Date: 20110125
Docket: A-271-10
Citation: 2011 FCA 26
CORAM: BLAIS
C.J.
EVANS
J.A.
STRATAS
J.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
and
KUM CHAI YEO
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered from the Bench at Toronto, Ontario, on January 25, 2011)
EVANS J.A.
[1]
This is an
application for judicial review by the Attorney General of Canada to set aside
a decision of an Umpire (CUB 74709) dismissing an appeal from a decision of a
board of referees, dated June 30, 2009. In that decision, the board allowed an
appeal by Kum Chai Yeo from the Employment Insurance Commission’s rejection of
his claim for unemployment insurance benefits.
[2]
The board
of referees held that Mr Yeo had just cause for voluntarily leaving his
employment because the travel time involved in getting to and from work prevented
him from dropping off his children at school in the morning and picking them up
in the evening to take them to after-school activities.
[3]
Mr Yeo, an
accountant, testified that under the court-sanctioned terms of his divorce, he
has shared custody of his two children, who spend one weekday a week with him,
and most weekends. He stated that he had tried working flexible hours, but that
did not enable him to meet his child-care commitment; his employer had no
branch closer to Mr Yeo’s home. He also said that he had no relatives whom he
could ask to help out with the children.
[4]
As for
seeking more conveniently located employment while still working, Mr Yeo said
that his job search was limited by the fact that it was difficult for him to
attend job interviews during working hours. Finally, Mr Yeo stated that he quit
his employment expecting, on the basis of his previous experience, to quickly
find a job closer to home. However, because of the downturn in the economy, his
job search took longer than he anticipated.
[5]
A person
who voluntarily leaves their employment is not entitled to unemployment
insurance benefits unless they left for “just cause”: Employment Insurance
Act, S.C. 1996, c. 23: subsection 30(1). In its reasons, the board set out
the provision of the Act, paragraph 29(c)(v), that is directly relevant to the
present proceeding.
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29(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:
(v) obligation to care for a child or a
member of the immediate family,
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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 :
(v) nécessité de prendre soin d’un enfant ou
d’un proche parent,
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[6]
After
accepting Mr Yeo’s testimony, the board concluded that “he made the decision to
quit only after trying his best to find another solution.”
[7]
On appeal,
the Umpire held that, although not making a finding that Mr Yeo had “no
reasonable alternative to leaving or taking leave”, the board’s statement that
he had tried his best amounted to the same thing. It therefore committed no
error of law. He concluded that the board had considered all the evidence and
that its decision could not be said to have been unreasonable.
[8]
We are not
satisfied that, having correctly set out the legal test for determining what
constitutes “just cause” for leaving employment, the board promptly forgot it
three paragraphs later and erroneously applied another test. Like the Umpire,
we are prepared to give the board the benefit of the doubt on this question. On
reading the board’s reasons as a whole, we are not satisfied that the board’s
statement at the end of its reasons that Mr Yeo had done his best to find
another solution, demonstrated that, having earlier set out the correct test,
it had in fact applied another, erroneous legal test.
[9]
However,
unlike the Umpire, we are of the view that the board’s application of the legal
test of “just cause” was unreasonable and that the decision must be set aside.
[10]
Claimants
for unemployment insurance benefits have the burden of proving their
entitlement. Mr Yeo therefore had to adduce evidence to prove on a balance of
probabilities that, in all the circumstances, he had no reasonable alternative
other than to leave his employment, in order to discharge his parental
responsibilities. In our view, and giving due deference to the board, Mr Yeo
cannot reasonably be said to have done this.
[11]
He did not
show that he was unable to hire someone for the hours necessary to meet the
children and take them to their after-school activities. Nor had he explored
with his employer the possibility of a temporary leave of absence to look for
another job, or sought some accommodation from his employer that would have
enabled him to attend job interviews while still employed. Compare Canada (Attorney General) v. Patel, 2010 FCA 95.
[12]
For these
reasons, the application for judicial review will be granted, the Umpire’s
decision set aside, and the matter remitted to the Chief Umpire or his
delegate, on the basis that Mr. Yeo did not have just cause to leave his
employment.
“John
M. Evans”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-271-10
(AN APPLICATION FOR JUDICIAL REVIEW OF A
DECISION OF MR. JUSTICE GERALD T. G. SENIUK, AS UMPIRE (E.I. ACT), DATED JUNE
18, 2010, AS CUB 74709.)
STYLE OF CAUSE: ATTORNEY GENERAL OF CANADA v. KUM CHAI YEO
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JANUARY 25, 2011
REASONS FOR JUDGMENT OF THE COURT BY: BLAIS C.J.
EVANS J.A.
STRATAS
J.A.
DELIVERED FROM THE BENCH BY: EVANS J.A.
APPEARANCES:
|
RINA M. LI
|
FOR THE APPLICANT
|
|
KUM CHAI YEO
|
FOR THE
RESPONDENT,
ON HIS OWN
BEHALF
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SOLICITORS OF RECORD:
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MYLES J. KIRVAN
DEPUTY ATTORNEY GENERAL OF CANADA
|
FOR THE
APPLICANT
|
|
|
FOR THE
RESPONDENT,
ON HIS OWN
BEHALF
|
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