Canada (Attorney General) v. Bordage, 2005 FCA 155

Date: 20050502

Docket: A-506-04

Citation: 2005 FCA 155

CORAM:        DÉCARY J.A.

LÉTOURNEAU J.A.

PELLETIER J.A.

BETWEEN:

                                             ATTORNEY GENERAL OF CANADA

                                                                                                                                            Applicant

                                                                           and

                                                             EDDIE BORDAGE

                                                                                                                                        Respondent

                                       Hearing held at Montréal, Quebec, on May 2, 2005.

                      Judgment delivered from the bench at Montréal, Quebec, on May 2, 2005.

REASONS FOR JUDGMENT OF THE COURT:                                                        DÉCARY J.A.

Date: 20050502

Docket: A-506-04

Citation: 2005 FCA 155

CORAM:        DÉCARY J.A.

LÉTOURNEAU J.A.

PELLETIER J.A.

BETWEEN:

                                             ATTORNEY GENERAL OF CANADA

                                                                                                                                            Applicant

                                                                           and

                                                             EDDIE BORDAGE

                                                                                                                                        Respondent

                                     REASONS FOR JUDGMENT OF THE COURT

                        (Delivered from the bench at Montréal, Quebec, on May 2, 2005)

DÉCARY J.A.

[1]                In 2001, the respondent, a native of the North Shore (province of Quebec), obtained a certificate in drilling and blasting following a course offered at Sherbrooke. He had been referred there by the Employment Insurance Commission. He then found employment in New Brunswick on July 24, 2002, in an field other than drilling and blasting.

[2]                In January 2003, the Commission de la Construction du Québec invited interested parties to apply to take the course [TRANSLATION] "Site, equipment and organizations". This course made it possible to obtain a certificate conferring the right to carry on an occupation at Quebec construction sites. There were a specific number of places for the North Shore region, five of which were reserved for individuals certified in drilling and blasting (Applicant's Record, page 47).

[3]                Wanting to return to Quebec, the respondent applied. On February 11, 2003, the Commission de la Construction du Québec informed him that his application had been accepted (Applicant's Record, page 23). The 60-hour long course, was supposed to take place in March, April, May and June 2003.

[4]                On February 21, 2003, the respondent, who had obtained permanent status, left his employment in New Brunswick.

[5]                On March 17, 2003, the respondent applied for unemployment benefits because he had left his employment for the following reasons: he had studied drilling and blasting; the employment that he had in New Brunswick was not in his field; he had been accepted for the training course; he would then be returning to his region, the North Shore (Applicant's Record, page 24). He said that in his opinion, obtaining the "certificate of qualifications" guaranteed him [TRANSLATION] "employment in my field in the medium-term and better conditions".

[6]                On March 19, 2003, during an interview with a representative of the Commission, he clearly indicated that he wanted to return to Quebec and to his region, that he was then looking for work, that he just moved and that he had not yet [TRANSLATION] "contacted any employer" (Applicant's Record, page 27).

[7]                On March 19, 2003, the Commission advised him that he was disqualified from receiving benefits as of February 23, 2003, on the grounds that he had voluntarily left his employment and that it was not a case of there being no reasonable alternative.

[8]                On April 16, 2003, the Board of Referees overturned the Commission's decision, stating that in its opinion the course (which did not begin until the following April 22 and was supposed to end on May 2) [TRANSLATION] "would open up the job market for him" and that [TRANSLATION] "considering his training path . . . he had reasonable assurance of another employment" within the meaning of subparagraph 29(c)(vi) of the Employment Insurance Act.

[9]                On August 12, 2004, the Umpire confirmed the Board of Referees' decision as follows:

. . . By leaving his employment to take a course required to obtain the construction certificate, the claimant certainly exposed himself to a risk of unemployment; however, this was a reasonable risk, given the specific requirements of the construction sector in Quebec, namely, the requirement for a certificate of qualifications to work on construction sites. The claimant had already invested a good deal of money in his drilling and blasting course, and the next logical step was to take the course that would complete his training and provide him with the opportunity to work on construction sites in Quebec, his home province.

In my opinion, the fact that the claimant completed a 60-hour course enabling him to obtain a certificate of qualifications can be linked to what Donaldson J. (quoted by Pratte J. in Tanguay, supra) described as "taking steps which may reasonably be expected to lead to such employment as to make it right and reasonable to leave his employment."

This is clearly a borderline case, and the Commission was unable to convince the Umpire that the Board of Referees erred in fact and in law, or that its decision was unreasonable.

While the case law seems to greatly reduce the possibility of leaving one's employment for a reason similar to Mr. Bordage's, the decision in Lessard, A-249-01, must be given consideration here, in that Mr. Bordage had reasonable assurance of another employment in the immediate future: five drilling and blasting jobs were available on the North Shore, he was the only candidate, and all he needed was the 60-hour course which did not require an examination upon completion.

                                                                                                                  [CUB 61395, p. 3]

[10]            The Umpire and, before him, the Board of Referees, erred in such a way that we must intervene.

[11]            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. The offer made by the Commission de la Construction du Québec's is an offer for a course, not an offer of employment. 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).

[12]            The application for judicial review shall be allowed, but without costs given that the respondent did not contest at all; the decision by the Umpire will be set aside and the matter shall be referred to the Chief Umpire or to an umpire designated by him for redetermination, on the basis that the claimant left his employment without just cause.

                                                                                                                               "Robert Décary"         

                                                                                                                                                      J.A.

Certified true translation.

Kelley A. Harvey, BCL, LLB

                                                  FEDERAL COURT OF APPEAL

                                                      SOLICITORS OF RECORD

DOCKET:                                          A-506-04

STYLE OF CAUSE:                          ATTORNEY GENERAL OF CANADA

                                                                                                                                            Applicant

and

EDDIE BORDAGE

                                                                                                                                        Respondent

PLACE OF HEARING:                                                         Montréal, Quebec

DATE OF HEARING:                                                           May 2, 2005

REASONS FOR JUDGMENT BY THE COURT:             DÉCARY J.A.

LÉTOURNEAU J.A.

PELLETIER J.A.

DELIVERED FROM THE BENCH BY:                             DÉCARY J.A.

APPEARANCES:

SOLICITORS OF RECORD: