Date: 20121129
Dockets: A-437-11
A-32-12
Citation: 2012 FCA 313
CORAM: NADON
J.A.
GAUTHIER J.A.
MAINVILLE
J.A.
BETWEEN:
DEREK GREEN
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
NADON J.A.
[1]
Before
us are applications for judicial review of two decisions of an umpire, Mr.
Justice Marin, dated June 20, 2011 and October 31, 2011. By his first decision
(CUB 77281), the umpire had to determine whether the Board of Referees (“the
Board”) had erred in concluding that the applicant did not have just cause,
within the meaning of sections 29 and 30 of the Employment Insurance Act,
S.C. 1996, c. 23 (“the Act”), to leave his employment with W/Five Seismic Co.
Ltd. (“Seismic”) on December 17, 2009, and that he had not accumulated, since
leaving that employment, the number of hours of insurable employment required
by sections 7 and 7.1 of the Act so as to qualify for insurance benefits. As he
could not find any error in the Board’s decision, the umpire accordingly
dismissed the applicant’s appeal.
[2]
By
his second decision (CUB 77281A), the umpire had to determine, on a motion
brought by the applicant under section 120 of the Act, whether there were
grounds for him to reconsider his decision of June 20, 2011. The umpire
dismissed the motion because no new facts had been adduced by the applicant and
he was satisfied that his first decision had not been “given without knowledge
of, or based on a mistake as to some material fact”.
[3]
On
November 17, 2011, the applicant filed an application for judicial review of
the umpire’s second decision. He subsequently brought an application to amend
his judicial review proceedings so as include a review of the umpire’s first
decision and he also sought an extension of time to do so. On January 24, 2012,
my colleague, Mainville J.A., allowed the applicant’s application to amend and
to extend the time do so, and he ordered a consolidation of both judicial
review applications. Consequently, these Reasons will dispose of both
applications. For the sake of clarity, I should point out that the applicant’s
judicial review application of the umpire’s first decision bears Court file no.
A-32-12, while the application for judicial review of the umpire’s second
decision bears file no. A-437-11.
The Facts
[4]
On
April 19, 2010, the applicant presented an application for benefits (his
application was filed electronically) to the Employment Insurance Commission
(“the Commission”). In this application, he indicated that his most recent
employer had been Sourcex Geophysical Corp. (“Sourcex”), where he had worked
from March 16 to March 29, 2010. He further indicated that he had worked for a
number of employers prior to Sourcex, namely, Veritas Energy Services Inc.
(“Veritas”) from March 4 to March 11, 2010, Geostrata Resources
Inc.(“Geostrata”) from February 10 to February 25, 2010, and Seismic from
December 11 to December 17, 2009. Prior to working for Seismic, the applicant
had worked for Geokinetics Exploration (“Geokinetics”) from November 13 to
November 27, 2008.
[5]
With
regard to his employment with Seismic, he indicated that he had quit that
employment on December 17, 2009, because he had received a job offer or thought
that he would be receiving one. More particularly, he indicated that after
meeting with a representative of United Safety, he believed that he would be
hired by that company and would commence work thereat on January 25, 2010.
[6]
He
also indicated that he expected his new job to be either permanent employment
or to last longer than the job that he had left, and that he expected the
number of hours worked per week would either be equal to or greater than his
hours at Seismic. He also informed the Commission that in the previous two
years, he had not at any time been unable to work for medical reasons.
[7]
Following
the filing of his application for benefits, the applicant informed the
Commission, on May 10, 2010, that when he left Seismic on December 17, 2009,
work at that company had ceased for the holidays because Seismic had been
unable to obtain a contract which it had hoped to secure, adding that, in any
event, his job at Seismic was “horrible”.
[8]
Upon
inquiries by the Commission with the applicant’s purported new employer, United
Safety, a representative of that company informed the Commission of the
following (Respondent’s Record, page 30):
… applicants have to go through
training before they are offered a job. The training is unpaid. Hundreds of
people apply. They have to be successful in the three parts of the program to
be offered a job. The claimant [the applicant] failed the drugs and alcohol
screening. He was given 60 days to reapply, would have had to go through
training again, but he hasn’t called back within that period.
[9]
As
a result of this information, the Commission decided that no benefits would be
payable to the applicant because he had voluntarily left his employment with
Seismic on December 17, 2009, without just cause within the meaning of the Act.
In the Commission’s view, voluntarily leaving his employment with Seismic was
not the only reasonable alternative in his case.
[10]
The
applicant asked the Commission to reconsider its decision on the basis of new
evidence, i.e. that he left Seismic because “he had a better job in the works
with United Safety” (Respondent’s Record, page 31), adding that although he had
never actually worked for United Safety, he had been in training with them when
he had failed the drug test. However, shortly thereafter, he had found
employment with Geostrata where he worked from February 10 to February 25,
2010.
[11]
On
May 21, 2010, the applicant provided additional information to the Commission
in the hope of convincing it to reconsider. More particularly, he informed the
Commission that considering the working conditions and his wages, the risks
that he was taking in performing his duties at Seismic were too high. He then
went on to explain why the working conditions were not acceptable (Respondent’s
Record, pages 32-33):
… I was required to continuously
have to travel between shot points that are 60 metres apart, in order to do so
I would have to drive an ATV and the wind in my face was giving me frost-bite.
I would have to set up dynamite with a blasting cap inside of a hole. I would
have to push the explosive down the hole with wooden poles, the poles are 50
feet long, I would have to go 10 feet at a time, as I was pushing it down the
hole, often there were problems with the hole and I would have to push down
harder and pull them back out. These poles are extremely heavy and in the
winter they get covered in mud and I would to pull a 70-80 lb pole out of the
ground. It felt like I was doing slave labor in -30 C degree weather. The basic
duties of the job had to be done extremely fast. I would compare to running a
marathon everyday, because the work that I had to do in the time that I had to
do it was strenuous. I sued to do it in my 20s, but after a lifetime of doing
this, I am having ligament damage all over my body. This was self-imposed
physical abuse. This is a job where there are no days off. I did every day for
10-12 hours per day for 30 days in a row. My body was no longer conditioned for
this kind of work. Each night I would go to sleep thinking that I would have to
wake up and do the same kind of horrific work all over again. I never planned
on keeping this job for long-term, I thought I could do it for a couple of
weeks and it wouldn’t be so bad. They were shutting down for the Christmas
holidays anyways.
[12]
On
June 22, 2010, the Commission received additional information from United
Safety concerning the applicant’s purported employment with them in January
2010. United Safety’s representative indicated that the applicant had indeed
been recruited as a potential candidate for employment and that he had attended
a training session from January 25 to 29, 2010, adding that the applicant would
have been advised one or two weeks prior to the commencement of the training
session that he had been recruited. United Safety’s representative also
explained to the Commission that the training session was a full-time matter
and that the candidates were not paid during that time. The session itself
included interviews, aptitude testing and classroom and practical evaluation. A
successful candidate would then be offered immediate full-time employment with
the company, but there was no guarantee that a candidate entering the training
session would be offered employment at the end of the session.
[13]
The
Commission was also advised that the claimant had failed his drug screening
test and, as a result, had not successfully passed the training session.
Although the applicant’s evaluation and marks were positive, the company could
not confirm that he would, in the end, have been offered employment had he not
failed the test, since the training session had yet to be completed.
[14]
On
June 23, 2010, the Commission advised Seismic that it had been informed by the
applicant that work at Seismic had terminated around December 18, 2009, for the
Christmas break and had resumed during the first week of January 2010. A
Seismic representative indicated that that information was not true, as the
company was very busy during the winter months and that it could not afford to
shut down during the holidays, except for Christmas Day, Boxing Day and New
Year’s Day. All other days were normal working days. Seismic’s representative
also indicated that had the applicant not quit his employment, “he could have
worked full-time continuously from December 17, right through until the spring
shut-down” (Respondent’s Record, page 44). Seismic’s representative, upon
further questioning by the Commission, indicated that had the applicant
requested a leave of absence for a week in January 2010, leave might possibly
have been given to him. Such a decision, however, would have been left to the
discretion of the applicant’s foreman.
[15]
The
above information was passed on to the applicant who disagreed with Seismic’s
representative. He reiterated that he had been told that the work site would be
closed down for the holidays and that there might possibly be work for him in
January. The applicant added that, in any event, as the working conditions with
Seismic were too difficult, he would not have remained with them. He then
stated his view that “he had full rights to walk away from his job”
(Respondent’s Record, page 45).
[16]
On
June 25, 2010, the Commission telephoned the applicant to inform him that
Seismic was unable to confirm that their site was closed during the Christmas
holidays, other than for the statutory holiday dates, and further informed him
that his file would be forwarded to the Board of Referees for his appeal on the
ground that he did not have just cause for leaving Seismic on December 17,
2009. Again, the applicant indicated that he disagreed and that he had had a
reasonable assurance of work with United Safety when he left Seismic,
acknowledging that he had left on December 17, 2009, because the work was too
difficult.
[17]
Also
of relevance is Seismic’s written response to a number of points made by the
applicant prior to his hearing before the Board, and which were brought to its
attention by the Commission. On July 23, 2010, Jason Slegel, the supervisor at
Seismic, wrote to the Board, advising it that it would not have “any personnel
in attendance at this hearing”, but that Seismic would like to offer some
comments regarding the position taken by the applicant. In particular, Mr.
Slegel made the following points:
-
the
applicant worked for Seismic for six days only;
-
although
the job was, in fact, physically very difficult, a person in good physical
condition could do the job, adding that many of the helpers doing the same job
as the applicant were of the same age group, i.e. early 30s;
-
although
the applicant was being paid starting wages as he was a new employee, he could
have increased his wages had he remained with the company longer so as to
demonstrate that he could “competently do his job”;
-
Seismic
only found out that the applicant had seen a doctor regarding pain in his knee
when it had occasion to read the Board’s Appeal Docket; at no time during his
employment with the company had the applicant indicated that he had pain or
that he had suffered injury in performing his job; when the applicant quit his
job, he had told Seismic that “he was too old to do the job”.
[18]
The
hearing before the Board took place in Calgary on August 3, 2010.
Decision of the Board of Referees
[19]
After
reviewing the entirety of the written record before it, including the
applicant’s employment and claim history (pages 89 to 94 of the Respondent’s
Record), the Board turned to the evidence adduced at the hearing, namely, the
applicant’s testimony. It noted that he testified that while driving with his
supervisor on December 18, 2009, he informed him that he would not be returning
to the job because he had had enough with the type of work that he had to
perform for Seismic. The applicant, in the course of his testimony, also
indicated that, in any event, there would have been no work for him at Seismic
as the driller with whom he was working was returning to Prince Edward Island
and the crew would not be resuming work until the first or second week of
January 2010 when the next available contract would commence.
[20]
The
applicant further testified that the only reason he had taken the job with
Seismic was that he was planning to obtain work with United Safety and that
that job would not be available until January 2010. Since he needed money to
undertake unpaid training with United Safety, he thought that working with
Seismic for a short period of time would alleviate his financial needs.
[21]
Finally,
the Board noted the applicant’s testimony that working conditions at Seismic
were not very good and even unsafe. The Board also noted his testimony that his
wages were insufficient, considering the nature of work he had to do.
[22]
The
Board then proceeded to make its findings of fact and apply the law to these
findings. Specifically, the Board had to determine whether the applicant had
voluntarily left his employment without just cause, and whether, following his
departure from Seismic, he had accumulated a sufficient number of hours, as
required by section 7 and 7.1 of the Act, so as to receive employment insurance
benefits.
[23]
With
regard to the first issue, the Board found that the applicant had reasonable
alternatives open to him other than quitting his job at Seismic. In the Board’s
view, the applicant could have kept his job at Seismic until he had obtained a
definite offer of employment with another employer. It also found that the
applicant had never engaged in any discussion with Seismic regarding his
working conditions, his wages and any health issues. It further found that the
applicant had left his job with Seismic a month prior to obtaining a
confirmation from United Safety that he had been accepted into their training
program, noting that no guarantee of employment was attached to his acceptance
into the training program.
[24]
The
Board also found that had the applicant remained with Seismic for a month, he
could have obtained a leave of absence in order to complete his training
program obligations with United Safety.
[25]
With
regard to the applicant’s claim that he could no longer work at Seismic because
of his medical condition, the Board found as a fact that indeed the applicant
had “an on going health situation with his knees”, that “his working conditions
in the field were not the best and rather primitive”, and that he had no
regularly scheduled breaks. However, in the Board’s view, “his working
conditions in themselves are not occupationally unsafe” (Respondent’s Record,
page 99). The Board then made a specific finding regarding a medical note of
June 30, 2010, signed by Dr. A. Wladichuk, adduced by the applicant during the
hearing, stating that the note did not support the appellant’s contention that
he was unable to do his work at Seismic because of health considerations. The
Board was not satisfied that the applicant had demonstrated that he had quit his
job at Seismic because of medical reasons, nor that he had proven that he had
quit because of advice received from his doctor (Respondent’s Record, page
100).
[26]
Thus,
in the Board’s view, the applicant had been unable to show that “he had no
reasonable alternative to leaving his position with Seismic when he did”
(Respondent’s Record, page 100). In the Board’s view, he had simply made a
personal decision to leave his employment, but in so doing, he did not have
just cause to do so.
[27]
The
Board then turned to the second issue. It found that since the applicant was
not a new entrant or re-entrant into the work force, he was consequently
required to accumulate at least 665 hours of insurable employment after
December 17, 2009, so as to qualify for insurance benefits. Since he had only
accumulated 437 hours during the period of December 18, 2009, to the date of
his application for insurance benefits, i.e. April 19, 2010, he did not qualify
for regular employment insurance benefits.
[28]
As
a result, the applicant’s appeal from the Commission’s decision was dismissed
on both counts. This led to an appeal to the umpire. With regard to the
question of whether the applicant had just cause to leave his employment at
Seismic, the umpire simply adopted the Board’s findings, which he reproduced at
pages 2 to 6 of his decision. With regard to the second question, the umpire
observed that the applicant had not accumulated the number of hours required by
the Act. Consequently, he dismissed the applicant’s appeal.
[29]
As
I indicated earlier, the applicant asked the umpire to reconsider his decision.
The umpire concluded that he could not.
[30]
I
now turn to the applicant’s judicial review application of the umpire’s second
decision.
Analysis
1. Did the
Umpire Err in Law by Declining to Rescind or to Amend his First Decision?
[31]
Pursuant
to section 120 of the Act, an umpire may rescind or amend a decision when an
applicant is able to adduce new facts or when the umpire is satisfied that his
earlier decision “was given without knowledge of, or was based on a mistake as
to some material fact”.
[32]
After
setting out the relevant facts and the chronology of the events leading to the
motion before him, and noting that when he heard the applicant’s appeal from
the Board’s decision, he had no transcript of the evidence given at the hearing
before the Board, the umpire then addressed the applicant’s request for
reconsideration.
[33]
The
umpire began by referring to the applicant’s 12-page letter of September 14,
2011, wherein the applicant set out the purported new evidence which justified
his motion. The umpire opined, at page 4 of his decision, that the letter
“basically repeats what was said earlier” and that it did not “bring any new
facts forward, which could assist me in reconsidering my earlier decision”. On
the authority of this Court’s decision in R. v. Chan, Court file
A-185-94, the umpire concluded that there was no basis for him to reconsider
his earlier decision. In his view, the information found in the applicant’s
letter did not constitute “new facts”, and he found no mistake as to “some
material fact”. Consequently, he denied the applicant’s motion for
reconsideration and confirmed his earlier decision.
[34]
Before
us, the applicant says that the umpire erred in that, contrary to his
determination, two notes from his doctor, dated June 30, 2010 and August 11,
2010, did constitute new evidence and, consequently, the umpire ought to have
reconsidered his earlier decision. In my view, the umpire did not err in
concluding as he did.
[35]
The
doctor’s first note, dated June 30, 2010, was in evidence before the Board and,
as I have already indicated, the Board dealt with it in its decision.
Consequently, it cannot be considered as a “new fact”. In any event, the
medical note clearly does not support the proposition that the applicant left
his job on December 17, 2009, because of pain in his knee. There can be no
doubt that what the doctor actually said in his note was that he was informed
by the applicant that that was the reason why he left his employment. Also, presumably
after examining the applicant, the doctor opined that the pain in the
applicant’s knee was likely due to “patellofemoral syndrome”.
[36]
In
his second note, dated August 11, 2010, Dr. Wladichuk again confirmed that the
pain in the applicant’s knee was likely due to “patellofemoral syndrome” ,
writing that the applicant “is unable to (starting June 30) perform work that
consists of heavy duties due to knee pain, likely patellofemoral syndrome”.
[37]
It
is obvious that these medical notes do not specifically address the applicant’s
ability to perform the work for which he was engaged by Seismic in December
2009. Consequently, I am satisfied that the umpire did not err in his view that
these notes did not constitute “new facts” and, therefore, could not serve as a
basis for reconsidering his first decision.
[38]
The
applicant also argues that the umpire failed to consider the fact that the
Commission had granted him medical employment insurance benefits for the claim
period of April 4, 2010 to April 2, 2011, on the strength of the medical note
of August 11, 2010. Again, I cannot conclude that the umpire erred in not
considering this evidence as “new facts”, since the note does not address what
is at the heart of these proceedings, i.e. the reason or reasons why the
applicant left his employment on December 17, 2009.
[39]
The
applicant further argues that the umpire ought to have considered as “new
facts” the fact that prior to commencing work with Seismic, he had received a
number of offers from other companies. While that may well be the case, I
cannot see how these purported job offers can be relevant to a determination of
whether or not he left his employment with Seismic with just cause. In any
event, there is no evidence that these job offers remained open to him after he
commenced his employment with Seismic, or when he left that employment on
December 17, 2009.
[40]
Consequently,
I see no error on the umpire’s part in finding that the applicant had not
presented “new facts” or that his decision had been given “without knowledge
of, or was based on some mistake as to material facts” so as to allow him to
reconsider his decision of June 20, 2011.
[41]
I
now turn to the applicant’s judicial review application of the umpire’s first
decision which only challenges the Board’s determination as to whether the
applicant had “just cause” or not in leaving his employment with Seismic.
2. Did the
umpire err in upholding the Board’s decision that the applicant had left his employment
with Seismic without “just cause” ?
[42]
Section
30 of the Act disqualifies from benefits any claimant who voluntarily leaves
his or her employment without just cause. As to what constitutes “just cause’
subsection 29(c) provides that a claimant will have just cause in leaving his
or her employment if he or she “had no reasonable alternative to leaving or
taking leave, having regard to all the circumstances, including any of the
following:..”. The subsection then goes on to list a number of circumstances
which will constitute “just cause”. In particular, of relevance to these
proceedings are paragraphs 29(c)(vi) and (xiv), which, for ease of reference, I
hereby reproduce:
|
29. (c) just cause for
voluntarily leaving an employment or taking leave from an employment exists
if the claimant had no reasonable alternative to leaving or taking leave,
having regard to all the circumstances, including any of the following:
…
(iv) working conditions that
constitute a danger to health and safety;
…
(vi) reasonable assurance of
another employment in the near future;
|
29. c) le prestataire est fondé à
quitter volontairement son emploi ou à prendre congé si, compte tenu de
toutes les circonstances, notamment de celles qui sont énumérées ci-après,
son départ ou son congé constitue la seule solution raisonnable dans son cas
:
…
iv) conditions de travail dangereuses pour sa
santé ou sa sécurité
…
vi) assurance raisonnable d’un autre emploi dans
un avenir immédiat,
|
[43]
Although
I have considerable sympathy for the applicant and recognize that the work he
was engaged in at Seismic was extremely difficult, I have not been persuaded
that the umpire erred in confirming the Board’s decision which, in my view,
does not reveal any error which would have allowed the umpired to intervene.
[44]
The
applicant makes two arguments as to why the finding that he left his employment
with Seismic without just cause is erroneous. First, he says that he quit that
employment because of the severe pain in his knee which Dr. Wladichuk confirmed
in his medical notes of June 30, 2010 and August 11, 2010. Second, he says that
he had a reasonable assurance of other employment in the near future, i.e. with
United Safety, and that, in any event, he was assured of finding employment
with other companies if that job opportunity did not materialize. Consequently,
he had just cause to leave Seismic.
[45]
With
respect to his medical condition at the time of his departure from Seismic on
December 17, 2010, he writes the following in his Memorandum of Fact and Law
(Applicant’s Record, pages 121 and 122):
Had I returned to work for W5
after Christmas, I would have been expected to work 30 or more days in a row
(barring any sort of work stoppage). I was in considerable pain after the 8
days I worked for them. I did not need a doctor to tell me why.
The Board only mentions my knee
pain despite the fact that I explained suffering from muscle and joint pain all
over my body. I explained this to my doctor as well but he only identified my
knee problem. I can only assume this is because patellofemoral syndrome is
easier to diagnose with a physical exam (apparently my knee caps are looser
than they should be) but it was enough for him to determine that. I quit my job
due to pain from a medical problem. Although the Board does not disclose what
medical expertise they are drawing on in suggesting that they are better
informed than a doctor on medical matters, I submit that they are wrong.
[46]
With
respect to his assertion that he had a “reasonable assurance of other
employment”, he writes the following in his Memorandum (Applicant’s Record,
pages 122 and 123):
The Board misrepresented my
prospects for future employment, mainly by omitting key testimony. They
focussed on the fact that the job I chose to [sic] persue did not
materialize due to my having failed a drug test. The measure is whether or not
I had a reasonable expectation to be employed. Therefore, did I have a
reasonable expectation to pass the drug test? Although it is difficult to
defend failing a drug test, I submit that my expectation to pass was
reasonable. [Emphasis added]
I failed due to trace amounts of
marijuana being found in my system. As I am not a heavy smoker, most drug tests
will not detect any in me as long as I haven’t smoked any within the last week
or so. Since it had been 3 or 4 weeks since any had entered my system, I felt
quite confident. The problem was that it was not a usual drug test. My urine
was taken to a lab for careful analysis. I was called by the doctor who
administered the test and was told that I had failed. I asked him if he could
tell me how much was there and he said “43.1 nanograms” rather proudly. When I
asked him what kind of levels are found in other samples he told me it could be
well into the thousands.
What was completely omitted from
the Board’s decision was the fact that I had other job offers before ever
working for W5. The oilfield is very seasonal in nature, with winter being the
busy season, especially after Christmas. Before Christmas many drilling
companies will have some work but will typically be fully staffed for what they
have before the Christmas break.
I had called a few drilling
companies I knew to be good, looking for work, but they all told the same
thing: that they didn’t need me now but would love to have me work for them.
[47]
The
umpire, after a brief summary of the relevant facts, held that he could not
find just cause in the applicant’s departure from Seismic and indicated that he
subscribed entirely to the Board’s findings which he reproduced in his
decision. The question before us is therefore whether the umpire was correct in
refusing to intervene.
[48]
Before
turning to the Board’s decision and my assessment thereof, I must necessarily
point out that, like the umpire, we do not have the transcript of the evidence
adduced before the Board. Consequently, we too must rely on the Board’s
decision with respect to that testimony. I also must point out that the
applicant’s submissions found at pages 121 to 123 of his Record, which I have
reproduced above at paragraphs 45 and 46 do not constitute evidence either
before us or before the Board. These submissions are what the applicant says he
testified to before the Board, but unfortunately for him, we have no evidence
of that being the case.
[49]
First,
the Board identified the relevant test with regard to “just cause” when it
stated that the onus was on the Commission to show that the applicant had left
his employment with Seismic voluntarily and that the applicant had to show that
he had “just cause”, in all of the circumstances, in leaving his employment.
The Board then reviewed the evidence and made the findings which led to its
ultimate conclusion. These findings appear hereinabove at paragraphs 23 to 26
of these Reasons.
[50]
At
page 13 of its decision (Respondent’s Record, page 100), the Board dealt with
the applicant’s argument that his medical condition constituted “just cause”
for quitting his job at Seismic on December 17, 2009. In the Board’s view, that
assertion was not credible. The Board wrote as follows:
> The medical statement from
his doctor dated June 30, 2010 suggesting he was unable to work in December
2009 due to a right knee ailment is not credible or acceptable to this Board
with regard to the Claimant’s being unable in December 2009 to be able to
perform his duties due to health considerations as he has not proven he had to
quit his employment due to medical reasons nor was he recommended to do so by
his doctor.
[51]
The
above passage must be read in the light of the Board’s findings, found at page
12 of its decision, that it accepted as a fact that the applicant had problems
with his knee, that his working conditions at Seismic were far from ideal, that
he had no regularly scheduled breaks, but that his working conditions were not
occupationally unsafe. My understanding of the Board’s decision is that it
accepted that the applicant had knee problems and that work at Seismic was
physically very demanding. However, in the light of the evidence before it, the
Board was not satisfied that his physical condition was such that he had no
other alternative but quitting his job at Seismic.
[52]
With
respect to Dr. Wladichuk’s note of June 30, 2010, I cannot say that the Board’s
conclusion in regard thereto is unreasonable. The Board’s conclusion must
necessarily be read in the light of the evidence available to it, i.e. that when
quitting his employment at Seismic on December 17, 2009, the applicant did not
inform his employer that he had pain in his knee, nor did he provide such
information to the Commission when he filed his application for benefits in
April 2010. There was also evidence before the Board that the applicant had
taken the job at Seismic on a temporary basis only because he needed to fund
the unpaid training which he would undertake with United Safety in January,
thus suggesting that he had planned all along to leave Seismic at the earliest
opportunity. Consequently, in my view, it was entirely open to the Board to
conclude as it did that the applicant had not left Seismic for medical reasons.
[53]
I
now turn to the applicant’s second submission on “just cause”. Specifically, I
will now address his submission that he had a reasonable assurance of other
employment in the near future when he left Seismic.
[54]
The
Board dealt with this point at pages 12 and 13 of its decision (Respondent’s
Record, pages 99 and 100). At paragraphs 23 and following of these Reasons, I
summarized the Board’s findings as to why the applicant had a reasonable
alternative available to him other than leaving his employment with Seismic.
More particularly, the Board was of the view that the applicant could have
remained with Seismic until “a definite offer of new employment had been
secured”, adding that the applicant had never discussed his working conditions,
wages or any health issues with Seismic. Further, the Board found that he had
left Seismic a month prior to obtaining confirmation from United Safety that he
had been accepted into their training program and that no guarantee of
employment had been given by United Safety. Consequently, the Board found that
he had not left Seismic because he had a “reasonable assurance of another
employment in the near future”.
[55]
On
the evidence before it, there cannot be any doubt that these findings were
entirely open to the Board. In particular, these findings coupled with the
Board’s finding that there was insufficient evidence to support the applicant’s
assertion that he had left Seismic for medical reasons are, in my view,
entirely reasonable and, consequently, the applicant’s challenge cannot
succeed.
[56]
I
should perhaps say that I entirely agree with the Board that the applicant did
not have a reasonable assurance of another employment when he left Seismic on
December 17, 2009. At best, the applicant is entitled to say that he was
confident of successfully completing the training program at United Safety,
including the drug test, and ultimately of obtaining a position with that
company. That, however, is not sufficient for us to find that when he left
Seismic, he had a reasonable assurance of employment with United Safety. The
prospects were good, but there was no reasonable assurance that he would get
the job. Both in Canada (Attorney General of Canada) v. Lessard (2002), 300 N.R. 354, and in Canada (Attorney General of Canada) v. Shaw, 2002 FCA 325, this Court determined that a conditional offer of
employment did not constitute a “reasonable assurance of another employment in
the near future”. With respect, I cannot see how it could be otherwise,
particularly in a case such as the one now before us where there was not even a
conditional offer of employment.
[57]
As
I indicated at paragraph 44 of these Reasons, the applicant also argued that,
in any event, he was certain that he could find employment with other companies
if his endeavours to work for United Safety did not work out. Thus, in his
view, that gave him just cause to leave Seismic.
[58]
A
careful review of the Board’s decision clearly shows that the Board did not
deal with that argument. However, on the record before us (I again point out
that we do not have a transcript of the evidence before the Board), I am unable
to determine whether or not that argument was in fact made before the Board.
The record shows that he worked for Geostrata from February 10 to February 25,
2010, for Veritas from March 4 to March 11, 2010, and for Sourcex from March 16
to March 29, 2010. With regard to his employment with Sourcex and Geostrata,
the respective records of employment show that he lost his employment with
these companies due to a shortage of work. With regard to his employment with
Veritas, the record of employment indicates that he quit that employment.
Although not entirely clear, the evidence appears to support the view that
employment in the oil patch industry was seasonal and that it came to an end in
early April of a given year.
[59]
Be
that as it may, I do not see how it can be said that in the circumstances of
this case, the Board erred in not concluding that the applicant had a
“reasonable assurance of another employment in the near future”. It must be
remembered that there was evidence before the Board that had the applicant
remained with Seismic, he would have had work until the end of the season, i.e.
the end of March or early April 2010. However, as his records of employment
show, he only worked for five weeks between January and April 2010. I therefore
do not see any basis on which to conclude that the Board erred in finding that
when the applicant left Seismic, he had no “reasonable assurance of employment
in the near future”.
[60]
In
the end, what the judicial review application is all about is the applicant’s
disagreement with the Board’s findings of fact. Unfortunately for him, it was
not open to the umpire, nor is it open to us, to reassess the evidence that was
before the Board unless we are satisfied that in concluding as it did, the
Board erred in law or made findings of fact which were not supportable on the
record before it. A careful reading of the Board’s decision shows that it did
not find the applicant’s testimony entirely credible, considering that he gave
different reasons, at different times, as to why he had quit his employment
with Seismic. At first, the applicant said that he had quit because he was
going to a new and better job with United Safety, adding later that he viewed
his job at Seismic as a temporary one which would enable him to accumulate funds
to get him through United Safety’s unpaid training program. Later on, the
applicant said that he had quit because he had pain in his knee and that
working conditions at Seismic were horrible.
[61]
It
was the Board’s prerogative to assess the applicant’s evidence and to make the
findings of fact which it felt were warranted in the circumstances. Again,
although sympathetic to the applicant’s plight, I have not been persuaded that
there is any basis for us to intervene.
Disposition
[62]
Consequently,
I would dismiss the applicant’s judicial review applications. However, in the
particular circumstances of this case, I would make no order as to costs.
“M. Nadon”
“I
agree.
Johanne
Gauthier J.A.”
“I
agree.
Robert
M. Mainville J.A.”
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