Date: 20060614
Docket: A-562-04
Citation: 2006 FCA 219
CORAM
: DÉCARY J.A.
LÉTOURNEAU
J.A.
NOËL J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
VALÉRIE CÔTÉ
Respondent
REASONS FOR JUDGMENT
DÉCARY J.A.
[1]
Once
again, this is a case of the disqualification of a person from Employment
Insurance benefits on the ground that she left her employment to study.
[2]
The
respondent held employment as a student security officer at the Charlevoix
Casino while she was finishing her CEGEP courses in police technology in
Québec. She worked at the Casino every weekend.
[3]
On March 31, 2002, she advised her employer
that she had registered in a course at the École nationale de police
[Quebec police school] in Nicolet
from April 8 to July 12 and, because of the extent of travel
required, would only be able to work one weekend out of every three during this
period. She told her employer that she intended to continue her employment at
the Casino subsequently.
[4]
On April
1, 2002, the employer terminated the respondent’s employment, effective
April 8.
[5]
The
defendant completed her internship in Nicolet and held various positions in the
ensuing months. She was eventually laid off and in February 2003 she filed a
claim for Employment Insurance benefits with the Canada Employment Insurance
Commission (the “Commission”).
[6]
The
Commission was of the opinion the respondent voluntarily left her employment
without just cause, thereby giving rise to her disqualification under
section 30 of the Employment Insurance Act. In accordance with
subsection 30(5) of the Act, the insurable hours from her employment at
the Casino could no longer be counted for the purposes of calculating the
number of hours required to establish her entitlement to benefits.
[7]
The Board
of Referees allowed the respondent’s appeal. The Board was of the opinion that,
under the terms of the student employment contract at the Charlevoix Casino,
studies had priority, and in this case [translation]
“it
was the employer who took the initiative of terminating the employment”. The
Board concluded that the respondent did not voluntarily leave her employment.
[8]
The Umpire
upheld the decision of the Board of Referees, as follows:
On
examining the file in its entirety, it appears unthinkable that the employer,
which had already had Ms Côté in its employment for some time and seemed
satisfied with her work, would use her student status as a reason to dismiss
her, if the job in question was a student job.
In
fact, the employer had to expect that, for a CEGEP police science student, the
next step would be the École nationale de police du Québec, which is the only
employment opportunity for students completing their college diploma in police
science.
Ms
Côté remained available on weekends, and it was the employer who decided to
sever their business ties.
[9]
In my
opinion, it was a mistake to have focused debate on the question of who, the
employer or the employee, had taken the initiative. It seems to me that there
was a misunderstanding of the legal concept known as “voluntary leaving”.
Section 30 of the Employment Insurance Act aims to prevent an
employee from deciding to voluntarily leave his or her employment without just
cause. An employee who advises his or her employer that he or she is less
available than previously is for all intents and purposes asking the employer
to terminate the employment contract if the employer cannot accommodate the
employee’s reduced availability. Dismissal is therefore only the sanction of
the real cause of the loss of employment, that is, the employee’s decision to
continue his or her studies under conditions which do not allow him or her to
be available any longer. Dismissal is only the logical consequence of the
employee’s deliberate act and cannot erase the fact that there was first and
foremost voluntary leaving on the part of the employee.
[10]
This
voluntary leaving may be justified in the manner authorized by
paragraph 29(c) of the Act. It is trite law that leaving one’
employment to pursue studies not authorized by the Commission does not
constitute “just cause” within the meaning of the Act (see Canada (Attorney General) v. Lessard, (2002) 300 N.R. 354
(F.C.A.); Canada (Attorney General) v. Bédard, 2004 FCA 21; Canada (Attorney General) v. Bois, 2001 FCA 175).
[11]
The
respondent’s case inspires sympathy, as does any case of a student who works on
a part‑time basis to pay for his or her studies. As soon as circumstances
oblige this student to leave her part‑time employment to continue her
studies, she loses the benefit of accumulated hours of work in that employment.
However, this Court has established the principle that it is of the essence of
the Employment Insurance program “that the assured
shall not deliberately create or increase the risk” (Tanguay v. Unemployment Insurance
Commission, (1985), 10 C.C.E.L. 239 (F.C.A.) at page 244; Smith
v. Canada (Attorney General) (C.A.), [1998] 1 F.C. 529, at
page 537). I do not think there is a difference in principle between
returning to or undertaking studies and continuing them. The insured student
who leaves part‑time employment to better complete his or her studies
deliberately creates the risk. The objective is certainly laudable, but as
Pratte J. underlined in Tanguay at page 243, the words “just cause”
are not synonymous with “reasons” or “motive”, and I would add, with
“objective”. Moreover, I note that all types of “just cause” set out by
Parliament in paragraph 29(c) of the Act, except for those
specified in subparagraphs (vi) (“reasonable assurance of another employment in
the immediate future”) and (xiv) (“any other reasonable circumstances that are
prescribed”) assume third‑party intervention. I am aware of the fact that
the list is not exhaustive, but I would hesitate to add by jurisprudential
means a “just cause” that would be as within the control of an insured person
as returning to studies or continuing them. I would prefer to leave this
decision to Parliament or the Governor in Council.
[12]
For these
reasons, I would allow the Attorney General of Canada’s application for judicial
review, set aside the Umpire’s decision and refer the matter to the Chief
Umpire or his delegate for redetermination, taking into consideration the fact
that the respondent must be disqualified from Employment Insurance benefits
because she voluntarily left from her employment without just cause. There will
be no award as to costs.
Robert Décary
“I
concur.
Gilles
Létourneau, J.A.”
“I
concur.
Marc
Noël, J.A.”
Certified
true translation
Michael
Palles
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