Date: 20051003
Docket: A-556-04
Citation: 2005 FCA 321
CORAM: DÉCARY J.A.
LÉTOURNEAU J.A.
PELLETIER J.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
and
PIERROT GAGNON
Respondent
Hearing held at Montréal, Quebec, on October 3, 2005.
Judgment delivered from the bench at Montréal, Quebec, on October 3, 2005.
REASONS FOR JUDGMENT OF THE COURT LÉTOURNEAU J.A.
Date: 20051003
Docket: A-556-04
Citation: 2005 FCA 321
CORAM: DÉCARY J.A.
LÉTOURNEAU J.A.
PELLETIER J.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
and
PIERROT GAGNON
Respondent
REASONS FOR JUDGMENT
(Delivered from the bench at Montréal, Quebec, on October 3, 2005)
LÉTOURNEAU J.A.
[1] On our opinion, the application for judicial review must be allowed.
[2] We assume that there was a work stoppage and interruption of earnings, so that the respondent was unemployed at the time that he applied for benefits.
[3] The Employment Insurance Commission (the Commission) denied the respondent benefits on the ground that he had voluntarily left his employment to go back to school and complete his secondary education. In so doing, first, in the Commission's view, he had left his employment without justification, and second, was unavailable to work.
[4] On appeal to the Board of Referees, the Board determined that the respondent was justified in leaving his full-time employment so he could take a part-time job. Further, the Board of Referees said that in its opinion the respondent was available for work while he was studying.
[5] The umpire agreed with the Board of Referees' second finding: hence this application for judicial review on the question of availability.
[6] Returning to full-time studies creates a rebuttable presumption that the person pursuing the studies is not available for work. That presumption may be rebutted by evidence of "exceptional circumstances": see Landry v. Canada (Attorney General) et al. (1992), 152 N.R. 121.
[7] In this case, the Board of Referees and the umpire determined that the respondent "remained available for work, given that he never severed the employment ties with his former employer, that he remained part of the work force and that he began working full time again in June, once his classes had finished": see umpire's decision, at page 4.
[8] With respect, this finding betrays a misunderstanding in the legal sense of the concept of availability. Failing to sever the employment tie and remaining part of the work force does not necessarily make a person available for work. The courts have consistently held that, in addition, the person must not impose such restrictions on his or her availability as to unduly limit his or her chances of holding employment: see Canada (Attorney General) v. Loder, 2004 FCA 18; Canada (Attorney General) v. Rideout, 2004 FCA 304; Canada (Attorney General) v. Primard (2003), 317 N.R. 359 (F.C.A.); Canada (Attorney General) v. Bois, 2001 FCA 175.
[9] In Vézina v. Canada (Attorney General), 2003 FCA 198, at paragraph 1, the Court repeated the comments it had made in 1982 in Attorney General of Canada v. Bertrand, [1982] F.C.A. No. 423 (QL):
The question of availability is an objective one - whether a claimant is sufficiently available for suitable employment to be entitled to unemployment insurance benefits - and it cannot depend upon the particular reasons for the restrictions on availability, however these may evoke sympathetic concern. If the contrary were true, availability would be a completely varying requirement depending on the view taken on the particular reasons in each case for the relative lack of it.
[10] In this case, the evidence in the record which was provided by the employer, indicates that the respondent had reduced his availability on working days to Fridays and weekends, and that in fact his work schedule was limited to Saturdays and Sundays.
[11] Section 32 of the Employment Insurance Regulations, SOR/96-332 (the Regulations), which we set out below, adopts the concept of a working day found in section 18 of the Employment Insurance Act, S.C. 1996, c. 23 (the Act), and defines every day of the week, except Saturday and Sunday, as a working day:
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32. For the purposes of section 18 of the Act, a working day is any day of the week except Saturday and Sunday.
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32. Pour l'application de l'article 18 de la Loi, est un jour ouvrable chaque jour de la semaine sauf le samedi et le dimanche.
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[12] Under section 18 of the Act, therefore, the respondent was not available on the working days of a benefit period. Accordingly, he was not eligible for benefits.
[13] Additionally, according to the evidence in the record the respondent was not willing to adjust his course schedule in order to accept employment: see applicant's record, page 26, Exhibit 4-1, respondent's statement in reply to question 12.
[14] Finally, the respondent stated that he did nothing to find employment, since he was returning to his prior employment once his studies were complete: ibid., at page 127, question 16. He also admitted that he had no work history while he was taking a course: ibid., question 17.
[15] For these reasons, the application for judicial review will be allowed, in the circumstances without costs since the respondent did not oppose it. The umpire's decision will be set aside and the matter referred back to the Chief Umpire, or a person designated by him, for redetermination on the basis that the respondent is not eligible for benefits given that he is not available within the meaning of section 18 of the Act and section 32 of the Regulations.
Certified true translation
Kelley A. Harvey, BCL, LLB
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A-556-04
(JUDICIAL REVIEW OF JUDGMENT OF PIERRE BLAIS J., ACTING AS UMPIRE FOR THE EMPLOYMENT INSURANCE COMMISSION, AUGUST 26, 2004, DOCKET NO. CUB 61560.)
STYLE OF CAUSE: Attorney General of Canada v. Pierrot Gagnon
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: October 3, 2005
REASONS FOR JUDGMENT OF THE COURT BY: DÉCARY J.A.
LÉTOURNEAU J.A.
PELLETIER J.A.
DELIVERED FROM THE BENCH BY: LÉTOURNEAU J.A.
APPEARANCES:
Pauline Leroux FOR THE APPLICANT
SOLICITORS OF RECORD:
John H. Sims, Q.C. FOR THE APPLICANT
Deputy Attorney General of Canada
Montréal, Quebec
MALTAIS, GENEST FOR THE RESPONDENT
Baie-Comeau, Quebec
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