Date: 20090421
Docket: A-518-08
Citation: 2009 FCA
122
CORAM: LÉTOURNEAU
J.A.
PELLETIER
J.A.
TRUDEL J.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
and
GABRIEL RICHARD
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Montréal, Quebec, on April 21, 2009)
THE COURT
[1]
Did
the Umpire (CUB 70980) err in law in his interpretation of subparagraph 29(c)(vi)
and section 30 of the Employment Insurance Act, S.C. 1996, c. 23 (the Act).
[2]
The
combined effect of these provisions is to disqualify workers from receiving
unemployment benefits if they voluntarily leave their employment without just
cause. However, the disqualification does not apply if a worker,
since leaving his or her employment, has been employed in insurable employment for
the number of hours required to qualify to receive benefits.
[3]
This
Court therefore has to resolve whether, in the circumstances, the respondent
had just cause for leaving his employment and if the disqualification from
unemployment benefits applies in his case. The relevant provisions of the Act read
as follows:
|
29. For the purposes of sections 30 to 33,
(a)
“employment” refers to any employment of the claimant within their qualifying
period or their benefit period;
. . .
(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:
. . .
(vi)
reasonable assurance of another employment in the immediate future,
. . .
30. (1) A claimant is disqualified from
receiving any benefits if the claimant lost any employment because of
their misconduct or voluntarily left any employment without just cause,
unless
(a)
the claimant has, since losing or leaving the employment, been employed in
insurable employment for the number of hours required by section 7 or 7.1
to qualify to receive benefits; or
(b)
the claimant is disentitled under sections 31 to 33 in relation to the
employment.
|
29.
pour l'application des articles 30 à 33 :
a) « emploi » s’entend de tout emploi exercé
par le prestataire au cours de sa période de référence ou de sa période de
prestations;
[…]
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
:
[…]
(vi)
assurance raisonnable d’un autre emploi dans un avenir immédiat,
[…]
30. (1) Le prestataire est exclu du bénéfice
des prestations s’il perd un emploi en raison de son inconduite ou s’il
quitte volontairement un emploi sans justification, à moins, selon le cas
:
a) que, depuis qu’il a perdu ou quitté cet
emploi, il ait exercé un emploi assurable pendant le nombre d’heures requis,
au titre de l’article 7 ou 7.1, pour recevoir des prestations de chômage;
b) qu’il ne soit inadmissible, à l’égard de cet
emploi, pour l’une des raisons prévues aux articles 31 à 33.
|
(Emphasis added)
[4]
It
is clear from these provisions that a worker has just cause to leave an
employment if leaving is the only reasonable alternative in his or her case,
taking into account, among other things, that the worker has reasonable
assurance of another employment in the immediate future.
Decision of the
Board of Referees
[5]
In
this case, the Board of Referees rescinded the Commission's decision. In
a decision that is as laconic as it is erroneous, the Board found that the
respondent had just cause to leave his employment for a seasonal position in
another field where he could improve his financial situation.
[6]
The
respondent had a part-time job as a service station attendant that provided him
with 15 to 20 hours' work a week. He was paid $8 an hour. He moved
from the Gaspé to Québec, where he worked for Maçonnerie Richard et Plante Inc.
(Maçonnerie) to obtain his competency cards as an apprentice mason. He worked there from October 8 to November 23, 2007.
[7]
When
the respondent left his employment in the Gaspé on September 15, 2007,
Maçonnerie guaranteed him 150 hours' work at $18.60 an hour. While
working in his new position, he accumulated 184 hours of insurable employment.
[8]
The
respondent left his previous position to go to Québec because the Commission de
la construction du Québec (CCQ) had opened, for a limited period, apprentice
mason positions, making it possible for those who qualified to obtain a
CCQ-recognized competency card.
[9]
These
are the facts underlying the Board's decision.
Decision of the Umpire
[10]
The
Umpire referred to the decision of this Court in Attorney General of Canada
v. Langlois, 2008 FCA 18, given the factual similarities of the two cases. In Langlois,
as in the case at bar, the worker had left a permanent position for another
higher-paying, permanent but seasonal position.
[11]
For
the Umpire, the issues were a simple matter of weighing the evidence: see page
6 of the reasons for his decision. He applied the case law stating
that the Board of Referees has sole jurisdiction over the facts and that the Umpire
may not substitute his or her opinion for that of the Board, unless the Board's
decision was made in a perverse or capricious manner, or without regard to the
material before it: ibidem.
[12]
Finally,
at page 7 of his reasons, the Umpire expressed the view that the Board's
decision was entirely consistent with the decision of this Court in Langlois,
above, with regard to “the issue of just cause . . . involving
circumstances similar to those of the claimant in this case”. He
upheld the Board of Referees’ decision.
Analysis of the decisions of the Board of
Referees and the Umpire
a) Desire to change one’s financial situation
[13]
The
Board of Referees erred when it accepted a worker's desire to improve his or
her financial situation as just cause for voluntarily leaving an employment.
[14]
Case
law is nonetheless clear on this issue, and the respondent has complained that
it was not followed.
How many times does it have to be repeated before
umpires understand and the Chief Umpire ensures that they have understood?
However noble and legitimate the desire to improve
one's lot may be, this desire is not, for the purposes of sections 29 and 30 of
the Act, a legal justification for voluntarily leaving one's employment.
In Langlois, above, the Court wrote as follows
at paragraph 31 of the reasons for its decision:
[31] 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: see Canada
(Attorney General) v. Tremblay (1994), 172 N.R. 305 (F.C.A.); Astronomo
v. Canada (Attorney General) (1998), 37 C.C.E.L. (2d) 141 (F.C.A.); Canada
(Attorney General) v. Martel, (1994), 7 C.C.E.L. (2d) 130 (F.C.A.). In the
words of this Court in Campeau, above, at paragraph 21, “sincerity and
inadequate income do not constitute just cause under section 30 of the Act,
allowing [the claimant] to leave her employment and making the Employment
Insurance system bear the cost of supporting her.”
[15]
The
decision of Umpire Stevenson in Tilbury (CUB 66322), on which the Board
of Referees relied in this case, should be decried. By Umpire
Stevenson's refusal or failure to follow the case law in this matter, the
decision misleads boards of referees and creates illegitimate expectations on
the part of benefit claimants as well as causing them to incur costs in
judicial review.
[16]
The
Umpire ought to have intervened to condemn the Board's error in law: see Attorney
General of Canada v. Sacrey, 2003 FCA 377, at paragraphs 6, 11 and 12,
according to which the interpretation of the term “just cause” within the
meaning of subsection 30(1) is a question of law, and its application one of
mixed fact and law; Attorney General of Canada v. Campeau, 2006 FCA
376, at paragraph 17.
b) Did
the respondent have reasonable assurance of another employment in the immediate
future giving him just cause to leave his previous employment?
[17]
With
respect, the Umpire misinterpreted this Court's decision in Langlois,
leading him to misapply it to the facts of this case.
[18]
The
mere fact that the respondent left his previous employment for a seasonal job
inevitably leading to a period of unemployment did not necessarily disqualify
him from receiving benefits: Attorney General of Canada v. Langlois,
above, at paragraph 29.
[19]
But
reasonable assurance of another employment in the immediate future must be
determined in light of all the circumstances surrounding the claimant's
leaving, as paragraph 29(c) of the Act invites us to do, in order to
decide whether leaving was the claimant's only reasonable alternative. On
this point, our Court described as follows, at paragraphs 33 and 34 of Langlois,
the most significant circumstances to consider when a worker switches to seasonal
employment.
[33] In my view, in
the case of seasonal employment, the time of the voluntary separation and the
remaining duration of the seasonal employment are the most important
circumstances to consider in determining whether leaving was a reasonable
alternative and, accordingly, whether there was just cause for it.
[34] Switching to
seasonal employment late in the season when it is about to end and when it is
obvious that the requirements of section 30 will clearly not be met creates a
certainty of unemployment for which there can be no just cause. The employee is
free to quit his non-seasonal job, but it is he alone then who must assume the
risk of his voluntary leaving. How does this apply to the case at bar?
[20]
When
the respondent left his employment, it was clear that he would not qualify for
benefits under section 30 at the end of his new seasonal position because he
was guaranteed only 150 hours of work instead of the 840 he had to
accumulate in his new job.
Moreover, the respondent was also aware that work was
hard to find at this time of the year. In
fact, the employment ended on November 23 and lasted only six weeks.
[21]
In
the circumstances, the respondent's voluntary leaving was not justified within
the meaning of subparagraph 29(c)(vi) and section 30 of the Act.
Conclusion
[22]
There
is no doubt that disqualification under section 30 of the Act punishes the
respondent because he cannot add the insurable hours accumulated in his
previous employment to those accumulated in his new employment. But
that is the choice that Parliament made. And
although we are sympathetic to the respondent's cause, we must apply the Act.
[23]
For these reasons, the
application for judicial review will be allowed without costs since the
respondent did not oppose it. The decision of the Umpire
(CUB 70980) will be quashed and the matter referred back to the Chief Umpire or
his designate for redetermination on the basis that the respondent did not have
just cause to leave his employment with Cie 9058-0697 Québec Inc. and that he
has not accumulated the minimum number of hours of insurable employment
required to qualify for benefits.
“Gilles Létourneau”
“J.D. Denis Pelletier”
“Johanne Trudel”
Certified
true translation
Johanna
Kratz
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