Date: 20110511
Docket: A-262-10
Citation:
2011 FCA 163
CORAM: LÉTOURNEAU J.A.
PELLETIER J.A.
TRUDEL J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
LINE LANGEVIN
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Québec, Quebec, on May 11, 2011)
TRUDEL J.A.
[1]
This is an application for judicial review of a
decision by Umpire Polak dated May 21, 2010 (CUB 74588). The Umpire
dismissed the Commission’s appeal of a decision rendered by the Board of Referees
on September 2, 2009, in which it reversed the Commission’s decision refusing
to grant Employment Insurance benefits to Ms. Langevin because she had
left her employment voluntarily without just cause. Ms. Langevin appeared
but did not file a memorandum of fact and law. However, during the hearing
before this Court, she clearly explained her position, specifying that in
leaving her employment, her intention was not to claim benefits, but merely to
notify the Commission that her employment had ceased. Given the Commission’s
response, all she wanted was to recover the document certifying the termination
of her employment in case she needed it later. It appears that since beginning
her new job, the respondent has accumulated enough hours to render the events
related to the termination of her employment irrelevant to any subsequent claim
for benefits that she might make.
[2]
That said, and although the decision of this
Court will not change anything for the respondent, we all agree that the Umpire
committed errors of law warranting our intervention.
[3]
The issue is whether the Board of Referees erred
in law in determining that Ms. Langevin had just cause to leave her
employment and that there was no reasonable alternative to her departure.
[4]
The Board of Referees accepted
Ms. Langevin’s arguments and held that she was justified in leaving her
employment for the following reasons (see page 4 of decision under
appeal):
1.
The new employment was in her field of study;
2.
The new employment was better paid;
3.
The on-call registry is the sole means of entry
into the healthcare sector; and
4.
Ms. Langevin had, at the time of her
hearing before the Board, accumulated 350 hours of employment, thereby
demonstrating that the CSSS requires her services on a regular basis.
[5]
However commendable the claimant’s intentions
may have been, the Board erred in relying on them to reverse the Commission’s
decision. This Court has reiterated on several occasions that leaving one’s
employment to improve one’s situation does not constitute just cause within the
meaning of paragraph 29(c) of the Employment Insurance Act, S.C.
1996, c. 23 (the Act) (Attorney General of Canada v. Richard, 2009 FCA
122, at paragraphs 13 and 14).
[6]
In Canada (Attorney General) v. Langlois,
2008 FCA 18, this
Court wrote the following at paragraph 31 of its reasons for judgment:
While it is legitimate for a worker to want to improve his life by
changing employers or the nature of his work, he cannot expect those who
contribute to the employment insurance fund to bear the cost of that legitimate
desire. This applies equally to those who decide to go
back to school to further their education or start a business and to those who
simply wish to earn more money.
[7]
Furthermore, by accepting on-call employment,
the claimant knew that she was running the risk of finding herself unemployed
between calls. The risk inherent in this choice cannot be assumed by the
Employment Insurance fund either (ibidem, at paragraph 12).
[8]
Finally, the Board of Referees and the Umpire
both attributed weight to the fact that the claimant had received several
hours’ worth of work following her claim for benefits, thereby justifying her
decision to accept a new on-call position. This also constitutes an error.
[9]
The circumstances referred to in paragraph 29(c)
are those that existed at the time the respondent left her employment (Canada
(Attorney General) v. Furey, [1996] F.C.J. No. 971, at paragraph 3 ;
Canada (Attorney General) v. Lamonde, 2006 FCA 44, at paragraph 8).
Therefore, the Board of Referees erred in basing its decision on events
following the claim for benefits.
[10]
The application for judicial review will be
allowed without costs. The Umpire’s decision, indexed as CUB 74588, will 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 the Commission’s appeal
must be allowed, the Board of Referees’ decision set aside and the Commission’s
decision restored.
“Johanne Trudel”
Certified true
translation
Francie Gow, BLC,
LLB