Date: 20050217
Docket: A-400-04
Citation: 2005 FCA 73
CORAM : RICHARD C.J.
DÉCARYJ.A.
LÉTOURNEAU J.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
and
DOMINIQUE CLOUTIER
Respondent
Hearing held at Montréal, Quebec on February 17, 2005.
Judgment from the bench at Montréal, Quebec on February 17, 2005.
REASONS FOR JUDGMENT OF THE COURT: LÉTOURNEAU J.A.
Date: 20050217
Docket: A-400-04
Citation: 2005 FCA 73
CORAM : RICHARD C.J.
DÉCARY J.A.
LÉTOURNEAU J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
DOMINIQUE CLOUTIER
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the bench at Montréal, Quebec on February 17, 2005)
LÉTOURNEAU J.A.
[1] The respondent claimed unemployment insurance benefits after voluntarily leaving her employment to accompany her spouse to another place of residence. Ordinarily, voluntarily leaving employment without just cause entails disqualification from receiving benefits.
[2] However, subparagraph 29(c)(ii) of the Employment Insurance Act, S.C. 1996, c. 23 (the Act), set out below, makes an exception to the concept of benefit disqualification mentioned in section 30 when the person leaving his or her employment does so as the result of an obligation to accompany a spouse or common-law partner:
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29. For the purposes of sections 30 to 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:
. . . . .
(ii) obligation to accompany a spouse, common-law partner or dependent child to another residence . . .
30. (1) A claimant is disqualified from receiving any benefits if the claimant lost any employment because of their misconduct or voluntarily left any employment without just cause, unless
. . . . .
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29. Pour l'application des articles 30 à 33 :
. . . . .
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 :
. . . .
(ii) nécessité d'accompagner son époux ou conjoint de fait ou un enfant à charge vers un autre lieu de résidence . . .
30. (1) Le prestataire est exclu du bénéfice des prestations s'il perd un emploi en raison de son inconduite ou s'il quitte volontairement un emploi sans justification, à moins, selon le cas :
. . . .
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The Act states that leaving in such circumstances is justified for purposes of entitlement to benefits, if of course the other conditions in the Act are met, including the condition of entitlement. On this point, the precedents in this Court are clear: see Canada (Attorney General) v. Faltermeier, 128 D.L.R. (4th) 481 (F.C.A.); Canada (Attorney General) v. White, 137 D.L.R. (4th) 566 (F.C.A.); and Donohue v. Canada (Attorney General), [1998] F.C.A. No. 935 (F.C.A.).
[3] In the case at bar, the respondent properly took advantage of this exception. However, she admitted before the board of referees that she was not available to work from September 29 to November 7, 2003, the latter being the date corresponding to her move: see board of referees' decision, applicant's record, at page 46. Consequently, the Commission denied her benefits for that period.
[4] On appeal from the Commission's decision, a majority of the board of referees, relying on the decision of umpire Goulard in CUB 57793, concluded that the respondent was entitled to benefits for that period. Specifically, the majority relied on the following statement by umpire Goulard:
The Employment Insurance Act stipulates that a claimant is entitled to employment insurance benefits if she has to quit her job to accompany her spouse. That provision must include a period when the claimant has to make the necessary moving arrangements, including looking for a job and child care.
In the appeal at bar, the umpire Gobeil said he was prepared to follow this statement by umpire Goulard. Consequently, he upheld the majority decision of the board of referees.
[5] With respect, and despite the sympathy we feel for the respondent because of the consequences resulting from her spouse's move, we consider that this application for judicial review should be allowed.
[6] The majority of the board of referees, the umpire in the case at bar and the umpire in CUB 57793 confused the concepts of disqualification and disentitlement contained in the Act.
[7] Section 18 of the Act indicates the conditions for entitlement to benefits:
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Disentitlement to Benefits
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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Inadmissibilité aux prestations
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.
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According to that section, availability is assessed by working day in a benefit period in which the claimant can prove that he or she was capable of and available for work on that day and unable to obtain suitable employment.
[8] For these reasons, the application for judicial review will be allowed, without costs in the circumstances since the respondent did not challenge the application and is not responsible for the confusion of concepts. The umpire's decision will be quashed and the matter referred back to the chief umpire or to a person appointed by him to be again decided on the basis that the Commission's appeal from the board of referees' decision should be allowed and the respondent is not entitled to benefits for the period from September 29 to November 7, 2003.
Certified true translation
J. Poirier, Translator
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A-400-04
APPLICATION FOR JUDICIAL REVIEW FROM DECISION CUB 61010 BY JUDGE ALBERT GOBEIL, IN HIS CAPACITY AS UMPIRE, ON APRIL 23, 2004
STYLE OF CAUSE: ATTORNEY GENERAL OF CANADA v.
DOMINIQUE CLOUTIER
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: February 17, 2005
REASONS FOR JUDGMENT OF THE COURT: RICHARD C.J.
DÉCARY J.A.
LÉTOURNEAU J.A.
DELIVERED FROM THE BENCH BY: LÉTOURNEAU J.A.
APPEARANCES:
Carole Bureau FOR THE APPLICANT
Dominique Cloutier FOR THE RESPONDENT
SOLICITORS OF RECORD:
Department of Justice Canada FOR THE APPLICANT
Montréal, Quebec
Mirabel, Quebec FOR THE RESPONDENT
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