Date: 20080116
Docket: A-104-07
Citation: 2008 FCA 17
CORAM: NOËL
J.A.
SHARLOW
J.A.
RYER
J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
MUHAMMAD IMRAN
Respondent
REASONS FOR JUDGMENT
RYER J.A.
[1]
This is an application for judicial review of a
decision of the Chief Umpire Designate Paul Rouleau (CUB 67542), dated January
19, 2007, under the Employment Insurance Act, S.C. 1996, c. 23 (the
“Act”) allowing the appeal of Mr. Muhammad Imran from a decision of the Board
of Referees (the “Board”) that Mr. Imran was not entitled to benefits under the
Act because he had voluntarily left his employment without just cause.
[2]
Subsection 30(1) of the Act provides that a
claimant is disqualified from receiving benefits where he voluntarily leaves
employment without just cause, except in limited circumstances that are not
applicable to the facts under consideration. Paragraph 29(c) of the Act
provides that just cause for voluntarily leaving an employment exists where the
claimant had no reasonable alternative to leaving an employment. That provision
goes on to stipulate that just cause will be shown to exist if any one of
fourteen enumerated sets of circumstances can be demonstrated. Those
circumstances are contained in subparagraphs 29(c)(i) to (xiv) of the
Act.
[3]
In this application, the issues were whether Mr.
Imran had no reasonable alternative except to voluntarily leave his employment
or whether the circumstances described in subparagraph 29(c)(vi) of the
Act were present, namely whether Mr. Imran had reasonable assurance of another
employment in the immediate future.
[4]
Before the Board, Mr. Imran submitted that one
of the reasons he had left his job at CBCL Outsourcing Inc., a call centre, was
to search for a better job in which he could make use of his Masters Degree in
Civil Engineering. Other explanations provided by Mr. Imran for leaving his job
included that it was stressful dealing with customers in the United States who
degraded him because of his accent and racial origin, that he had to travel to
Pakistan for family reasons, and that he had a hearing problem in one ear that
made his work difficult because he had to use a telephone headset (although the
evidence was that Mr. Imran had not drawn this problem to the attention of his
employer).
[5]
On February 9, 2006, the Board decided that
while other factors may have contributed to his decision to leave his
employment, the principal reason that Mr. Imran had done so was to find a
better job in which his education and training could be put to use. The Board
held that while Mr. Imran left his job for what may be considered a good
reason, that was not sufficient to establish “just cause”, within the meaning
of paragraph 29(c) of the Act. In that respect, the Board found that Mr.
Imran had failed to show that he had no reasonable alternative to leaving his
employment. The Board upheld the position of the Employment Insurance
Commission that it would have been more reasonable for Mr. Imran to have looked
for a better job while he was still working. Accordingly, the Board held that
Mr. Imran was not compelled to leave his employment and denied his appeal.
[6]
The day after the Board rendered its decision,
Mr. Imran provided the Board with a medical certificate confirming his hearing
problem. Mr. Imran requested that the Board reconsider its decision, pursuant
to section 120 of the Act, based upon the “new” evidence as to his hearing
problem.
[7]
On March 9, 2006, the Board held that while the
medical certificate constituted “new facts”, that certificate was merely
corroborative of the evidence that had been presented by Mr. Imran in the first
hearing and, therefore, did not provide anything new in the sense that if it
had been known at the time of the initial hearing, it would have changed the
Board’s decision. Accordingly, the Board refused to reconsider its initial
decision.
[8]
Mr. Imran appealed to the Umpire. It is not
clear if the appeal was limited to the reconsideration decision of the Board or
if it also encompassed the initial decision of the Board. In any event, the
Umpire accepted the Board’s finding that Mr. Imran left his employment to find
an engineering position, but took issue with the Board’s decision that Mr.
Imran did not have just cause for so doing. In that regard, the Umpire held
that the test for just cause, for the purposes of paragraph 29(c) of the
Act, is whether:
… leaving the employment is what a
reasonable and prudent person would do in similar circumstances.
He then rejected
the proposition that a reasonable and prudent person in Mr. Imran’s
circumstances would have sought alternative employment while still working. The
Umpire accepted Mr. Imran’s evidence that he did not have a reasonable
alternative to leaving his employment in order to find an engineering job
because he would not have been able to achieve that goal had he continued to
work. According to the Umpire, this finding was supported by the fact that Mr.
Imran had obtained an engineering job after less than a month of full-time
intensive searching. On that basis, the Umpire held that Mr. Imran’s reasons
for leaving his employment constitute just cause.
[9]
For the reasons that follow, I am unable to
agree with the decision of the Umpire.
[10]
By framing the question as whether leaving the
employment is what a reasonable and prudent person would do in similar
circumstances, the Umpire applied the wrong test for just cause. The proper
test for just cause was described by Létourneau J.A. in Canada (Attorney General) v.
Laughland, 2003 FCA 129, at paragraphs 9 and 10:
This Court has clearly held that good cause
is not the same as just cause. In Tanguay v. Unemployment Insurance
Commission et al, (1986) 68 N.R. 154, at paragraph 10, Pratte J.A. wrote:
... it seems clear that the board decided
as it did because it was of the view that the applicants had acted reasonably
in leaving their employment. This indicates a complete misunderstanding of the
words “just cause” in s 41(1). In the context in which they are used these
words are not synonymous with “reason” or “motive”.
He went on, at paragraph 11, to quote Lord
Denning in Crewe and others v. Social Security Commission, [1982] 2 All
E.R. 745:
... it is not sufficient for him to prove
that he was quite reasonable in leaving his employment. Reasonableness may be “good
cause”, but it is not necessarily “just cause”.
[11]
The Umpire accepted Mr. Imran’s argument that he
could not have stayed in his employment and been successful in finding a better
job. On that basis, the Umpire concluded that Mr. Imran had no reasonable
alternative but to leave his employment. With respect, this conclusion
conflicts with the decision of this Court in Canada (Attorney General) v. Traynor, [1995]
F.C.J. No. 836, in which Marceau J.A., at paragraph 11, stated: “the letter, as
well as the philosophy and purpose, of the unemployment insurance scheme” does
not allow a claimant to leave her job “with the sole view of improving her
situation in the market place”. Moreover, this Court held in Laughland
at paragraph 12,
The Employment Insurance scheme is intended
to protect those persons with no other reasonable choice but to leave their
employment. Its purpose is not to provide employees in unstable employment, who
leave their employment without just cause, with benefits while they seek better
and more remunerative work.
[12]
Mr. Imran argues that because jobs in the field
of civil engineering were plentiful, he had reasonable assurance of another
employment in the immediate future, which constituted just cause for
voluntarily leaving his employment, pursuant to subparagraph 29(c)(vi)
of the Act. In Canada
(Attorney General) v. Bordage, 2005 FCA 155, Décary
J.A. expressed the view at paragraph 11 that:
Subparagraph 29(c)(vi) requires that
there be reasonable assurance of another employment in the immediate future. In
this case, none of the three requirements have been met… At the moment when he
himself chose to become unemployed, the respondent did not know if he would
have employment, he did not know what employment he would have with what
employer, he did not know at what moment in the future he would have employment
(see Canada (Attorney General) v. Sacrey, [2004] 1 F.C.R. 733; Canada
(Attorney General) v. Laughland, (2003) 301 N.R. 331 (F.C.A.); Canada
(Attorney General) v. Bédard (2004) 241 D.L.R. (4th) 763 (F.C.A.); Canada
v. Wall, (2002) 293 N.R. 338 (F.C.A.); Canada (Attorney General) v.
Lessard, 2002 FCA 469).
[13]
While Mr. Imran was successful in finding an
engineering job shortly after leaving his employment, at the moment when Mr.
Imran left his job it cannot be said that he knew what future employment he
would have or the identity of his future employer. As such, just cause for
leaving his employment on the basis provided in subparagraph 29(c)(vi)
of the Act has not been established.
[14]
Mr. Imran argues that his other stated reasons
for leaving his employment, namely the harassment from certain of the customers
of his employer, his desire to provide some care for his mother in Pakistan and his hearing problem should be
accepted as just cause for his cessation of employment. The determination of
Mr. Imran’s reason for leaving his employment is a question of fact that must
stand unless, as contemplated by paragraph 115(2)(c) of the Act, it was
made in a perverse or capricious manner or without regard to the evidence. None
of these other reasons was accepted by either the Board or the Umpire as the
basis for Mr. Imran’s decision to leave his employment and I am not persuaded that
there is any reason to interfere with their findings on that point.
[15]
For these reasons, I would allow the application
for judicial review, set aside the decision of the Umpire and refer the matter
back to the Chief Umpire, or his designate, for reconsideration and decision in
accordance with these reasons.
“C.
Michael Ryer”
“I
agree.
Marc Noël J.A.”
“I
agree.
K. Sharlow J.A.”
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