Date:
20111116
Docket:
A-429-10
Citation:
2011 FCA 311
CORAM: EVANS
J.A.
PELLETIER
J.A.
LAYDEN-STEVENSON
J.A.
BETWEEN:
THE ATTORNEY
GENERAL OF CANADA
Applicant
and
ALEX GRAHAM
Respondent
REASONS FOR JUDGMENT
LAYDEN-STEVENSON
J.A.
[1]
For the reasons that follow, I would allow the
Crown’s application for judicial review of the decision of Umpire Stevenson
(the Umpire) upholding a decision of the Board of Referees (the Board).
[2]
The Employment Insurance Commission (the
Commission) denied the respondent, Alex Graham, employment insurance benefits
(benefits) under the Employment Insurance Act, S.C. 1996, c. 23 (the
Act). The Board allowed Mr. Graham’s appeal from the Commission’s decision. The
Umpire dismissed the Crown’s appeal. In the Umpire’s view, the Board applied
the correct legal test and considered all relevant circumstances. Its decision
therefore satisfied the reasonableness test in Dunsmuir v. New Brunswick,
2008 SCC 9 (Dunsmuir) and Canada (Citizenship and Immigration) v. Khosa, 2009
SCC 12 (Khosa).
[3]
While attending classes at Red River College, Mr. Graham worked part-time
at a Canadian Tire store in Winnipeg. When the school term was over in April, 2009, he moved to his
parents’ home in Minnedosa to find full-time summer employment and save on
living expenses. He had not secured employment in Minnedosa before leaving Winnipeg and he did not request a leave of
absence from Canadian Tire. Within a month, he found full-time employment in
Minnedosa. When he returned to Winnipeg as planned in August, 2009, he claimed benefits. The Commission
determined that because he voluntarily left his employment at Canadian Tire
without just cause, he had insufficient insurable hours from his employment in
Minnedosa to qualify for benefits. In December, 2009, Mr. Graham renewed his
claim. The Commission determined no benefits could be paid due to the previous
disqualification. Further, a new claim could not succeed for the same reason
the initial claim failed – insufficient hours of insurable employment after
leaving his Canadian Tire employment without just cause.
[4]
As stated earlier, the Board allowed Mr.
Graham’s appeal from the Commission’s decision. The Umpire found no fault with
the board’s decision that it was reasonable for Mr. Graham to leave his
employment at Canadian Tire.
[5]
The question of “just cause” for leaving
employment requires an examination of “whether having regard to all the
circumstances, on a balance of probabilities, the claimant had no reasonable
alternative to leaving the employment”: MacNeil v. Canada (Employment
Insurance Commission), 2009 FCA 306; Canada (Attorney General)
v. Imran, 2008 FCA 17. The claimant bears the burden of
establishing just cause: Canada (Attorney General) v. Patel, 2010 FCA 95.
[6]
The jurisprudence of this Court states that
remaining in employment until a new job is secured is, without more, generally
a reasonable alternative to taking a unilateral decision to quit a job: Canada
(Attorney General) v. Murugaiah, 2008 FCA 10; Canada (Attorney
General) v. Campeau, 2006 FCA 376. Further, a claimant’s desire
to improve his or her financial situation may constitute good cause, but it
does not constitute just cause: Canada (Attorney General) v. Richard, 2009 FCA 122; Canada (Attorney General) v.
Lapointe, 2009 FCA 147.
[7]
The Board acknowledged the legal test for “just
cause.” However, it did not examine the facts of Mr. Graham’s case in relation
to the above-noted principles of law. Rather than applying the no reasonable
alternative test, the Board considered whether Mr. Graham’s conduct was
reasonable in the circumstances and concluded that his choice qualified as
reasonable behaviour. On the basis of that finding, it determined he had just
cause for leaving his employment because it put him in a more favourable
economic situation enabling him to earn more money and incur fewer expenses.
[8]
The Umpire reviewed the factual context,
referred to an excerpt from the Board’s decision and concluded that the Board’s
decision was reasonable. Other than Dunsmuir and Khosa, the
Umpire did not refer to any jurisprudence.
[9]
In our view, the Umpire erred when he failed to
address the applicable law regarding just cause for leaving employment. In Canada
(Attorney General) v. Brace, 2008 FCA 118, this Court held
that an Umpire erred in failing to set out the proper legal test since the
facts must be viewed expressly through the lens of the proper definition. In
this case, the board erred in failing to assess the facts in accordance with
the law. The Umpire erred in failing to intervene.
[10]
Mr. Graham acknowledged that he wanted to be
home for the summer because it was cheaper to live there. He also acknowledged
that he could have continued working until he found other employment but did
not consider it feasible. While Mr. Graham may have had good personal cause to
leave his employment, he did not have just cause for leaving his employment,
within the meaning of the Act.
[11]
For these reasons, I would allow the application
for judicial review, set aside the Umpire’s decision and return the matter to
the Chief Umpire, or his designate, for redetermination on the basis that the
respondent did not have just cause for leaving his employment. The Crown did
not request costs and I would not award any.
"Carolyn
Layden-Stevenson"
“I
agree
John
M. Evans J.A.
“I
agree
J.D.
Denis Pelletier J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-429-10
APPEAL FROM A DECISION OF THE UMPIRE
RONALD C. STEVENSON DATED SEPTEMBER 24, 2010, DOCKET NO. CUB 75290
STYLE OF CAUSE: The
Attorney General of Canada v.
Alex Graham
PLACE OF HEARING: Winnipeg,
Manitoba
DATE OF HEARING: November 15, 2011
REASONS FOR JUDGMENT BY: LAYDEN-STEVENSON J.A.
CONCURRED IN BY: EVANS J.A.
PELLETIER J.A.
DATED: November 16, 2011
APPEARANCES:
|
Darcie Charlton
|
FOR THE APPLICANT
|
|
Alex Graham
|
SELF-REPRESENTED
|
SOLICITORS
OF RECORD:
|
Myles J. Kirvan
Deputy Attorney General of Canada
|
FOR THE APPLICANT
|
|
|
|
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