Date: 20130215
Docket: A-65-12
Citation: 2013 FCA 39
CORAM: BLAIS
C.J.
PELLETIER
J.A.
TRUDEL
J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
JACQUES MARIER
Respondent
REASONS FOR JUDGMENT
TRUDEL J.A.
Introduction
[1]
The Employment
Insurance Commission [the Commission] denied the claim for employment insurance
benefits of Mr. Marier [the respondent] on the grounds that he had
voluntarily left one of his two positions without just cause and that it was
not his only reasonable alternative. The Board of Referees allowed
Mr. Marier’s appeal. The Commission appealed from the decision to the
Umpire, who upheld the decision of the Board of Referees (CUB 78444, November 23,
2010). That decision is challenged by this application for judicial review,
brought by the Attorney General of Canada [the applicant or Attorney General],
which I propose to dismiss without costs, but for reasons other than those
identified by the Umpire.
[2]
In this case, the
Attorney General submits that a worker who voluntarily leaves one of his
concurrent positions without just cause within the meaning of
paragraph 29(c) of the Employment Insurance Act, S.C. 1996,
c. 23 [the Act], is disqualified from receiving benefits unless he has, since
leaving that employment, been employed in insurable employment for the number
of hours required to be entitled to employment insurance benefits. In support
of his claim, he cites this Court’s decision in Canada (Attorney General) v.
Trochimchuk, 2011 FCA 268 [Trochimchuk].
[3]
With respect, I am of
the view that Trochimchuk does not constitute the final word on the
processing of employment insurance benefits claims from claimants holding more
than one position concurrently.
[4]
In the case of
concurrent employment, when, as is the case here, the claimant does not create
a situation of unemployment by leaving one of his positions, the Attorney
General’s position produces an absurd result that cannot reflect the intention
of Parliament. The interpretation of the relevant provisions of the Act
proposed by the Attorney General unduly penalizes those who hold more than one
position simultaneously and is inconsistent with the overall purpose of the
Act, which is to compensate those individuals who involuntarily find themselves
without employment (Canada (Attorney General) v. Lamonde, 2006 FCA 44 at
para. 9).
[5]
This is clearly
illustrated by the following example: Mr. X starts work at the ABC factory
on January 1, 2005. In January 2012, he takes a second job at XYZ to
cover some unforeseen expenses. On June 1, 2012, he leaves this second job
voluntarily, fully aware that he has another job and that he will not find
himself unemployed. Unfortunately for him, in August 2012, ABC downsizes and
Mr. X loses his employment there through no fault of his own. According to
the Attorney General, relying on Trochimchuk, Mr. X would not be
entitled to employment insurance benefits, since he did not accumulate enough
hours in two months at ABC to be eligible. Removed from the calculation are not
only the hours that he had accumulated at XYZ before June 1, 2012, but
also any hours that he had accumulated at ABC before that date.
The relevant facts
[6]
The facts are simple.
Mr. Marier filed an initial claim for regular benefits effective
July 18, 2010. During his qualifying period, that is, the 52 weeks
preceding the start date of the claim, Mr. Marier held two part-time
positions. From June 13, 2009, to February 1, 2010, he worked for Nettoyage Solvanet [Solvanet]. He was on a daytime recall list and worked 25 to 30
hours a week. Mr. Marier voluntarily left that job in order to pursue a
five-month cleaning course, while keeping his evening position.
[7]
From July 1,
2009, to July 18, 2010, the respondent also worked 25 to 30 hours a week
for the Coopérative des horticulteurs
de Québec [Coopérative]. He
also ended up voluntarily leaving this job in order to accept employment at the
Centre de santé et de services sociaux
de la Vieille-Capitale [CSSS de la Vieille-Capitale], which was to begin on August 5. As a result
of a decision by his new employer, he did not begin working for them until
August 30, 2010, a few weeks later than anticipated. This was the reason
for his claim for benefits for the period from July 18, 2010, to August 30, 2010.
[8]
On September 25,
2010, the applicant received the Commission’s final decision (Applicant’s
Record at page 36). The first two paragraphs of this decision read as follows:
[translation]
We wish to inform you that we cannot pay you regular
employment insurance benefits because you voluntarily left your employment
at [Solvanet] . . . without just
cause . . . We are of the view that voluntarily leaving
your employment was not the only reasonable alternative in your case. However,
given that your benefit period started on July 18, 2010, the refusal to
pay benefits will be effective as of that date only.
We have checked whether you have worked the minimum
number of insurable hours required since voluntarily leaving your employment
without just cause. Unfortunately, you have accumulated only 581 hours of
insurable employment, while you need 700 hours.
[Emphasis added.]
[9]
That finding results
from a calculation that does not take into account the hours of insurable
employment worked by Mr. Marier at the Coopérative prior
to the date of his voluntary departure from Solvanet. The evidence shows that
Mr. Marier had worked for the Coopérative for nearly
1000 hours. According to the Commission’s decision, Mr. Marier had to
accumulate 700 hours of employment after leaving Solvanet to be entitled to
regular employment insurance benefits. Therefore, when he left Solvanet, the
counter was reset to zero, regardless of any other insurable employment that he
held concurrently.
Issues
[10]
At paragraph 13 of
his memorandum of fact and law, the applicant raises the following issues:
[translation]
(a) Did the Umpire err in taking
into account the insurable hours of employment accumulated at the [Coopérative] by the respondent prior to his voluntary departure from another job, at
[Solvanet], thereby failing to apply paragraph 30(1)(a) and
subsection 30(5) of the Act?
(b) Did the Umpire err in law in
failing to address the issue of whether the voluntary departure was without
just cause, as required by sections 29 and 30 of the Act?
[11]
I will limit my
analysis to the second issue. Paragraph 30(1)(a) and
subsection 30(5) of the Act would only be relevant if I were to conclude
that the respondent voluntarily left his employment with Solvanet without just
cause. That is not what I conclude.
[12]
I am therefore departing
from Trochimchuk, which only interprets subsection 30(5) of the
Act, especially given that the Umpire and the Court of Appeal in that case did
not provide a detailed description of the facts, making it difficult to compare
the situations of the claimants. The issue of whether the claimant had left his
first employment voluntarily and without just cause seems to have been taken
for granted. In Trochimchuk, the claimant had, in fact, voluntarily left
her employment on May 10, 2009, in order to return to school. The Court
merely cited the long line of case law according to which leaving one’s job in
order to study does not constitute just cause within the meaning of the Act (Trochimchuk
at para. 2, citing Canada (Attorney General) v. Mancheron, 2001 FCA
174). The Court then analyzed the Umpire’s decision (CUB 76124, December 16,
2010), which had dealt solely with the [translation]
“issue of the proposed interpretation to give to subsection 30(5) of the
[Act]”.
[13]
My approach is quite
different, as I have written above. In the light of this and of the facts in
this case, I do not feel bound in any way by Trochimchuk. However,
before I develop my reasoning, it would be useful to set out the relevant
provisions of the Act and the parties’ positions.
[14]
Section 7 of the
Act deals with the criteria for receiving benefits. Employment insurance
benefits are payable if
|
7(2) An insured
person, other than a new entrant or a re-entrant to the labour force,
qualifies if the person
o
(a) has had an interruption of
earnings from employment; and
o
(b) has had during their
qualifying period at least the number of hours of insurable employment set
out in the following table in relation to the regional rate of unemployment
that applies to the person.
|
7(2) L’assuré autre qu’une personne qui
devient ou redevient membre de la population active remplit les conditions
requises si, à la fois :
o
a) il y
a eu arrêt de la rémunération provenant de son emploi;
o
b) il a,
au cours de sa période de référence, exercé un emploi assurable pendant au
moins le nombre d’heures indiqué au tableau qui suit en fonction du taux
régional de chômage qui lui est applicable.
|
[15]
Section 30 falls
under the heading “Disqualification and Disentitlement” and deals with, among
other things, misconduct and leaving without just cause. It reads as follows:
|
30. (1) A claimant is disqualified from receiving any benefits
if the claimant lost any employment because of their misconduct or
voluntarily left any employment without just cause, unless
o
(a) the claimant has, since
losing or leaving the employment, been employed in insurable employment for
the number of hours required by section 7 or 7.1 to qualify to receive
benefits; or
. . .
•
(5) If a claimant who has lost or left
an employment as described in subsection (1) makes an initial claim for
benefits, the following hours may not be used to qualify under section 7
or 7.1 to receive benefits:
o
(a) hours of insurable
employment from that or any other employment before the employment was lost
or left; and
o
(b) hours of insurable
employment in any employment that the claimant subsequently loses or leaves,
as described in subsection (1).
. . .
[Emphasis
added.]
|
30. (1) Le prestataire est exclu du bénéfice des prestations
s’il perd un emploi en raison de son inconduite ou s’il quitte
volontairement un emploi sans justification, à moins, selon le cas :
o
a) que,
depuis qu’il a perdu ou quitté cet emploi, il ait exercé un emploi assurable
pendant le nombre d’heures requis, au titre de l’article 7 ou 7.1, pour
recevoir des prestations de chômage;
[…]
(5) Dans les cas
où le prestataire qui a perdu ou quitté un emploi dans les
circonstances visées au paragraphe (1) formule une demande initiale de
prestations, les heures d’emploi assurable provenant de cet emploi ou de
tout autre emploi qui précèdent la perte de cet emploi ou le départ
volontaire et les heures d’emploi assurable dans tout emploi que le
prestataire perd ou quitte par la suite, dans les mêmes circonstances,
n’entrent pas en ligne de compte pour l’application de l’article 7 ou 7.1.
[…]
[Je
souligne.]
|
[16]
Finally,
section 29 sets out interpretation guidelines for section 30, cited
above. Paragraphs 29(b.1) and (c) read as follows:
|
29. For the purposes of sections 30
to 33,
. . .
•
(b.1) voluntarily
leaving an employment includes
o
(i) the
refusal of employment offered as an alternative to an anticipated loss of
employment, in which case the voluntary leaving occurs when the loss of
employment occurs,
o
(ii) the
refusal to resume an employment, in which case the voluntary leaving occurs
when the employment is supposed to be resumed, and
o
(iii) the
refusal to continue in an employment after the work, undertaking or business
of the employer is transferred to another employer, in which case the
voluntary leaving occurs when the work, undertaking or business is
transferred; and
o
•
(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:
o
(i) sexual or
other harassment,
o
(ii) obligation
to accompany a spouse, common-law partner or dependent child to another
residence,
o
(iii) discrimination
on a prohibited ground of discrimination within the meaning of the Canadian
Human Rights Act,
o
(iv) working
conditions that constitute a danger to health or safety,
o
(v) obligation
to care for a child or a member of the immediate family,
o
(vi) reasonable
assurance of another employment in the immediate future,
o
(vii) significant
modification of terms and conditions respecting wages or salary,
o
(viii) excessive
overtime work or refusal to pay for overtime work,
o
(ix) significant
changes in work duties,
o
(x) antagonism
with a supervisor if the claimant is not primarily responsible for the
antagonism,
o
(xi) practices
of an employer that are contrary to law,
o
(xii) discrimination
with regard to employment because of membership in an association,
organization or union of workers,
o
o
(xiii) undue
pressure by an employer on the claimant to leave their employment, and
o
(xiv) any
other reasonable circumstances that are prescribed.
[Emphasis added.]
|
29. Pour l’application des articles
30 à 33 :
[…]
•
b.1) sont assimilés à un départ
volontaire le refus :
o
(i) d’accepter
un emploi offert comme solution de rechange à la perte prévisible de son
emploi, auquel cas le départ volontaire a lieu au moment où son emploi prend
fin,
o
(ii) de reprendre
son emploi, auquel cas le départ volontaire a lieu au moment où il est censé
le reprendre,
o
o
(iii) de
continuer d’exercer son emploi lorsque celui-ci est visé par le transfert
d’une activité, d’une entreprise ou d’un secteur à un autre employeur, auquel
cas le départ volontaire a lieu au moment du transfert;
•
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 :
•
o
(i) harcèlement,
de nature sexuelle ou autre,
o
(ii) nécessité
d’accompagner son époux ou conjoint de fait ou un enfant à charge vers un
autre lieu de résidence,
o
(iii) discrimination
fondée sur des motifs de distinction illicite, au sens de la Loi
canadienne sur les droits de la personne,
o
(iv) conditions
de travail dangereuses pour sa santé ou sa sécurité,
o
(v) nécessité
de prendre soin d’un enfant ou d’un proche parent,
o
(vi) assurance
raisonnable d’un autre emploi dans un avenir immédiat,
o
(vii) modification
importante de ses conditions de rémunération,
o
(viii) excès
d’heures supplémentaires ou non-rémunération de celles-ci,
o
(ix) modification
importante des fonctions,
o
(x) relations
conflictuelles, dont la cause ne lui est pas essentiellement imputable, avec
un supérieur,
o
(xi) pratiques
de l’employeur contraires au droit,
o
(xii) discrimination
relative à l’emploi en raison de l’appartenance à une association, une
organisation ou un syndicat de travailleurs,
o
(xiii) incitation
indue par l’employeur à l’égard du prestataire à quitter son emploi,
o
(xiv) toute
autre circonstance raisonnable prévue par règlement.
[Je souligne.]
|
Positions of the parties
[17]
As mentioned above,
the Attorney General submits that the Umpire erred in law by failing to apply
paragraph 30(1)(a) and subsection 30(5) of the Act. In response to
the questions of the Court during the hearing for this application for judicial
review, particularly with respect to claimants in concurrent employment
situations, counsel for the applicant kept pointing to Trochimchuk. The
respondent submitted no record and did not attend the hearing. A memorandum, a
copy of which the applicant received, states that Mr. Marier, at least in
October 2012 when the memorandum was drafted by a registry officer, was
hospitalized following a stroke. Neither the respondent nor his representative,
Jacques Marier, was present at the hearing, but the Court notes that the latter
intended to submit a few observations on the many levels involved in obtaining
a final decision in an employment insurance case. This issue is not in dispute,
and I do not intend to address it further.
Analysis
[18]
Did Mr. Marier voluntarily
leave his employment with Solvanet without just cause? No. The effect of the
Attorney General’s position, in my view, is to deprive the words “voluntarily
leave one’s employment without just cause” of any meaning.
[19]
According to the
wording of paragraph 29(c), above, to determine whether a claimant
has “just cause for voluntarily leaving an employment”, one must decide
“whether, having regard to all the circumstances, on a balance of
probabilities, the claimant had no reasonable alternative to leaving the
employment” (Canada (Attorney General) v. White, 2011 FCA 190 [White];
Harold MacNeil v. Canada (Employment Insurance Commission), 2009 FCA
306). The claimant bears the burden of establishing just cause (Canada (Attorney
General) v. Patel, 2010 FCA 95, cited at para. 3 of White).
[20]
Paragraph 29(c)
sets out a non-exhaustive list of situations that could constitute just cause
for voluntarily leaving an employment, such as the following at
subparagraph 29(c)(vi): “reasonable assurance of another employment
in the immediate future”. This same subparagraph played in Mr. Marier’s favour
when he left the Coopérative to begin working for the CSSS de la Vieille-Capitale, but here I am citing it for a different reason. In
Canada (Attorney General) v. Langlois, 2008 FCA 18 [Langlois],
this Court noted the difficulty of reading together harmoniously the words “if
the claimant had no reasonable alternative to leaving or taking leave” from
paragraph 29(c) and the wording of subparagraph 29(c)(vi)
cited above. This Court’s reasoning in that case is highly relevant here.
Justice Létourneau wrote the following on behalf of the majority:
[17] Indeed, it is by no means obvious that
these two phrases exist harmoniously with one another: it is difficult, if not
impossible, to contend or conclude that a person who voluntarily leaves
employment to occupy different employment is doing so necessarily because
leaving is the only reasonable alternative. A person may simply wish to
reorient his career or advance within his trade or profession by changing
employers.
[18] This notion of “no reasonable alternative”
does apply, without a doubt, to many of the situations provided for in
paragraph 29(c). Thus, it is often possible to resolve the issues posed
by the following situations through methods other than leaving one’s
employment: sexual or other harassment (subparagraph 29(c)(i)),
discrimination (subparagraph 29(c)(iii)), working conditions that
constitute a danger to health or safety (subparagraph 29(c)(iv)),
excessive overtime work (subparagraph 29(c)(viii)), to name just a few.
[19] For example, one could mitigate the
problem of dangerous employment by improving working conditions, by wearing a
mask or other safety equipment, or by arranging to be relocated in another part
of the factory or company: see Canada (Attorney General) v. Hernandez,
2007 FCA 320. An employee resigns in such situations as a last resort, and the
legislator’s requirement that there be no reasonable alternative to leaving is
understandable.
[20] Most of the situations envisaged by
paragraph 29(c) relate to incidents or actions that arise in the context
of the employment held by the claimant. Subparagraph 29(c)(vi) is
intended for an entirely different scenario, one that involves a change of
employment, so it is not a matter of coming up with or applying a remedy within
a single employment context where alternatives to leaving can be easily
envisaged.
[21] There is another important characteristic
of subparagraph 29(c)(vi) that sets it apart from the other section 29
scenarios. As this Court emphasized in Canada (Attorney General) v. Campeau,
2006 FCA 376 and Canada (Attorney General) v. Côté, 2006 FCA 219,
subparagraph 29(c)(vi) is the only one, along with the residual clause
in subparagraph 29(c)(xiv) (any other reasonable circumstances that are
prescribed), that does not assume intervention by a third party. In other
words, the circumstances provided for in subparagraph 29(c)(vi) will
come into being solely through the will of the claimant. As I shall point out
below, this pecularity [sic] of subparagraph 29(c)(vi) brings us
back to the very foundations and principles of insurance, which is, need one be
reminded, a compensation system based on risk.
[21]
The case law is well
settled : the overall purpose of the Act is to make benefits available to the
unemployed (Canada (Attorney General) v. Abrahams, [1983] 1 S.C.R. 2).
In Langlois, above, this Court wrote the following at paragraph 32:
The insurance offered by the scheme is a function of
the risk run by an employee of losing his employment. Apart from certain
exceptions, it is the responsibility of insured persons, in exchange for their
participation in the scheme, not to provoke that risk or, a fortiori,
transform what was only a risk of unemployment into a certainty: see Tanguay
v. Canada (Unemployment Insurance Commission) (F.C.A.), [1985] F.C.J. no.
910.
[22]
The case law is rich
with examples in which a claimant’s particular circumstances have been examined
to determine whether the decision to leave his or her employment voluntarily
was with just cause within the meaning of the Act (see, for example, the
following: Lakic v. Canada (Attorney General), 2013 FCA 4; Green v.
Canada (Attorney General), 2012 FCA 313; Canada (Attorney General) v.
White, 2011 FCA 190; Canada (Attorney General) v. Langevin, 2011 FCA
163; Canada (Attorney General) v. Greey, 2009 FCA 296; Canada (Attorney
General) v. Richard, 2009 FCA 122; Canada (Attorney General) v. Langlois,
2008 FCA 18; Canada (Attorney General) v. Imran, 2008 FCA 17; Canada
(Attorney General) v. Murugaiah, 2008 FCA 10; Canada (Attorney General) v.
Bordage, 2005 FCA 155 and Canada (Attorney General) v. Laughland,
2003 FCA 129).
[23]
It mainly stands for
the proposition that a claimant voluntarily leaves an employment without just
cause within the meaning of paragraph 29(c) when this act results in
a period of immediate unemployment of which he or she could not have been
unaware (e.g., quitting a job to return to school) or of deferred unemployment
of which he or she should have been aware (e.g., leaving full-time employment
to accept part-time employment) and that it is not justified because it is not
the only reasonable alternative for that claimant. This principle is easily
explained in the context of an employment insurance program based on a system
of calculated risks. This interpretation of the phrase “just cause for
voluntarily leaving an employment” is perfectly consistent with the overall
purpose of the Act, which, I repeat, is to provide benefits to those who are
truly unemployed, and not those who have contributed to their state of unemployment
when this was not the only reasonable alternative.
[24]
In this case,
Mr. Marier voluntarily left his employment with Solvanet to enrol in
daytime courses, knowing that he still had a position with the Coopérative occupying
him for 25 to 30 hours a week, and that this position was in no way threatened.
Under the doctrine of Langlois, he was creating neither a risk nor a
certainty of unemployment. He was evidently “capable of and available for work”
within the meaning of section 18 of the Act, since he was still performing
his duties for the Coopérative.
[25]
In my view, the
Attorney General’s position puts at risk anybody who holds concurrent
employment and chooses to leave one position voluntarily. Without a
demonstration of one of the situations described in paragraph 29(c),
above, or any other similar or prescribed circumstances, the worker’s decision
can never meet the “only reasonable alternative” test. In practice, according
to this position, the only reasonable alternative open to Mr. Marier was
to maintain the status quo and never quit either of his concurrent jobs
for fear of risking disqualification from benefits. However, nothing in the Act
requires claimants to hold more than one position at a time.
[26]
I must point out this
Court’s decisions in Canada (Attorney General) v. Leung, 2004 FCA 160, and
Gennarelli v. Canada (Attorney General), 2004 FCA 198, in which it was
held that the claimants had just cause for leaving one of their two concurrent
positions voluntarily because each had “reasonable grounds to believe” that the
other position would continue.
[27]
I have reached the
same conclusion in this case. Mr. Marier had just cause to leave his
employment with Solvanet voluntarily, knowing that he would be keeping his
second job with the Coopérative. He did not quit the Coopérative until he was assured of a new position at the CSSS de la Vieille-Capitale, a voluntary departure that was justified according
to the Commission.
[28]
In the light of this
finding, there is no need to address the issue of the interpretation of
subsection 30(5) of the Act.
Conclusion
[29]
For these reasons, I
propose that the application for judicial review be dismissed without costs.
“Johanne Trudel”
“I concur.
Pierre Blais C.J.”
“I concur.
J.D. Denis Pelletier J.A.”
Certified true translation
François Brunet, Revisor
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