Date: 20080108
Docket: A-21-07
Citation: 2008 FCA 10
CORAM: DESJARDINS J.A.
SEXTON
J.A.
PELLETIER J.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
and
EASWARAKUMAR MURUGAIAH
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered from the Bench at Toronto, Ontario, on January 8, 2008)
SEXTON J.A.
[1]
This is an
application for judicial review of the decision of R.C. Stevenson, Umpire (the
“Umpire”) dismissing an appeal from the Board of Referees (the “Board”) which
held that Mr. Murugaiah (the “respondent”) had left his employment with just
cause and thus was not disqualified from receiving employment insurance
benefits.
FACTS
[2]
The
respondent had taken a full time course for a year and a half in Montreal, obtaining a diploma in
electro-mechanics in order to upgrade his skills. This would presumably allow
him to work as a mechanic and electrician for automated systems. While working
two jobs as a furniture assembler and general warehouse worker, he tried to
obtain a job in this field in Montreal. However, he was told by
employers that he needed to be fluent in French due to the technical nature of
the position. The respondent claimed that learning French would not be a
reasonable option for him due to the difficulties in learning the language,
both because of his age (forty-seven) and his problems with French
pronunciation. The respondent quit his two jobs in order to move to Toronto to look for work suitable to
his recent training. The Commission determined that the respondent had
voluntarily left his employment without just cause.
[3]
On
appeal to the Board of Referees the Board concluded:
All
of this indicates that the claimant had no reasonable alternative to
remedying the situation other than leaving his employment and moving to an
English-speaking province. The Board finds that the claimant had just cause to
leave his employment and make the move.
The
Umpire dismissed the Commission’s appeal.
STANDARD
OF REVIEW
[4]
The
Umpire did not identify the appropriate standard of review to exercise in this
case, which he should have done. The question in this case is one of mixed fact
and law, – whether the respondent left his two jobs with just cause. In Budhai
this Court determined that the standard of review in such a case was
reasonableness simpliciter (at paragraph 47). We see no reason to depart
from that analysis in Budhai.
ANALYSIS
[5]
Subsection
30(1) of the Employment Insurance Act, S.C. 1996, c. 23 (the “Act”)
clearly states that a claimant is disqualified from receiving any benefits if
the claimant left any employment without just cause.
[6]
The
grounds for just cause for voluntarily leaving an employment are outlined in
section 29(c) of the Act:
(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 al the circumstances, including any of the following:
(i)
sexual
or other harassment,
(ii)
obligation
to accompany a spouse, common-law partner or dependent child to another
residence,
(iii)
discrimination
on a prohibited ground of discrimination within the meaning of the Canadian
Human Rights Act,
(iv)
working
conditions that constitute a danger to health or safety,
(v)
obligation
to care for a child or a member of the immediate family,
(vi)
reasonable
assurance of another employment in the immediate future,
(vii)
significant
modification of terms and conditions respecting wages or salary,
(viii)
excessive
overtime work or refusal to pay for overtime work,
(ix)
significant
changes in work duties,
(x)
antagonism
with a supervisor if the claimant is not primarily responsible for the
antagonism,
(xi)
practices
of an employer that are contrary to law,
(xii)
discrimination
with regard to employment because of membership in an association, organization
or union of workers,
(xiii)
undue
pressure by an employer on the claimant to leave their employment, and
(xiv)
any
other reasonable circumstances that are prescribed.
[7]
Despite
the myriad of examples provided by section 29(c) of what would constitute just
cause for voluntarily leaving an employment, the primary question remains the
same: did the claimant have no reasonable alternative to leaving the position
or taking leave from employment?
[8]
There is well
established case law from this Court to the effect that leaving ones’
employment in order to improve ones’ position in the marketplace does not
constitute just cause within the meaning of section 29(c) and section 30 of the
Employment Insurance Act. This Court’s decision in Canada (Attorney General) v. Traynor is particularly applicable in
the circumstances. In that case, Justice Marceau, for the Court, stated as
follows:
“It is clear
to me that, in the circumstances of this case, the Board of Referees had no
choice but to uphold the determination of the Commission that the respondent
was disqualified for the whole period of her claim for having deliberately
taken herself out of the work force without just cause. The Umpire was wrong in
disputing the validity of that conclusion. It is a conclusion that may appear
harsh and unfortunate to the respondent whose decision to quit her job was made
with the sole view of improving her situation in the market place.
Unfortunately, the letter, as well as the philosophy and purpose, of the
unemployment insurance scheme, in my view, does not allow any other conclusion.”
Canada (Attorney
General) v. Traynor, [1995] F.C.J. No. 836 (FCA) (QL) at para 11.
See also Canada (A.G.) v.
Sacrey, [2003] F.C.J. No. 1501 (FCA) at para 16.
[9]
There is
also no indication that the Board considered the most obvious reasonable
alternative to the respondent leaving his employment, that is, searching for
work in Toronto while working in Montreal instead of moving
immediately. That would arguably be the most reasonable alternative to
voluntarily leaving this employment.
[10]
Moreover,
this Court has recently held that suitability of employment cannot be just
cause for voluntarily leaving employment under sections 29 and 30 of the Act: Canada (Attorney General) v. Campeau, 2006 FCA 376 at paragraph
20. Given the case law on point, it is undeniable that the conclusion by the
Board was unreasonable.
[11]
While we
have considerable sympathy for the respondent’s position, we feel we must, for
the reasons given, allow the application for judicial review and set aside the
Umpire’s decision. The matter should be remitted to the Chief Umpire or his
designate with a direction to deal with the appeal from the Board of Referees
in accordance with these reasons.
“J.
Edgar Sexton”
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