A-20-82
Attorney General of Canada (Applicant)
v.
William Cole (Respondent)
Appeal Division, Thurlow C.J., Cowan and
Lalande D.JJ.—Toronto, September 21, 1982.
Judicial review — Applications to review — Unemployment
insurance — S. 28 application to review and set aside decision
of Umpire granting appeal from decision of Board of Referees
that respondent not entitled to benefits on basis of s. 41(1) of
Unemployment Insurance Act which disentitles persons who
have left jobs without just cause from receiving benefits —
Respondent had voluntarily taken early retirement pursuant to
agreement between himself and employer — Umpire reversed
Board's decision on basis of differing view of facts and on
grounds Board, in similar cases, had decided claimants en
titled to benefits — Scope of appeal to Umpire under s. 95 of
Act — Under s. 95 Umpire not entitled to substitute own view
of facts of case for that of Board but can interfere only where
Board's finding not sustainable on material before it — Also,
in that other decisions to which Umpire referred were made
after decision under review, by Boards differently constituted
and on particular facts of those cases, they are not relevant to
question to be decided and cannot afford support for conclu
sion that decision in question was made capriciously —
Application allowed — Unemployment Insurance Act, 1971,
S.C. 1970-71-72, c. 48, ss. 41(1), 43(1) (rep. by S.C. 1974-75-
76, c. 80, s. 16), 95 (rep. by S.C. 1976-77, c. 54, s. 56) —
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
COUNSEL:
R. Levine for applicant.
APPEARANCE:
W. Cole on his own behalf.
SOLICITOR:
Deputy Attorney General of Canada for
applicant.
RESPONDENT ON HIS OWN BEHALF:
W. Cole, Brantford.
The following are the reasons for judgment of
the Court delivered orally in English by
THURLow C.J.: This is an application to review
and set aside a decision of an Umpire under the
Unemployment Insurance Act, 1971, S.C. 1970-
71-72, c. 48, which allowed an appeal by the
respondent from the decision of a Board of
Referees and held that the respondent had just
cause for leaving his employment with Massey-
Ferguson Industries Ltd. when he voluntarily
retired from the company's employ pursuant to an
agreement between himself and the company. At
the time of his retirement, the respondent was 50
years of age and had been in the employ of the
company for some 33 years.
Under subsection 41(1) ' of the Act, a claimant
is disqualified from receiving unemployment insur
ance benefits for a period which, under subsection
43(1) [rep. by S.C. 1974-75-76, c. 80, s. 16] z , may
not exceed six weeks, if he voluntarily left his
employment without just cause.
The Board's decision was expressed as follows:
The Board reviewed the evidence available and unanimously
agree that the claimant left his employment with Massey-
Ferguson Industries Ltd. without just cause.
Based on the evidence presented and supported by the decision
contained within CUBS 5534 and 5535, the Board were [sic]
satisfied that the claimant's acceptance of early retirement
under no pressure from that company did not constitute just
cause for leaving under the Act.
While the claimant may have felt that subsequent termination
was a possibility, this could not be judged definite enought [sic]
to constitute just cause.
In reversing this decision the learned Umpire,
after considering inter alia the situations disclosed
by the reasons of the Board in the cases of three
other employees of Massey-Ferguson who had left
their employment under conditions that were Simi-
' 41. (1) A claimant is disqualified from receiving benefits
under this Part if he lost his employment by reason of his own
misconduct or if he voluntarily left his employment without just
cause.
2 43. (1) Where a claimant is disqualified under section 40 or
41 from receiving benefits, the disqualification shall be for such
weeks following his waiting period, not exceeding six, for which
benefit would otherwise be payable as are determined by the
Commission.
lar in at least some respects to those of the
respondent's case, said:
The fact that other persons on similar facts were not deemed
benefits (sic) and these decisions were not appealed by the
Commission to an Umpire would be sufficient reason for me to
allow this appeal but I am going to allow the appeal on the
ground that Mr. Cole under the circumstances had just grounds
for taking early retirement.
I am of the view that an employee employed under circum
stances where lay-offs and with the closing down of the plant
are in the office (sic) is quite justified in taking early retire
ment provided of course that he shows his intention of joining
the work force with another employer.
The scope of an appeal to the Umpire under
section 95 of the Unemployment Insurance Act,
1971 [rep. by S.C. 1976-77, c. 54, s. 56], is limited
to appealing
95.... on the grounds that
(a) the board of referees failed to observe a principle of
natural justice or otherwise acted beyond or refused to
exercise its jurisdiction;
(b) the board of referees erred in law in making its decision
or order, whether or not the error appears on the face of the
record; or
(c) the board of referees based its decision or order on an
erroneous finding of fact that it made in a perverse and
capricious manner or without regard for the material before
it.
As the wording defining these grounds follows
very closely that of subsection 28(1) 3 of the Fed
eral Court Act, R.S.C. 1970 (2nd Supp.), c. 10,
assistance in determining the scope of the grounds
for an appeal to the Umpire can be obtained from
the wealth of jurisprudence that has been reported
on the scope of review that is available under
section 28. It has been firmly established by that
jurisprudence that the Court is not entitled to
3 28. (1) Notwithstanding section 18 or the provisions of any
other Act, the Court of Appeal has jurisdiction to hear and
determine an application to review and set aside a decision or
order, other than a decision or order of an administrative
nature not required by law to be made on a judicial or
quasi-judicial basis, made by or in the course of proceedings
before a federal board, commission or other tribunal, upon the
ground that the board, commission or tribunal
(a) failed to observe a principle of natural justice or other
wise acted beyond or refused to exercise its jurisdiction;
(b) erred in law in making its decision or order, whether or
not the error appears on the face of the record; or
(e) 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.
substitute its view of the facts of a case for that of
the tribunal whose decision is under review and
that with respect to the tribunal's findings of fact,
the Court can interfere only when the finding is
not sustainable on the material that was before the
tribunal.
In the present case, the learned Umpire appears
to have considered that he would have been justi
fied in reversing the Board's decision on the mere
ground that other decisions in which a different
result was reached were not appealed by the Com
mission. These decisions, however, were made later
than the decision here in question. They were
made by Boards that were differently constituted
and on the facts put before those Boards in the
particular cases. We do not think that the deci
sions in these cases afford support for a conclusion
that the decision here in question was made capri
ciously or that the decisions were relevant to the
question to be decided. In our view, nothing in
them, either individually or collectively, would
have justified the learned Umpire in allowing the
respondent's appeal.
We are also of the opinion that the finding of
the Board that the respondent left his employment
without just cause is supported by the material
that was before them and that the learned Umpire
erred in law in setting their finding aside and
substituting his own view.
The decision is set aside and the matter is
referred back to the Umpire for determination of
the respondent's appeal on the basis that the
respondent left his employment without "just
cause" within the meaning of subsection 41(1) of
the Act.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.