Date:
20101109
Docket:
A-96-10
Citation: 2010
FCA 301
CORAM: DAWSON J.A.
LAYDEN-STEVENSON
J.A.
STRATAS
J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
DARRICK MACLEOD
Respondent
REASONS FOR JUDGMENT
LAYDEN-STEVENSON J.A.
[1] The Attorney General of Canada (the Crown)
applies for judicial review of the January 28, 2010 decision of Umpire Riche
(the umpire) made pursuant to the Employment Insurance Act, S.C.
1996, c. 23 (the Act). The umpire affirmed a decision of the Board of Referees
(the board) allowing the appeal of the respondent (the claimant) on the basis
that the claimant had “just cause” for leaving his employment. For the reasons
that follow, I am of the view that the Crown’s application should be allowed.
[2] The
test for determining whether an individual had “just cause” under section 29 of
the Act is whether, having regard to all the circumstances, on a balance of
probabilities, the claimant had no reasonable alternative to leaving the
employment: Astronomo v. Canada (A.G.) (1998), 229 N.R. 247, 37
C.C.E.L. (2d) 141 at para. 6 (F.C.A.); Canada (A.G.) v. Imran, 2008 FCA
17, 378 N.R. 243 at paras. 2, 3.
[3] The
claimant was employed with Met Inc. from October 27, 2008 until December 1,
2008, when he left to pursue a non-destructive testing course for Canadian
General Standards Board Level II designation. The Commission denied his
application for benefits on the basis that he voluntarily left his employment.
On appeal, the board concluded that the claimant “did what any other reasonable
person would do.”
[4] On
the Crown’s appeal, the umpire referred to the correct test for “just cause”
and concluded, at least implicitly, that the board had applied an incorrect
test. However, the umpire concluded that “it was not…reasonable to expect the
claimant to stay at a Level I position in these circumstances.” He appears to
have arrived at this conclusion on the basis that the claimant temporarily left
his employment, without his employer’s permission, for the purpose of pursuing
his studies. This finding is inconsistent with the board’s factual finding that
the employment terminated on December 1, 2008. Although section 117 of the Act
grants the umpire broad powers to decide questions of fact or law necessary for
the disposition of an appeal, the umpire cannot substitute his assessment of
facts for that of the board unless he finds that the board’s assessment was not
reasonably open to it: Marlowe v. Canada (Attorney General), 2009
FCA 102, C.L.L.C. 240-006.
[5] More
importantly, the umpire’s finding is inconsistent with the evidentiary record.
The record shows that the claimant left his employment to undertake studies and
did not simply attempt to take an unauthorized temporary leave of absence.
Specifically, the claimant’s notice of appeal to the board and his attached
correspondence show that, in the claimant’s view, he accepted a term contract
until December 8, 2008 and he effectively fulfilled his contract by working
until December 1, 2008, when he left his employment to undertake his studies
(application record at pp. 68-72).Yet, the claimant received an email from his
employer on November 21, 2008, requesting final confirmation as to whether he
would continue working, rather than undertake his studies at that time, since
the existing project was expected to continue into the spring of 2009. The
claimant rejected the employer’s request, elected to pursue the non-destructive
testing course and suggested that his nephew would be able to replace him
(application record at p. 83). Further, at the hearing, the claimant
acknowledged that he knew, when he left his employment, the employer had work for
him and wanted him to stay.
[6] It is
settled law that voluntarily leaving one’s employment to undertake studies does
not constitute “just cause”: Canada (A.G.)
v. Mancheron, 2001 FCA 174, 109 A.C.W.S. (3d) 538 at para. 2. Consequently,
neither the umpire nor the board could reasonably conclude, on the record, that
the claimant had just cause for leaving his employment.
[7] I
would allow the application for judicial review, set aside the decision of the
umpire and return the matter to the Chief Umpire or one of his delegates for
redetermination on the basis that the claimant left his employment without just
cause. The Crown did not seek costs, therefore, I would not award costs.
"Carolyn
Layden-Stevenson”
“I
agree.
Eleanor
R. Dawson J.A.”
“I
agree
David
Stratas J.A.”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-96-10
STYLE OF CAUSE: AGC
v. MACLEOD
PLACE OF HEARING: Halifax, Nova Scotia
DATE OF HEARING: November 8, 2010
REASONS FOR JUDGMENT BY: LAYDEN-STEVENSON J.A.
CONCURRED IN BY: DAWSON J.A.
STRATAS J.A.
DATED: November 9, 2010
APPEARANCES:
|
Mr. MARK FREEMAN
|
FOR
THE APPLICANT
|
|
Mr. DARRICK MACLEOD
|
ON
HIS OWN BEHALF
|
SOLICITORS OF RECORD:
|
Myles J. Kirvan
Deputy
Attorney General of Canada
|
FOR
THE APPLICANT
|
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