Date: 20021125
Docket: A-249-01
Ottawa, Ontario, November 25, 2002
CORAM: RICHARD C.J.
DÉCARY J.A.
NOËL J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Plaintiff
and
MATHIEU LESSARD
Defendant
JUDGMENT
The application for judicial review is allowed with 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 excluded from receiving benefits because the hours worked for Sobeys Inc. during his qualifying period cannot be taken into account.
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"John Richard"
Chief Justice |
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
Date: 20021125
Docket: A-249-01
Neutral citation: 2002 FCA 469
CORAM: RICHARD C.J.
DÉCARY J.A.
NOËL J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Plaintiff
and
MATHIEU LESSARD
Defendant
Hearing held at Québec, Quebec, on November 19, 2002.
Judgment rendered at Ottawa, Ontario, on November 25, 2002.
REASONS FOR JUDGMENT: DÉCARY J.A.
CONCURRED IN BY: RICHARD C.J.
NOËL J.A.
Date: 20021125
Docket: A-249-01
Neutral citation: 2002 FCA 469
CORAM: RICHARD C.J.
DÉCARY J.A.
NOËL J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Plaintiff
and
MATHIEU LESSARD
Defendant
REASONS FOR JUDGMENT
DÉCARY J.A.
[1] This Court has to determine whether the fact that the claimant ("the defendant") left employment in order to take a training course constituted "voluntary leaving" within the meaning of section 29 of the Employment Insurance Act.
[2] In May 1998, the defendant completed his undergraduate diploma in policing techniques. A necessary part of this study was a further training course lasting thirteen weeks full time at the Quebec Institut de police in the town of Nicolet. In the defendant's case, this course was to last from January 5 to March 31, 1999.
[3] Between the end of his studies and the beginning of his course the defendant found employment with Sobeys Inc. ("Sobeys"), employment which he left in December 1998 to begin his course.
[4] At the end of his course the defendant was hired as a police officer by the town of L'Assomption and then as a police constable by the city of Québec. He was dismissed in September 1999 for lack of work. In October 1999, he filed an application for employment insurance benefits.
[5] In support of his application the defendant submitted records of employment from the three aforesaid employers, for whom he had worked for the last 52 weeks. The Employment Insurance Commission refused to recognize the period of employment with Sobeys on the ground that [TRANSLATION] "going back to school is a personal choice which cannot justify leaving employment" within the meaning of section 29(c) of the Employment Insurance Act. As the number of hours of employment accumulated by the defendant in his qualifying period was thus reduced to a number less than that required by section 7 of the Act, the benefit application was denied by the Commission. It was assumed in the case at bar that the training course was not a course or program to which the Commission had referred the defendant under section 25 of the Act.
[6] The defendant appealed this decision to the board of referees. He argued that he had no choice but to leave his employment with Sobeys if he wanted to become a police officer. It was, he said (plaintiff's record, p. 22), [TRANSLATION] "an unavoidable solution and so was the only reasonable alternative in my case".
[7] The board of referees allowed the appeal on the ground that the defendant had just cause to leave his employment with Sobeys since he had at the time "reasonable assurance of another employment within a reasonable time" within the meaning of section 29(c)(vi) of the Act. The board of referees added the following: [TRANSLATION] "The claimant also mentioned that in his situation he acted as any reasonable person would have done in such a case" (plaintiff's record, pp. 36 and 37).
[8] The umpire affirmed the board of referees' decision, essentially on the ground that in his opinion this was [TRANSLATION] "analysis of a simple question of fact and credibility which was within the jurisdiction of the members of the board of referees" (CUB 48985A).
[9] It will be helpful here to set out certain passages from sections 29 and 30 of the Act:
| 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;
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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) 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: ... |
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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) reasonable assurance of another employment in the immediate future,
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(vi) assurance raisonnable d'un autre emploi dans un avenir immédiat, |
| 30. (5) If a claimant who has lost or left an employment as described in subsection (1) makes an initial claim for benefits, the following hours may not be used to qualify under section 7 or 7.1 to receive benefits: (a) hours of insurable employment from that or any other employment before the employment was lost or left; and (b) hours of insurable employment in any employment that the claimant subsequently loses or leaves, as described in subsection (1).
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30. (5) Dans les cas où le prestataire qui a perdu ou quitté un emploi dans les circonstances visées au paragraphe (1) formule une demande initiale de prestations, les heures d'emploi assurable provenant de cet emploi ou de tout autre emploi qui précèdent la perte de cet emploi ou le départ volontaire et les heures d'emploi assurable dans tout emploi que le prestataire perd ou quitte par la suite, dans les mêmes circonstances, n'entrent pas en ligne de compte pour l'application de l'article 7 ou 7.1.
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[10] It is clear that a claimant who wishes to rely on section 29(c) is not required to show that he is in one of the circumstances expressly listed in that paragraph. The list is in fact only by way of illustration (the paragraph reads "including") of the general rule that a claimant can present evidence that "having regard to all the circumstances" he "had no reasonable alternative to leaving".
[11] Counsel for the defendant argued that the defendant was not seeking payment of benefits during the period of his course, and that accordingly the precedents on "voluntary leaving" developed for that situation cannot be applied. I do not share this view. By adding the definition of "employment" in sections 29(a) and 30(5) of the Employment Insurance Act, Parliament clearly established that time spent by a claimant on employment which he left voluntarily _ without just cause _ during his qualifying period cannot be taken into account. I do not see why the rules developed by the courts with regard to the benefit period would not also apply to the qualifying period.
Section 29(c)(vi)
[12] The board of referees found that [TRANSLATION] "The claimant showed and proved . . . that he had reasonable assurance of another employment within a reasonable time". This test is incorrect on its face: the subparagraph refers to a reasonable assurance and the immediate future. Confusing inter alia "a reasonable time" and "the immediate future" was to commit an error of law which should have alerted the umpire.
[13] The situation described in section 29(c)(vi) assumes three things: "reasonable assurance", "another employment" and "the immediate future".
[14] I doubt that there can be "reasonable assurance of another employment" within the meaning of the subparagraph when obtaining the employment is conditional on completion of a thirteen-week course which has not yet been started. However, I do not have to decide this point since it is in any case clear, in my view, that the "immediate future" test was not met in the case at bar.
[15] As regards the "immediate future", we know first that the future employment was conditional on completion of a course, and second that the time lapse in question was thirteen weeks. Both of these observations are inconsistent with the idea of the "immediate future".
[16] The Grand Robert de la langue française, 2001, defines "immédiat" [immediate] as follows:
II. 1. Qui précède ou suit sans intermédiaire, dans l'espace ou le temps.
2. Qui suit sans délai; qui est du moment présent, a lieu tout de suite.
[17] The Canadian Oxford Dictionary, 2001, defines "immediate" as follows:
1. occurring or done at once or without delay (an immediate reply).
2a. nearest in time or space (the immediate future; the immediate vicinity)
[18] In Canada (Attorney General) v. Traynor (F.C.A.) (1995), 185 N.R. 81, Marceau J.A. very properly used the phrase "in the near future".
[19] It is accordingly clear that employment which only comes into being on the expiry of a course which has not yet been started and lasts thirteen weeks is not employment "in the immediate future".
General rule in section 29(c): "having regard to all the circumstances"
[20] It is settled law in this Court that the fact of a claimant leaving employment voluntarily to go back to school or to take a training course is not just cause within the meaning of section 28 of the old Unemployment Insurance Act or section 29 of the Employment Insurance Act unless he has been authorized to do so by the Commission. In Canada (Attorney General) v. Martel (1994), 175 N.R. 275, Desjardins J.A. said the following at para. 12:
An employee who voluntarily leaves his employment to take a training course which is not authorized by the Commission certainly has an excellent reason for doing so in personal terms; but we feel it is contrary to the very principles underlying the unemployment insurance system for that employee to be able to impose the economic burden of his decision on contributors to the fund.
[21] Recently, in Canada (Attorney General) v. Tourangeau, 2001 FCA 293, [2001] F.C.J. No. 1550, this Court repeated this rule with contemporary precedents in support. In addition to these cases there are the recent decisions in The Queen v. Wall, 2002 FCA 283, and Canada (Attorney General) v. Shaw, 2002 FCA 325.
[22] Even if for the sake of argument one accepts the proposition of counsel for the defendant that there can be exceptions to the rule established by precedent, I have looked in the record in vain for any explanation or event that would justify a departure from the general rule.
[23] The application for judicial review should be allowed with 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 excluded from receiving benefits because the time worked with Sobeys Inc. during his qualifying period cannot be taken into account.
"Robert Décary"
Judge
"I concur.
J. Richard C.J."
"I concur.
Marc Noël J.A."
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
FEDERAL COURT APPEAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE No.: A-249-01
STYLE OF CAUSE: THE ATTORNEY GENERAL OF CANADA
and
MATHIEU LESSARD
PLACE OF HEARING: Québec, Quebec
DATE OF HEARING: November 19, 2002
REASONS FOR JUDGMENT
OF THE COURT: Décary J.A.
CONCURRED IN BY: Richard C.J.
Noël J.A.
DATED: November 25, 2002
APPEARANCES:
Carole Bureau for the plaintiff
Luc Martel for the defendant
SOLICITORS OF RECORD:
Morris Rosenberg for the plaintiff
Deputy Attorney General of Canada
Department of Justice
Montréal, Quebec
Gingras, Vallerand, Barma, Laroche for the defendant
Québec, Quebec