Date: 20060202
Docket: A-566-04
Citation: 2006 FCA 44
CORAM: LÉTOURNEAU
J.A.
NOËL J.A.
NADON
J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
MATHIEU LAMONDE
Respondent
REASONS FOR JUDGMENT
LÉTOURNEAU J.A.
ISSUE
[1]
Was the
umpire right to uphold the board of referees’ decision that the respondent was
eligible for employment insurance benefits? The claim for benefits was made in
the following circumstances.
FACTS AND PROCEDURAL BACKGROUND
[2]
The
respondent voluntarily took a year’s leave without pay to return to his
studies. The leave commenced on May 8, 2003. The respondent resumed his studies
at the Malbaie CEGEP. He left Québec and relocated to Charlevoix, where for the
summer he held part-time employment in a hairdressing salon and other
employment on the weekends as a waiter.
[3]
The board
of referees found that, in the circumstances, the respondent was justified in
leaving his employment, since he had the certainty of obtaining part-time
employment. The umpire approved this finding, adding a further justification,
namely that the respondent had a background of combining [translation] “work and study” that
enabled him to rebut the presumption of not being available for work which a
full-time return to study would entail.
ANALYSIS OF UMPIRE’S DECISION
[4]
In this
case, paragraph 29(c)(vi) and section 32 of the Employment Insurance
Act, S.C. 1996, c. 23 (the Act) are relevant. I set out below the
provisions necessary for understanding the matter:
|
29. For the purposes of sections 30
to 33,
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29. Pour l’application des articles 30
à 33 :
|
|
.
. .
|
[…]
|
|
(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 all the circumstances,
including any of the following:
|
c) le prestataire est fondé à quitter
volontairement son emploi ou à prendre congé si, compte tenu de toutes
les circonstances, notamment de celles qui sont énumérées ci-après, son
départ ou son congé constitue la seule solution raisonnable dans son cas :
|
|
(i)
sexual or other harassment,
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(i)
harcèlement, de nature sexuelle ou autre,
|
|
(ii)
obligation to accompany a spouse, common-law partner or dependent child to
another residence,
|
(ii)
nécessité d’accompagner son époux ou conjoint de fait ou un enfant à charge
vers un autre lieu de résidence,
|
|
(iii)
discrimination on a prohibited ground of discrimination within the meaning of
the Canadian Human Rights Act,
|
(iii)
discrimination fondée sur des motifs de distinction illicite, au sens de la Loi
canadienne sur les droits de la personne,
|
|
(iv)
working conditions that constitute a danger to health or safety,
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(iv)
conditions de travail dangereuses pour sa santé ou sa sécurité,
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(v)
obligation to care for a child or a member of the immediate family,
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(v)
nécessité de prendre soin d’un enfant ou d’un proche parent,
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(vi)
reasonable assurance of another employment in the immediate future,
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(vi)
assurance raisonnable d’un autre emploi dans un avenir immediate,
|
|
.
. .
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[…]
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(Emphasis
added.)
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32. (1) A claimant who voluntarily takes a period
of leave from their employment without just cause is not entitled to receive
benefits if, before or after the beginning of the period of leave,
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32. (1) Le prestataire qui prend volontairement
une période de congé sans justification n’est pas admissible au bénéfice des
prestations si, avant ou après le début de cette période :
|
|
(a)
the period of leave was authorized by the employer; and
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a) d’une part, cette période a été autorisée
par l’employeur;
|
|
(b)
the claimant and the employer agreed as to the day on which the claimant
would resume employment.
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b) d’autre part, l’employeur et lui ont convenu
d’une date de reprise d’emploi.
|
|
(2)
The disentitlement lasts until the claimant
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(2)
Cette inadmissibilité dure, selon le cas, jusqu’à :
|
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(a)
resumes the employment;
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a) la reprise de son emploi;
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(b)
loses or voluntarily leaves the employment; or
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b) la perte de son emploi ou son départ
volontaire;
|
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(c)
after the beginning of the period of leave, accumulates with another employer
the number of hours of insurable employment required by section 7
or 7.1 to qualify to receive benefits.
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c) le cumul chez un autre employeur, depuis le
début de la période de congé, du nombre d’heures d’emploi assurable exigé à
l’article 7 ou 7.1.
|
[5]
Under
section 32(1) of the Act, a claimant who voluntarily takes a period of leave
from employment without just cause is not entitled to receive benefits if the
period of leave was authorized by the employer and the claimant and employer
agreed as to the date on which the claimant would resume employment. That
section is applicable in this case, since the expected duration of the leave
was one year and the respondent and employer agreed that the respondent could
terminate his leave on 30 days’ notice and resume his duties. It will be
applicable if the other essential condition is met, namely if the period of
leave was taken without just cause.
[6]
It should
be noted that the length of the ineligibility is determined by subsection 32(2)
of the Act. There is no doubt that, at the time the claim for benefits was made
by the respondent in August 2003, none of the conditions required for
terminating the ineligibility period had been met. The respondent was thus
ineligible if his period of unpaid leave was not justified.
[7]
In the
case at bar, the respondent took leave in order to return to studies full time.
This Court’s case law on the point is well settled: except for programs
authorized by the Employment Commission (the Commission), a return to school
does not constitute justification under paragraph 29(c), and
accordingly for the purposes of sections 30 to 33 of the Act: see e.g. Attorney
General of Canada v. Bédard, 2004 FCA 21, at paragraph 8. The respondent
accordingly took leave without just cause within the meaning of section 32,
thus making that section applicable, unless of course he can rely on the
paragraph 29(c)(vi) justification accorded to him by the board of
referees and the umpire, that is, that he had the assurance of other employment
in the immediate future.
[8]
The
circumstances referred to in paragraph 29(c), which must be taken into
account in determining whether the taking of leave may be justified, are those
existing at the time the respondent took leave from his employment: see Canada
(Attorney General of Canada) v. Furey (1996), 201 N.R. 237, at paragraph 3.
They are thus to be assessed as of that time.
[9]
With respect,
I do not think that the assurance of part-time employment, which is not
sufficiently remunerative and requires reliance on employment insurance
benefits, is the type of employment which, under 29(c)(vi), provides a
claimant with a basis for taking leave to return to study and making the
employment insurance system bear the cost of doing so. In Canada (Attorney
General) v. Martel (1994), 175 N.R. 275, at paragraph 13, Desjardins J.A.
restated as follows the purpose of employment insurance, as well as the
principles applicable to those wishing to complete their training:
The primary
purpose of unemployment insurance is therefore to provide compensation for any
insured who involuntarily find himself unemployed, as this risk is
unfortunately all too frequent, and not to assist those who from personal
choice decide to continue their training. (See In the matter of the Unemployment
Insurance Act 1971 and In the matter of the claim for benefit by Richard
Hesson (CUB 17797) (January 29, 1990), at p. 4.) In that case, the
unemployed condition is created by the claimant of his own free will (“of the
employee’s own creation”). (See Crewe and others v. Social Security
Commissioner, [1982] 2 All E.R. 745, Donaldson J., as cited in Tanguay
v. Unemployment Insurance Commission (October 2, 1985), A-1458-84
(F.C.A.), per Pratte J.A., at p. 8.)
[10]
The board
of referees referred to the fact that, during the summer, the respondent held
not one but two part-time jobs, and it appeared to attach importance to this.
One of these jobs was on weekends. I note that Saturdays and Sundays are not
regarded as working days for the purpose of determining an individual’s
availability for work: see Attorney General of Canada v. Gagnon,
2005 FCA 321, and Canada (Attorney General) v. Primard, 2003 FCA
349.
[11]
It is true
that this Court has recognized that the presumption of unavailability resulting
from a full-time return to school is a rebuttable presumption. It may be
rebutted by proof of exceptional circumstances: Attorney General of Canada v.
Gagnon, 2005 FCA 321.
[12]
It is
established that a work history showing that the claimant held regular
employment while he was studying may make it possible to rebut the presumption;
by definition, however, a history refers to a chronology of past events. In
this case, the respondent had no history of combining work and study at the
time he took his leave without pay. Moreover, in Canada (Attorney General)
v. Loder, 2004 FCA 18, the Court noted that in Landry v. Canada
(1992), 152 N.R. 164 (F.C.A.), there was a work history stretching over several
years, not a short period of two months as invoked by Mr. Loder.
[13]
For these
reasons, the application for judicial review will be allowed without costs, as
the applicant has graciously waived them. The umpire’s decision will be quashed
and the matter referred back to the chief umpire or a person designated by him
to be again decided on the basis that
the Commission’s appeal from the decision of the board of
referees should be allowed and the respondent ruled ineligible for benefits
within the meaning of section 32 of the Act as of November 18, 2003.
“Gilles
Létourneau”
I
concur
Marc
Noël J.A.
I
concur
Nadon
J.A.
Certified
true translation
François
Brunet, LLB, BCL
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