[1] The applicant (the claimant) voluntarily left his employment because the nature of the duties assigned to him were not as his employer and he had originally agreed. He submits that he "had no reasonable alternative" within the meaning of paragraph 29(c) of the Employment Insurance Act (the Act) and he relies specifically on sub-paragraph (ix), i.e. "significant changes in work duties".

[2] The Commission dismissed his claim for benefits, but the Board of Referees allowed the claimants's appeal. After a brief review of the claimant's and employer's versions of the events, the Board determined as follows:

In view of these facts, the Board of Referees is confronted with two contradictory testimonies and gives the benefit of the doubt to the appellant.

[3] The Commission appealed this decision to the Umpire, who allowed the appeal, inter alia, on the grounds that the Board of Referees had failed to decide the issue that was really in dispute, i.e.: was there no reasonable alternative to voluntarily leaving having regard to all of the circumstances? Proceeding to answer his own question, he determined the following:

The evidence showed that the claimant worked only eight days before leaving his employment because he was not satisfied with the process that the employer was requiring him to follow before working as a machine operator. It has consistently been held that an employee may have just cause for leaving employment that is fundamentally different from the employment for which he or she was hired, but in Mr. Chaoui's case the evidence shows that what was involved was a series of steps in the learning process leading to the position that the claimant wanted. The employer had told him that he had to wait, not that he would be working permanently in a packager position. In addition, the claimant could have asked about how long he would have to work as a packager. He could also have continued to work until he found a job that was more consistent with his aspirations, rather than having to depend on the employment insurance system. He had been working for only eight days. There was no evidence that the working conditions were intolerable.

[4] I understand that by giving the appellant "the benefit of the doubt", the Board of Referees' position was that it preferred the claimant's version of the facts to that of the employer. The Board of Referees was surely not referring to the "benefit of the doubt" stated in subsection 49(2) of the Act, as that subsection only applies to the Commission's decisions and evidently does not apply at the level of the Board of Referees. That said, we do not really know what the Board of Referees decided in giving the benefit of the doubt to the claimant.

[5] Not only did the Board of Referees fail to ask itself the relevant question, i.e. was there no reasonable alternative to voluntarily leaving having regard to all of the circumstances, but it also failed to ask itself whether there were "significant changes in work duties" within the meaning of the Act.

[6] The Umpire was therefore correct to intervene. In doing so, however, he was not entitled to accept the employer's version of the facts since they were disregarded by the Board of Referees. He should have instead asked himself if the claimant's version of the facts supported a finding that there was "significant changes in work duties", which he did not do. The matter must therefore be referred to an umpire so that he or she can decide that issue.

[7] Furthermore, in stating that the claimant should have "continued to work until he found a job that was more consistent with his aspirations" and that there was "no evidence that the working conditions were intolerable", the Umpire went beyond the requirements of paragraph 29(c) and imposed a burden that ultimately renders that paragraph meaningless.

[8] The application for judicial review should therefore be allowed with costs and the decision by the Umpire set aside. The matter should be referred to the Chief Umpire or to an umpire designated by him for redetermination while answering the following questions: does the claimant's version of the facts support a finding that there were "significant changes in work duties" within the meaning of subparagraph 29(c)(ix) and, if so, was there no reasonable alternative to voluntarily leaving within the meaning of paragraph 29(c)?

"Robert Décary"

J.A.

"I concur.

LÉTOURNEAU J.A."

"I concur.

PELLETIER J.A.-"

Certified true translation

Kelley A. Harvey, BCL, LLB

FEDERAL COURT OF APPEAL

SOLICITORS OF RECORD

DOCKET: A-255-04

APPEAL FROM A JUDGMENT BY THE UMPIRE DATED FEBRUARY 24, 2004, IN DOCKET NO. CUB 60135.

STYLE OF CAUSE: SAID CHAOUI

Applicant

ATTORNEY GENERAL

OF CANADA

Respondent

PLACE OF HEARING: Montréal, Quebec

DATE OF HEARING: February 15, 2005

REASONS FOR JUDGMENT: DÉCARY J.A.

CONCURRED IN BY: LÉTOURNEAU, PELLETIER, JJ.A.

DATE OF REASONS: February 17, 2005

APPEARANCES :

Roch Guertin

FOR THE APPLICANT

Pauline Leroux

FOR THE RESPONDENT

SOLICITORS OF RECORD :

Roch Guertin, Avocat

Montréal, Quebec

FOR THE APPLICANT

JOHN H. SIMS, Q.C.

DEPUTY ATTORNEY GENERAL OF CANADA

Montréal, Quebec

FOR THE RESPONDENT

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