Date: 20110614
Docket:
A-457-10
Citation:
2011 FCA 204
CORAM: BLAIS
C.J.
SHARLOW
J.A.
TRUDEL
J.A.
BETWEEN:
JAMES
JAMIESON
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
BLAIS C.J.
[1]
The
applicant asks for judicial review of the decision of an Umpire dated September
29, 2010, which
upheld the Board of Referees’ decision (Board) that the applicant had
voluntarily left his employment without just cause and was therefore
disqualified under sections 29 and 30 of the Employment Insurance Act,
S.C. 1996, c. 23 (Act) from receiving employment insurance benefits.
BACKGROUND
[2]
The applicant was offered the position of Chief Engineer at the
Plaza 500 Hotel in Vancouver
in July 2008. An employment contract was signed on July 3, 2008, stipulating
the terms and conditions of the position. Among these conditions were
provisions dealing with vacations, which stipulated that the applicant would be
entitled to three weeks of paid holidays upon completing one year of service.
[3]
The issue in this application relates to a leave request made by
Mr. Jamieson in March 2009. He asked for two days off on March 12 and
13, 2009. The employer denied the request on the ground that the applicant did
not yet have leave owed to him under the contract, that inadequate notice had
been given and because operational issues would require him to be present at
work for those two days.
[4]
While the events that followed are the source of some dispute, it
is clear that the applicant disagreed with his employer’s decision and felt
that he was in fact entitled to take those two days off, either as vacation in
lieu of previous overtime work or because he felt that the hotel could manage
without him for those two days. The record also suggests that the applicant
informed his employer that he would not be at work for the two days in
question, regardless of the fact that his leave request had been denied.
[5]
On March 11, 2009, having received confirmation from the
applicant that he would not be at work on the next two days (March 12 and 13),
the employer requested that he return his keys, parking pass and name tag.
Later, that afternoon, the applicant tendered a letter of resignation citing
his employer’s refusal of his leave request as his reason for resigning:
Respondent’s Record, Tab A, pages 76, 77. The letter is dated March 10, 2009.
The applicant says that this is a typographical error and the letter was
actually prepared on March 11, 2009, but in my view, nothing turns on whether
the letter was prepared on March 10 or March 11. On March 13, 2009, the
employer sent the applicant a letter accepting his resignation and reiterating
its view that the applicant had abandoned his employment.
[6]
The applicant filed a claim for employment insurance benefits,
describing the reason for his loss of employment as a dismissal. After interviewing
the applicant and the employer’s representative, the Employment Insurance
Commission (Commission) determined that he had voluntarily left his employment
without just cause and denied his application for benefits.
BOARD OF REFEREES’ DECISION
[7]
Sitting
on appeal from the Commission’s decision, the Board found that the applicant
had left his employment voluntarily by choosing to take the unauthorized leave.
[8]
The
Board then considered the issue of just cause under section 29 of the Act. The
Board ultimately found that reasonable alternatives to resigning were available
to the applicant, namely to continue working until his one year anniversary
date and seek authorized leave, to file a request for medical leave or to
respond to his employer’s request for the return of hotel belongings by
assuring that he would not in fact take the two days off and thereby save his
employment. Further, the Board found insufficient evidence to conclude that the
applicant’s working conditions provided just cause for voluntarily leaving his
employment.
UMPIRE’S DECISION
[9]
In reference to the grounds for review set out in subsection
115(2) of the Act, the Umpire was satisfied that the Board’s decision did not
disclose an error of law or findings of fact made without regard to material
before it, and consequently upheld the Board’s decision.
APPLICANT’S
POSITION
[10]
The applicant challenges the Umpire’s decision on the following
grounds: (1) that the Umpire erred in failing to find that the record
establishes that the applicant was dismissed and did not leave his employment
voluntarily; (2) that the Umpire failed to consider evidence of workplace
antagonism; and (3) that the Umpire erred in failing find that the decision of
the Board was biased because it was unduly influenced by flawed written
submissions on the part of the Commission.
RESPONDENT’S
POSITION
[11]
Referring to a decision of our Court, Canada
(Attorney General) v. Peace, 2004 FCA 56 at para. 20,
citing Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1
S.C.R. 247, the Respondent suggests that:
“So long as this determination is reasonable and adequately
supported by the evidence – and not made in a perverse or capricious manner or
without regard for the material before it – the Umpire has no jurisdiction to
interfere even where contradictory evidence exists. For this reason, the Umpire
is not permitted to substitute his own assessment of the facts and of the
credibility of the witnesses for that of the Board. His function is limited to
deciding whether the view of facts taken by the Board was reasonably open to it
on the record.”
[12]
The respondent also suggests that the Umpire committed no
reviewable error that justifies the intervention of our Court and, therefore,
that application should be dismissed.
ANALYSIS
[13]
The
issue in this case is whether the applicant voluntarily left his employment
and, if so, if he had demonstrated just cause pursuant to section 29 of the
Act. The applicant argues that the issue of dismissal should have formed part
of the Board’s or the Umpire’s considerations, and that he was denied
procedural fairness by being prevented to tender evidence pertaining to this
issue.
[14]
The
difficulty facing the applicant is that the Commission found as a fact that the
applicant had communicated to the employer his intention to take two days
leave, with or without the employer’s consent. In the context of this case, it
is irrelevant whether the ensuing loss of employment was, as a matter of
employment law, a resignation or a dismissal. The Commission clearly found that
the event triggering the loss of employment was the voluntary act of the
applicant in insisting on taking two days off without the consent of the
employer.
[15]
That
factual conclusion was reasonably open to the Board, based on the evidence
before it. That evidence included the three documents that the applicant says
the Board rejected or ignored, which were “to whom it may concern” letters from
other employees supporting the position of the applicant and stating their
respective versions of the events. Those letters were of marginal relevance,
and the Board was entitled to give them little or no weight.
[16]
As
to whether the Umpire should have considered the question of “antagonism”
between the applicant and the Umpire, this issue was not raised before the Board
or the Umpire, and it is not clearly supported by the record. Therefore, it
cannot be a basis upon which this Court can reverse the Umpire’s decision.
[17]
The
applicant’s argument on the question of bias is based on an incorrect
understanding of the role of the Commission. The applicant criticizes certain
aspects of the written submissions made by the Commission to the Board in
defence of its decision to deny the applicant employment insurance benefits.
What is said in those submissions is the position of the Commission. The duty
of the Board, as a decision maker independent of the Commission, is to consider
the submissions of the Commission and the contrary submissions of the applicant
in light of documentary evidence and oral evidence presented, and to decide
whether the Commission’s decision should be allowed to stand. The record
discloses no evidence that the Board was biased or that a reasonable
apprehension of bias can be found in the contents of the Commission’s
submissions to the Board.
[18]
In conclusion, I find that the Board’s reasons for dismissing the
applicant’s appeal were rational and entirely reasonable, and the Umpire made
no reviewable error in declining to intervene.
[19]
This application should
be dismissed.
“Pierre Blais”
“I
agree.
Sharlow
J.A.”
“I
agree.
Trudel
J.A.”
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