Date: 20060126
Docket: A-552-03
Citation: 2006 FCA
40
CORAM: LÉTOURNEAU J.A.
NOËL J.A.
NADON J.A.
BETWEEN:
ATTORNEY
GENERAL OF CANADA
Applicant
and
MÉLANIE
GAUTHIER
Respondent
Hearing held at Québec, Quebec, on January 26, 2006.
Judgement delivered from the
bench at Québec, Quebec, on January 26,
2006.
REASONS FOR JUDGEMENT OF THE COURT BY: LÉTOURNEAU
J.A.
Date: 20060126
Docket: A-552-03
Citation: 2006 FCA 40
CORAM: LÉTOURNEAU
J.A.
NOËL
J.A.
NADON
J.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
and
MÉLANIE GAUTHIER
Respondent
REASONS FOR JUDGEMENT OF THE
COURT
(Delivered from the bench at Québec,
Quebec, on January 26, 2006.)
LÉTOURNEAU J.A.:
[1]
There is
no doubt that, in our view, on the basis of the evidence on record, the respondent
left her full-time employment to return to school. She reported being available
for work but she restricted her availability to weekends: see the respondent’s
statements at pages 24, 30, 31 and 32, as well as that of the employer at page
34 of the applicant’s record.
[2]
This
Court’s case law is both clear and consistent. Voluntarily leaving one’s
employment to return to school, except for programs of instruction authorized
by the Employment Insurance Commission, is a ground for disqualification from
Employment Insurance benefits under sections 29 and 30 of the Employment
Insurance Act, S.C. 1996, c. 23 (Act): see Attorney General of Canada v.
Bédard, 2004 FCA 21; Canada (Attorney General) v. Laughland, 2003
FCA 129; Canada (Attorney General) v. Lessard, 2002 FCA 469.
[3]
Likewise,
a person who unduly restricts his or her availability, or as in this case,
restricts it to weekends, is not entitled to benefits under section 18 of
the Act and section 32 of the Employment Insurance Regulation,
SOR/96-332. The latter provision excludes Saturdays and Sundays from the
definition of “working day” for the puposes of section 18:
|
32. For the purposes of section 18 of the Act, a
working day is any day of the week except Saturday and Sunday.
18. A claimant is not entitled to be paid
benefits for a working day in a benefit period for which the claimant fails
to prove that on that day the claimant was
(a)
capable of and available for work and unable to obtain suitable employment
(b)
unable to work because of a prescribed illness, injury or quarantine, and
that the claimant would otherwise be available for work; or
(c)
engaged in jury service.
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32. Pour l’application de l’article 18 de la Loi,
est un jour ouvrable chaque jour de la semaine sauf le samedi et le dimanche.
18. Le prestataire n’est pas admissible au
bénéfice des prestations pour tout jour ouvrable d’une période de prestations
pour lequel il ne peut prouver qu’il était, ce jour-là :
a) soit capable de travailler et
disponible à cette fin et incapable d’obtenir un emploi convenable;
b) soit incapable de travailler par suite d’une
maladie, d’une blessure ou d’une mise en quarantaine prévue par règlement et
aurait été sans cela disponible pour travailler;
c) soit en train d’exercer les fonctions de
juré.
|
[4]
For example,
Attorney General of Canada v. Gagnon, 2005 FCA 321 and Canada
(Attorney General) v. Primard, 2003 FCA 349 clearly illustrate the
interrelation between the two provisions and establish the principle of
unavailability in such circumstances.
[5]
We are aware
that cases such as the respondent’s elicit sympathy and that the Board of
Referees and the Umpire are strongly tempted to do away with the rule of law
and render a decision based on fairness, but they must be careful not to fall
into such a trap, as the claimant will have to bear the costs of an application
for judicial review which this Court will have no choice but to allow. Happily
for the respondent, the applicant graciously waived its right to costs.
[6]
For these
reasons, the application for judicial review will be allowed without costs, the
decision rendered by the Umpire will be quashed, and the case will be returned
to the Chief Umpire or his designate for redetermination, taking into
consideration that the respondent was both disqualified and disentitled from
receiving benefits.
“Gilles
Létourneau”
Certified
true translation
Michael
Palles
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A-552-03
STYLE OF CAUSE: ATTORNEY
GENERAL OF CANADA v.
MÉLANIE GAUTHIER
PLACE OF HEARING: Québec, Quebec
DATE OF HEARING: January 26, 2006
REASONS FOR JUDGEMENT
OF THE COURT BY: Létourneau J.A.
Noël J.A.
Nadon
J.A.
DELIVERED FROM THE
BENCH
BY: Létourneau J.A.
APPEARANCES:
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Pauline Leroux
|
FOR
THE APPLICANT
|
|
Denis Tremblay
|
FOR
THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
John H. Sims, Q.C.
Deputy
Attorney General of Canada
Montréal, Quebec
|
FOR THE APPLICANT
|
|
Tremblay and Tremblay
Matane,
Quebec
|
FOR THE RESPONDENT
|
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