Date: 20110510
Docket: A-385-10
Citation:
2011 FCA 161
CORAM: LÉTOURNEAU J.A.
PELLETIER
J.A.
TRUDEL
J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
DENISE GAGNÉ
Respondent
Heard at Québec, Quebec, on May 10, 2011.
Judgment delivered from the Bench at Québec, Quebec, on May 10,
2011.
REASONS FOR
JUDGMENT OF THE COURT BY: LÉTOURNEAU J.A.
Date: 20110510
Docket: A-385-10
Citation:
2011 FCA 161
CORAM: LÉTOURNEAU J.A.
PELLETIER J.A.
TRUDEL J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
DENISE GAGNÉ
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Québec, Quebec, on May 10, 2011)
LÉTOURNEAU J.A.
[1]
It is trite law that a worker who leaves his or
her employment when there exists a reasonable alternative is disqualified from
receiving Employment Insurance benefits pursuant to subsection 30(1) of
the Employment Insurance Act, S.C. 1966, c. 23.
[2]
In this case, the Board of Referees erred as to
the issue. In CUB 75133, the Umpire upheld the decision of the Board of
Referees, despite the fact that the evidence showed that the respondent had
asked her employer if she could leave her employment three weeks before the end
of her contract in order to organize a trip she planned to take.
[3]
The Board of Referees based its decision solely
on the respondent’s testimony at the hearing and disregarded, without providing
any reasons for doing so, the respondent’s initial, spontaneous statements
indicating that she had left voluntarily without just cause. In disregarding
the respondent’s initial, spontaneous statements, the Board of Referees
committed an error of law that the Umpire should have corrected but failed to correct:
see Canada (Attorney General) v. Renaud, 2007 FCA 328; and Boucher v.
Canada (Attorney
General), [1996] F.C.J. No. 1378.
[4]
Moreover, the Employment Insurance Commission
(the Commission) alleged that the respondent had not been available for work during
the three-week period during which she was organizing her trip, therefore
disentitling her to benefits pursuant to paragraph 18(a) and
section 33 of the Act.
|
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;
…
33. (1) A
claimant is not entitled to receive benefits if the claimant loses an
employment because of their misconduct or voluntarily leaves without just
cause within three weeks before
(a) the expiration of a term of
employment, in the case of employment for a set term; or
(b) the day on which the claimant
is to be laid off according to a notice already given by the employer to the
claimant.
(2) The disentitlement lasts until the
expiration of the term of employment or the day on which the claimant was to
be laid off.
|
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;
[…]
33. (1) Le
prestataire qui perd son emploi en raison de son inconduite ou qui le quitte
volontairement sans justification n’est pas admissible au bénéfice des
prestations si cet événement se produit dans les trois semaines précédant :
a) la fin
de son contrat de travail, si celui-ci est à durée déterminée;
b) la date
de son licenciement, dans le cas où son employeur lui a déjà donné le préavis
correspondant.
(2) Cette inadmissibilité dure, selon le
cas, jusqu’à la fin de son contrat ou jusqu’au jour prévu pour son
licenciement.
|
[5]
The Umpire failed to consider these two
provisions. Had he done so, he could not have reached the conclusion that he
did.
[6]
The Board of Referees also erroneously took into
account the fact that the respondent had taken steps upon returning from her
trip to find employment, when the period at issue regarding her lack of
availability consisted of the three weeks prior to her departure on the trip
that she had organized. It referred to facts arising after the period at issue
to establish availability that did not exist during that period. This is an
error of law.
[7]
By failing to intervene, the Umpire endorsed the
Board of Referees’ error. Had he recognized it and applied the correct test for
determining the respondent’s availability, he would have had no choice but to
find that, on her own admission, she was not available during the period at
issue, from October 16, 2008, to November 7, 2008.
[8]
For these reasons, the application for judicial
review will be allowed without costs, since the respondent did not contest it.
The Umpire’s decision shall be set aside and the matter remitted to the Chief
Umpire, or an Umpire that he designates, for a new determination on the basis
that, for the period at issue, from October 16, 2008, to November 7, 2008,
the respondent did not have just cause for voluntarily leaving her employment
within the meaning of sections 29, 30 and 33 of the Act and was not
available within the meaning of section 18 of the Act.
“Gilles Létourneau”
Certified true
translation
Francie Gow, BCL,
LLB
Federal
Court of Appeal
SOLICITORS
OF RECORD
Docket: A-385-10
STYLE
OF CAUSE: THE ATTORNEY
GENERAL OF CANADA
v. DENISE GAGNÉ
PLACE OF HEARING: Québec,
Quebec
DATE OF HEARING: May
10, 2011
REASONS FOR JUDGMENT LÉTOURNEAU
J.A.
OF THE COURT BY: PELLETIER
J.A.
TRUDEL J.A.
DELIVERED FROM THE BENCH BY: LÉTOURNEAU
J.A.
APPEARANCES:
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Chantal Labonté
|
FOR THE APPLICANT
|
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SOLICITORS OF RECORD:
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Myles J. Kirvan
Deputy Attorney General of Canada
|
FOR THE APPLICANT
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