[1] The respondent left his employment in Halifax on the advice of a friend who had informed him that he would find employment with INCO in Thomson, Manitoba. When he arrived in Thomson, he discovered that INCO was not hiring and would not be hiring for a few more months. His application for benefits was denied by the Canada Employment Insurance Commission (the Commission) on the ground that he had left his employment without just cause. He appealed the decision to the Board of Referees.

[2] The evidence before the Board was that the friend whose advice the respondent relied upon was not connected to the employer and that the applicant had never spoken to a representative of that employer (applicant's record, p. 26). The friend had relied on conversations she had had with her uncle whom she described as a well known lawyer in Thomson (a.r., p. 36).

[3] The Board was satisfied, under the circumstances, that the respondent had "made a reasonable choice with the information he had received from his friend and the MacDonald's, a long term legal firm in Thomson, Manitoba". The respondent, according to the Board, had "sufficient assurance of employment to meet the test for just cause" (a.r., p. 42). The Commission appealed to an Umpire.

[4] The Umpire dismissed the appeal in the following words:

The Board found that the assurance of his friend was a sufficient assurance of employment to meet the test for just cause. That is a fact finding that is within the competence of the Board. I do not believe that it is a fact finding that I would have made, but I cannot say that it was made in a perverse or capricious manner. It was certainly a fact finding based on the material that was before the Board.

[a.r., p. 5]

[5] At issue, here, are the interpretation and application of subparagraph 29(c)(vi) and subsection 30(1) of the Employment Insurance Act:

29. For the purposes of sections 30 to 33,

...

(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:

(i) sexual or other harassment,

(ii) obligation to accompany a spouse, common-law partner or dependent child to another residence,

(iii) discrimination on a prohibited ground of discrimination within the meaning of the Canadian Human Rights Act,

(iv) working conditions that constitute a danger to health or safety,

(v) obligation to care for a child or a member of the immediate family,

(vi) reasonable assurance of another employment in the immediate future,

(vii) significant modification of terms and conditions respecting wages or salary,

(viii) excessive overtime work or refusal to pay for overtime work,

(ix) significant changes in work duties,

(x) antagonism with a supervisor if the claimant is not primarily responsible for the antagonism,

(xi) practices of an employer that are contrary to law,

(xii) discrimination with regard to employment because of membership in an association, organization or union of workers,

(xiii) undue pressure by an employer on the claimant to leave their employment, and

(xiv) any other reasonable circumstances that are prescribed.

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_:

...

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_:

(i) harcèlement, de nature sexuelle ou autre,

(ii) nécessité d'accompagner son époux ou conjoint de fait ou un enfant à charge vers un autre lieu de résidence,

(iii) discrimination fondée sur des motifs de distinction illicite, au sens de la Loi canadienne sur les droits de la personne,

(iv) conditions de travail dangereuses pour sa santé ou sa sécurité,

(v) nécessité de prendre soin d'un enfant ou d'un proche parent,

(vi) assurance raisonnable d'un autre emploi dans un avenir immédiat,

(vii) modification importante de ses conditions de rémunération,

(viii) excès d'heures supplémentaires ou non-rémunération de celles-ci,

(ix) modification importante des fonctions,

(x) relations conflictuelles, dont la cause ne lui est pas essentiellement imputable, avec un supérieur,

(xi) pratiques de l'employeur contraires au droit,

(xii) discrimination relative à l'emploi en raison de l'appartenance à une association, une organisation ou un syndicat de travailleurs,

(xiii) incitation indue par l'employeur à l'égard du prestataire à quitter son emploi,

(xiv) toute autre circonstance raisonnable prévue par règlement.

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.

[6] It is undisputed that the definition of "just cause" within the meaning of subsection 30(1) of the Act is a question of law. To use the words of Pratte J.A. in Tanguay v. Unemployment Insurance Commission (1985), 68 N.R. 154 (F.C.A.), at para. 7:

It is true that it is sometimes said that the question of whether an employee was justified in leaving his employment is one of fact. However, it is clear that where the question is as to the definition that must be given to the words "just cause" in s. 41(1), this is purely a question of law. It follows that if a decision is made which cannot be reconciled with this definition, the decision is vitiated by an error of law.

However, Pratte J.A. went on, in the same paragraph and in parentheses, to state that in his view the application of the proper definition of "just cause" to a given set of facts was a "matter of opinion" as opposed to a "question of fact":

(However, as the definition attributable to the words "just cause" in s. 41(1) is not so exact that it is always possible to say with certainty whether the employee has left his employment without just cause, cases may arise which may be decided one way or the other without doing injury to the legal concept of "just cause". The question is then said to be one of fact: it would be more correct to say that it is a matter of opinion.)

The whole paragraph was quoted with approval by this Court in Canada (Procureur général) v. Martel (1994), 175 N.R. 275, at page 283.

[7] The relevant provisions of the Unemployment Insurance Act, 1971 at the time of Tanguay (ss. 41(1)) and of the Unemployment Insurance Act, 1985 at the time of Martel (ss. 28(1)) were not as detailed as they have become throughout the years. They simply stated that a claimant was disqualified if "he voluntarily left his employment without just cause".

[8] "Just cause" was not defined until 1990 (S.C. 1990, c. 40, s. 21), when subsection 28(4) of the Unemployment Insurance Act was added. The provision then read:

28. (4) For the purposes of this section "just cause" for voluntarily leaving an employment exists where, having regard to all the circumstances, including any of the circumstances mentioned in paragraphs (a) to (e), the claimant had no reasonable alternative to immediately leaving the employment:

(a) sexual or other harassment;

(b) obligation to accompany a spouse or dependent child to another residence;

(d) working conditions that constitute a danger to health or safety; and

(e) obligation to care for a child.

28. (4) Pour l'application du présent article, le prestataire est fondé à avoir quitté volontairement son emploi si, compte tenu de toutes les circonstances, notamment de celles qui sont énumérées ci-après, son départ immédiat constituait la seule solution raisonnable dans son cas :

a) harcèlement, de nature sexuelle ou autre;

b) nécessité d'accompagner son conjoint ou un enfant à charge vers un autre lieu de résidence;

c) discrimination fondée sur des motifs de distinction illicite, au sens de la Loi canadienne sur les droits de la personne;

d) conditions de travail dangereuses pour sa santé ou sa sécurité;

e) nécessité de prendre soin d'un enfant.

[9] In 1993 (S.C. 1993, c. 13, s. 19), paragraphs (f) to (n) were added to the list of the circumstances enumerated in subsection 28(4):

(f) reasonable assurance of another employment in the immediate future;

(g) significant modification of terms and conditions respecting wages or salary;(h) excessive overtime work or refusal to pay for overtime work;

(i) significant changes in work duties;

(j) antagonistic relations between an employee and a supervisor for which the employee is not primarily responsible;

(k) practices of an employer that are contrary to law;

(l) discrimination with regard to employment because of membership in any association, organization or union of workers;

(m) undue pressure by an employer on employees to leave their employment; and

(n) such other reasonable circumstances as are prescribed.

f) assurance raisonnable d'un autre emploi dans un avenir immédiat;

g) modification importante de ses conditions de rémunération;

h) excès d'heures supplémentaires ou non-rémunération de celles-ci;

i)modification importante des fonctions;

j) relations conflictuelles, dont la cause ne lui est pas essentiellement imputable, avec un supérieur;

k) pratiques de l'employeur contraires au droit;

l) discrimination relative à l'emploi en raison de l'appartenance à une association, une organisation ou un syndicat de travailleurs;

m) incitation indue par l'employeur à l'égard d'employés à quitter leur emploi;

n) toute autre circonstance raisonnable prescrite.

[10] With the advent of the Employment Insurance Act in 1996 (S.C. 1996, c. 23), subsection 28(1) was replaced by subsection 30(1) and subsection 28(4) was replaced by paragraph 29(c), with slight alterations which are not relevant for the present purposes.

[11] With the refinement in the formulation of the concept of "just cause" throughout the years, it seems to me that what was originally described as a question of law has become so minutely detailed and adapted to live situations as to become a question of mixed fact and law. I think that in Tanguay, Pratte J.A. had anticipated the difficulty of adhering to the strict concept of error of law when he introduced the notion of "matter of opinion" and recognized that "cases may arise which may be decided one way or the other without doing injury to the legal concept of 'just cause'". Pratte J.A., in his own simple words, was describing what has now become the standard of review of reasonableness. What he was saying, if we adapt his words to the Housen v. Nikolaisen, [2002] 2 S.C.R. 235 world, was that where, in a question of mixed fact and law, the legal standard to be applied is clearly distinguishable, the standard of review will generally be that of correctness with respect to the definition of the legal standard at issue, and that of reasonableness with respect to the application of that legal standard to the facts of the case.

[12] One must, therefore, correctly determine the legal standard, but once the proper legal standard has been determined, its application may lead to different results all or some of which may be reconcilable with the law. The norm of correctness will apply to the determination of the legal standard, that of reasonableness to its application (see Budhai et al v. Canada (Attorney General) (2002), 292 N.R. 379 (F.C.A.), at para. 47). When cases arise which may be decided one way or the other without doing injury to, or being irreconcilable with, the legal standard at issue, the decision will withstand judicial review.

[13] The specific legal standard at issue, here, is that of "reasonable assurance of another employment in the immediate future" (subparagraph 29(c)(vi) of the Employment Insurance Act). This specific standard has to be examined in the context of the larger legal standards of "just cause" and "no reasonable alternative to leaving an employment". The principles set out by Pratte J.A. in Tanguay are very much alive. They are summarized in the following often-quoted sentence: the provision pertaining to "just cause" "must be interpreted in accordance with the duty that ordinarily applies to any insured, not to deliberately cause the risk" (at p. 156). In this context, the following extract of the reasons for judgment of Lord Justice Donaldson, of the English Court of Appeal, in Crewe et al v. Social Security Commissioner, [1982] 2 All E.R. 745, at 750:

[...] although the risk of unemployment may arise from his voluntary act in terminating his employment, he may have taken such steps to minimize that risk, by obtaining a promise of immediate fresh employment or by taking steps which may reasonably the expected to lead to such employment...

[my emphasis]

which was cited with approval by Pratte J.A. in Tanguay, p. 157, is particularly relevant.

[14] The words "reasonable assurance", in context and in their natural meaning, imply some measurable form of guarantee. "Assurance" is defined in Black's Law Dictionary, 7^th ed. (St. Paul: West Publishing Co., 1999), as "2. A pledge or guarantee", in The Concise Oxford Dictionary, 10^th ed. (Oxford: Oxford University Press, 2001), as "1. a positive declaration intended to give confidence" and in the The Merriam-Webster Dictionary (http://www.m-w.com/cgi-bin/dictionary), as 2b), "a being certain in the mind". "Assurance", in French, is defined in Le Nouveau Petit Robert, 2001, p. 159, as "4. Promesse ou garantie qui rend certain de qqch," and in Le Petit Larousse illustré, 1997, p. 97, as "1. Certitude, garantie formelle". The use of the word "reasonable" has softened the more stringent meaning otherwise associated with the word "assurance": something short of a formal assurance may qualify as "reasonable assurance".

[15] These words have come under the scrutiny of this Court on many occasions.

[16] In Canada (Attorney General) v. Traynor (1995), 185 N.R. 81 (F.C.A.), this Court found that "the letter, as well as the philosophy and purpose, of the unemployment insurance scheme" does not allow a claimant to leave her job "with the sole view of improving her situation in the market place" (at para. 11). The claimant, in that case, was employed as a grocery clerk in Montreal. She applied for, and was offered, a position in a community dietetic internship program in Kingston, Ontario. This program was a 10 month, full time, practical training with no classroom component. In the past, interns were paid a stipend from the provincial government, but, due to government cutbacks, the practice was abandoned and the claimant had been informed before leaving Montreal that she would not receive any income during her internship. Absent remuneration, actual or eventual, the Court found, there could not be reasonable assurance of another employment as remuneration was necessary in order for a job to constitute "employment" for the purposes of the Act. As the claimant had not left her position with the expectation of securing "employment" in the near future, she could not fall within the exception provided for in what is now subparagraph 29(c)(vi).

[17] In Canada (Procureur général) v. Lessard (2002), 300 N.R. 354 (F.C.A.), this Court found that when the prospect of obtaining employment is contingent upon the completion of a training course which has not yet started and which is to last thirteen weeks, there is no assurance of employment "in the immediate future" for the purposes of subparagraph 29(c)(vi). The Court, in obiter, expressed the view that it was doubtful that there could "be 'reasonable assurance of another employment' [...] when obtaining the employment is conditional on completion of a thirteen-week course which has not yet started" (at para. 14). This latter issue was squarely addressed in Canada (Attorney General) v. Shaw, 2002 FCA 325, where this Court found that a conditional offer of employment did not constitute a "reasonable assurance of another employment". See also, Canada (Attorney General) v. Laughland (2003), 301 N.R. 331 (F.C.A.), where this Court expressed the view, at para. 12, that the purpose of the Employment Insurance scheme "is not to provide employees in unstable employment, who leave their employment without just cause, with benefits while they seek better and more remunerative work".

[18] In the case at bar, absent any offer by the prospective employer, any contact between that employer and the respondent, and any idea as to what the work or the remuneration would be, there is no "assurance" and there is no "employment". We do not even get to the point of asking ourselves whether the assurance of employment was "reasonable".

[19] In the end, the Umpire applied an incorrect standard of review because she held that the question before her was one of fact. The issue, clearly, was one of mixed fact and law. The Umpire should have asked herself if the Board of Referees had properly defined "reasonable assurance" when applying it to the facts. Had she done so, she could only have concluded that the Board of Referees had misconceived the meaning of reasonable assurance. As the question of the proper test to apply is a question of law (Housen, supra), the Umpire was bound to intervene and to apply the proper test (Budhai, supra, para. 48). Had she done so, she would have concluded that the applicant did not have a reasonable assurance of another employment, and the case ought to be decided on that basis.

[20] The application for judicial review should be allowed without costs, the decision of the Umpire set aside and the matter referred back to the Chief Umpire or his delegate to be again decided on the basis that the defendant should be disqualified from receiving benefits because he voluntarily left his employment without just cause.

"Robert Décary"

J.A.

"I concur.

Alice Desjardins, J.A."

"I agree.

J.D. Denis Pelletier, J.A."

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-123-03

STYLE OF CAUSE: Attorney General of Canada v. Vaden Sacrey

PLACE OF HEARING: Halifax, N.S.

DATE OF HEARING: October 1, 2003

REASONS FOR JUDGMENT BY: Décary J.A.

CONCURRED IN BY: Desjardins J.A.

Pelletier J.A.

DATED: October 14, 2003

APPEARANCES:

Scott McCrossin

FOR THE APPLICANT

Vaden Sacrey

FOR HIMSELF

SOLICITORS OF RECORD:

Morris Rosenberg

Deputy Attorney General of Canada

Ottawa, ON

FOR THE APPLICANT

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Canada (Attorney General) v. Sacrey, 2003 FCA 377

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2003 FCA 377