the General Division, instead relying on her written statement dated April 5, 2024.^{Footnote 26} She was represented by counsel at the General Division hearing and an interpreter was present to assist.

[42] Before the General Division, there were two written statements in the file that were submitted by the Claimant (the first one dated December 19, 2023 and second dated April 5, 2024).^{Footnote 27} In one of them, the Claimant says that she quit her job, but in the other she disputes that she quit her job. When I listened to the audio recording, I didn’t hear the General Division member ask the Claimant about the written statements. In my view, this was an important gap in the evidence.

[43] It is clear that the Claimant in this case disputes that she quit or that she refused to resume her job. Given that, I don’t think the Claimant got a full and fair opportunity to present her case on all relevant issues and she ought to be given an opportunity to explain why she submitted two written statements that say different things. The record is incomplete. The matter will return to the General Division for reconsideration.

Conclusion

[44] The Claimant’s appeal is allowed. The General Division based its decision on an important error of fact. I am returning the matter to the General Division for reconsideration.