Date: 20030311
Docket: A-76-02
Neutral citation: 2003 FCA 129
CORAM: LÉTOURNEAU J.A.
ROTHSTEIN J.A.
SHARLOW J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
- and -
MARK LAUGHLAND
Respondent
Heard at Toronto, Ontario, on Tuesday, March 11, 2003.
Judgment delivered from the Bench at Toronto, Ontario, on Tuesday, March 11, 2003.
REASONS FOR JUDGMENT OF THE COURT BY: LÉTOURNEAU J.A.
Date: 20030311
Docket: A-76-02
Neutral citation: 2003 FCA 129
CORAM: LÉTOURNEAU J.A.
ROTHSTEIN J.A.
SHARLOW J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
- and -
MARK LAUGHLAND
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario
on Tuesday, March 11, 2003.)
LÉTOURNEAU J.A.
[1] This is an application for judicial review against a decision of an Umpire rendered on December 20, 2001. By his decision, the Umpire dismissed the applicant's appeal against a decision of a Board of Referees (Board). The essence of the Board's decision which the Umpire approved can be found in the following passage at p. 104 of the Applicant's Record:
... the letters from Michael Brown and Hugh Chapman show clearly that the employer was clearly stating that he was intending to lay Mr. Laughland off, and in fact was openly discussing closing his business entirely. While it was not directly a layoff, it is clear that a layoff was imminent. By openly discussing his intentions, he was placing undue pressure on his employees to leave their employment, and a number did in fact leave.
The Board finds that a prudent person, faced with this situation, would consult with an employment counsellor at the Human Resources Development Commission, which he did. If a training course presents itself that offers reasonable reassurance of a full-time job at the end of it, with good pay, it is reasonable to take it.
[Emphasis added]
[2] The facts that gave rise to this litigation can conveniently be summarized in this way.
[3] The respondent worked as a labourer from October 1, 1999 to November 20, 2000. By letter dated October 18, 2000, he was notified by NAV Canada that he had been accepted into the Flight Service Specialist Training Program. The program involved a five-month course from December 4, 2000 until May 4, 2001.
[4] On December 1, 2000, the respondent applied for unemployment insurance benefits indicating that he left his employment because he had "an opportunity to get a much better job" but that he first "must attend a training institute". The Canada Employment Insurance Commission (Commission) denied the respondent's claim for benefits on basically two grounds. First, he had left his employment without just cause pursuant to paragraph 29(c) of the Employment Insurance Act S.C. 1996, c. 23 (Act) when there was available to him a reasonable alternative for leaving. Second, he had failed as of December 4, 2000 to prove his availability for work as he was attending a training course.
[5] As it appears from the passage previously quoted from the Board, the latter held that the respondent showed just cause for leaving his employment because there was undue pressure by the employer on the respondent to leave his employment. The Board relied upon subparagraph 29(c)(xiii) of the Act.
[6] At p. 3 of his decision, the Umpire endorsed the Board's decision as follows:
The Board had reviewed the evidence regarding the possibility and likelihood that the claimant would be dismissed from his previous employment. They concluded that the claimant had good reasons to believe he was facing termination of his employment. The Board had also, based on the evidence which they summarized, concluded that acceptance in the NAV Canada training program could only lead to a well paying position, that the claimant had therefore shown just cause for leaving his employment and that he did not have to show his availability for other employment while attending the NAV Canada training program as this was paramount to a secured employment.
[Emphasis added]
[7] With respect, we believe that both the Board and the Umpire misapplied the test applicable to the facts of this case.
[8] In determining whether the respondent had just cause to leave his employment, paragraph 29(c) requires the Board to determine whether he had "no reasonable alternative to leaving, having regard to all the circumstances". Undue pressure by the employer to leave was in this case the only relevant consideration. Therefore, the pressure had to be such that it left the respondent with no reasonable alternative but to leave.
[9] Obviously, the Board failed to ask itself the proper question. The question was not whether the employer's undue pressure made it reasonable for the respondent to do what he did, but rather whether leaving the employment was the only reasonable course of action open to him, having regard to all the circumstances. This Court has clearly held that good cause is not the same as just cause. In Tanguay v. Unemployment Insurance Commission et al, (1986) 68 N.R. 154, at paragraph 10, Pratte J.A. wrote:
... it seems clear that the board decided as it did because it was of the view that the applicants had acted reasonably in leaving their employment. This indicates a complete misunderstanding of the words "just cause" in s 41(1). In the context in which they are used these words are not synonymous with "reason" or "motive".
[10] He went on, at paragraph 11, to quote Lord Denning in Crewe and others v. Social Security Commission, [1982] 2 All E.R. 745:
... it is not sufficient for him to prove that he was quite reasonable in leaving his employment. Reasonableness may be "good cause", but it is not necessarily "just cause".
[11] As for the Umpire, he did not canvass at all the Board's consideration of "undue pressure" as a consideration for just cause. He also confused good cause with just cause. Nor did he question the absence of a discussion of a reasonable alternative to leaving employment as required by paragraph 29(c). Instead, he proceeded to address a consideration mentioned in subparagraph 29(c)(vi), namely whether the respondent had a reasonable assurance of another employment in the immediate future. This consideration has no application when the prospect of obtaining employment is contingent upon the completion of a training course as this is not "assurance of another employment in the immediate future". In Canada (Attorney General) v. Lessard, 2002 FCA 469, our colleague Décary J.A., at paragraph 19, stated:
It is accordingly clear that employment which only comes into being on the expiry of a course which has not yet been started and lasts thirteen weeks is not employment "in the immediate future".
[12] We are satisfied that the Board and the Umpire could not have found that the respondent had a just cause to leave his employment if they had applied the proper test. Nothing in the evidence suggests that the respondent could not have stayed in his employment until termination while at the same time looking for another job. Indeed, once he left, another person was hired to fill his position: See Applicant's Record, p. 103. Moreover, leaving voluntarily employment to take a training course not authorized by the Commission is not "just cause" within the meaning of section 29: Attorney General of Canada v. Martel, A-1691-92, September 28, 1994 (F.C.A.); Canada (Attorney General) v. Shaw 2002 FCA 325. The Employment Insurance scheme is intended to protect those persons with no other reasonable choice but to leave their employment. Its purpose is not to provide employees in unstable employment, who leave their employment without just cause, with benefits while they seek better and more remunerative work.
[13] For these reasons, the application for judicial review will be allowed, the decision of the Umpire will be set aside and the matter will be referred back to the Chief Umpire, or a person that he designates, for a new determination on the basis that the Commission's appeal before the Umpire should be granted.
"Gilles Létourneau"
J.A.
FEDERAL COURT OF CANADA
APPEAL DIVISION
Names of Counsel and Solicitors of Record
DOCKET: A-76-02
STYLE OF CAUSE: ATTORNEY GENERAL OF CANADA
Applicant
- and -
MARK LAUGHLAND
Respondent
DATE OF HEARING: TUESDAY, MARCH 11, 2003
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT
OF THE COURT BY: LÉTOURNEAU J.A.
DATED: TUESDAY, MARCH 11, 2003
JUDGMENT DELIVERED FROM THE BENCH ON TUESDAY, MARCH 11, 2003.
APPEARANCES BY: Ms. Sharon McGovern
For the Applicant
NO APPEARANCE
For the Respondent, on his own behalf
SOLICITORS OF RECORD: Morris Rosenberg
Deputy Attorney General of Canada
For the Applicant
Mark Laughland
Timmins, Ontario
For the Respondent, on his own behalf
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