Date:
20080918
Dockets: A-316-07
A-315-07
A-317-07
A-318-07
A-319-07
Citation: 2008 FCA 274
CORAM: DÉCARY
J.A.
BLAIS
J.A.
RYER
J.A.
A-316-07
BETWEEN:
TAIGA WORKS-WILDERNESS LTD.
Applicant
and
CHOI HAH HUANG
Respondent
A-315-07
BETWEEN:
TAIGA WORKS-WILDERNESS LTD.
Applicant
and
YI BAO HUANG
Respondent
A-317-07
BETWEEN:
TAIGA WORKS-WILDERNESS LTD.
Applicant
and
SHAO PING HUANG
Respondent
A-318-07
BETWEEN:
TAIGA WORKS-WILDERNESS LTD.
Applicant
and
MUI KIU CHOW
Respondent
A-319-07
BETWEEN:
TAIGA WORKS-WILDERNESS LTD.
Applicant
and
JANET WAI CHUN YUK
Respondent
REASONS FOR
JUDGMENT
BLAIS J.A.
[1]
This
is an appeal of a decision rendered by Umpire Max Teitelbaum of the Office of
the Umpire, on May 28, 2007.
[2]
Generally,
the issue between the parties is whether five seamstresses in the employ of
Taiga Works-Wilderness Equipment Ltd. (“Taiga”) left their employment with or
without just cause after Taiga allegedly modified the terms and conditions of
their salary and wages.
[3]
Specifically
at issue in this judicial review is whether the umpire properly determined that
the employees had just cause in leaving the employment of Taiga when the
Majority Board of Referees had determined that the respondents represented by
Ms. Huang did not have just cause.
[4]
The
decision of the umpire should be returned to the Chief umpire for
redetermination.
Background
The Commission’s
Decision
[5]
On
December 20, 2005, the Canadian Employment Insurance Commission (the
“Commission”) determined that eleven seamstresses did not demonstrate just
cause for leaving the employment of Taiga. This determination was based on the
Commission’s view that the respondents had not pursued reasonable alternatives
to walking off the job, including contacting the employment agency or
Employment Standards prior to quitting. It therefore imposed an indefinite
disqualification of benefits pursuant to sections 29 and 30 of the Employment
Insurance Act.
The Board’s Decision
[6]
At
the Board level, the seamstresses’ appeals were joined in two groups. The first
group of appellants were represented by Ms. Huang (A-316-07), the second group
of appellants were represented by Ms. Lau (A-321-07). The two groups were
subject to two separate hearings before the Board of Referees and the evidence
in each case does not appear to have been the same. Each decision, in turn,
led to separate appeals before this Court.
[7]
The
Huang respondents appealed the Commission’s decision to the Board of Referees
(the “Board”). The Majority Board determined that the Huang respondents did
not have just cause under section 29(c) of the Employment Insurance Act.
They indicated that,
[t]he claimant in the present
case did not qualify under Item vii of Section 29 as the claimant’s
representative argued. Because of the complicated and changing system of piece
work payment, it was impossible to determine a comparison in wages when
different items were being produced. The Majority Board could not conclude
whether there had been ‘significant changes’ to wages or salary.
Neither could the Majority
Board determine from the evidence that there had been ‘significant’ changes in
work duties’. (Item ix of Section 29).
[8]
The
Majority Board also found that there was no real urgency for the Huang
respondents to quit their job since other reasonable alternatives had been open
to them. They found that,
…the employer had the legal
right to try out new formats in order to improve quality and quantity even if
the new plan was complex and might take time, it was legal. The Majority Board
finds that the working conditions were not so intolerable to cause the claimant
to leave when she did. This observation was confirmed when the claimant stated
that she would be willing to return to Taiga.
[9]
Therefore,
on March 13, 2006, the Majority Board ruled that the Huang respondents did not
have just cause and dismissed the appeal. The minority of the
Board found in favour of the Huang respondents and cited the factors raised by
the Huang respondents as sufficient justification to demonstrate just cause.
[10]
The
Huang respondents appealed to the umpire. On July 4, 2006, before the umpire
could issue a decision, the Commission reviewed the Board’s decision and
conceded the Huang respondents’ appeal. The Commission recommended to the
umpire that the Huang respondents’ appeal be allowed. On July 12, 2006 the
Huang respondents notified the Commission that they were withdrawing their
request for an oral hearing before the umpire. On July 18, 2006, the applicant
notified the Commission that it was opposed to the Commission’s change in
position and requested an oral hearing before the umpire.
[11]
The
Huang respondents’ appeal to the umpire was heard. The appeal was allowed and
the Board’s March 13, 2007 decision was set aside.
[12]
The
umpire considered written submissions from the applicant before making his
decisions in the Huang respondents’ cases. On May 28, 2007 the umpire
concluded that these submissions did not contain new information and that they
simply reiterated the employer’s position.
[13]
The
umpire concluded that the Board had erred in their decision with respect to the
Huang respondents. The umpire found that the employer had,
[…] unilaterally changed the
conditions of employment. The employer decided to cause the employees to
increase the production by removing their “coffee break” and by hiring
“runners” so that the employees would not leave their sewing machines.
The majority of the Board
failed to give sufficient weight to the unilateral changes made by the
employer.
[14]
The
umpire ruled that the majority/minority split in the Board’s decision with
respect to the Huang respondents indicated that there was evidence to support a
finding of just cause.
Analysis
[15]
In
Canada (Attorney
General) v. Centre de valorisation des produits marins de Tourelle Inc., 2003 FCA
344, [2003] F.C.J. No. 1413 (QL) (“Tourelle”), Justice Létourneau
concluded that an umpire did not have the authority to reweigh evidence,
The umpire simply substituted
his assessment of the facts and of the credibility of the witnesses, here the
employer, for that of the Board of Referees.
He did not have that power. His
function is limited to “deciding whether the view of the facts taken by the
Board of Referees was reasonably open to them on the record”: Attorney
General of Canada v. McCarthy, 174 N.R. 28 (F.C.A.). In the case at bar,
the record contained sufficient evidence for the Board of Referees to arrive at
the conclusions which the umpire incorrectly reversed.
[16]
In
the case at bar, the umpire concluded that the Board of Referees erred in their
decision but specifically indicated that the weight given to the evidence was
the basis of the error.
The majority of the Board failed
to give sufficient weight to the unilateral changes made by the employer.
(emphasis added)
[17]
In
light of the decision in Tourelle, a determination of the weight to be
given to evidence simply is not within the powers of the umpire and favours
allowing the judicial review and having the appeal to the umpire redetermined.
[18]
In
his conclusion, the umpire states,
In my view, the Commission’s
recommendation should be accepted. The submissions which the employer has made
to the Umpire were before the Board of Referees and it is nothing but a
reiteration of arguments that it had already made. The point here is that, as
demonstrated by the split in the Board of Referees, there is evidence to
support a finding of just cause. The minority Board member’s decision,
given the evidence, can certainly be said to be a reasonable finding.
(emphasis added)
[19]
While
it may be true that a decision by the Board allowing the Huang respondents
claim could have been allowed, it was not. Therefore, the umpire was to weigh
the decision of the majority Board for reasonableness. Whether the minority
Board’s conclusion was reasonable is not determinative of the appeal before the
umpire. There may have been a variety of conclusions open to the Board based
on the evidence. It is the majority Board’s decision that is to be
examined under the umpire’s analysis. The umpire notably does not make any
finding regarding the reasonableness of the majority Board’s decision.
[20]
In
its decision, the Board of Referees indicated that,
Because of the complicated and
changing system of piece work payment, it was impossible to determine a
comparison in wages when different items were being produced. The Majority
Board could not conclude whether there had been ‘significant changes’ to wages
or salary.
[…]
There can be no doubt that the
claimant in the present case quit her job voluntarily when she had other
alternatives to leaving at that time. The Majority Board found as fact, that
there was no real urgency to leave at that time, and that the claimant could
have contacted the Employment Standards Agency or EI Commission to gather
advice as to her legal position.
[21]
The
umpire failed to evaluate whether the Board’s finding that the Huang
respondents did not have just cause for voluntarily leaving their employment
based on the reasons given by the Board was reasonable.
[22]
Therefore,
the decision of the umpire should be set aside and the matter referred back to
the Chief Umpire or his designate for redetermination on whether it was
reasonable for the majority Board to decide that the Huang respondents did not
have just cause for voluntarily leaving the applicant’s employment.
Conclusion
[23]
I
would allow the judicial review with respect to the Huang respondents, set the
decision of the umpire aside and send the matter back to the Chief umpire or to
an umpire designated by him to decide whether the Huang respondents did have
just cause for voluntarily leaving the applicant’s employment.
[24]
The
parties did not seek costs therefore I would award no costs.
"Pierre
Blais"
“I
concur
Robert
Décary J.A.”
“I
concur
C. Michael Ryer J.A.”
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