BETWEEN:
THE ATTORNEY GENERAL OF CANADA
and
Hearing held at Québec, Quebec, on June 12, 2006.
Judgment delivered at Montréal, Quebec, on June 15, 2006.
REASONS FOR JUDGMENT OF THE COURT BY: DÉCARY J.A.
CONCURRED IN BY: LÉTOURNEAU J.A.
NOËL J.A.
Date: 20060614
Docket: A-562-04
Citation: 2006 FCA 219
CORAM : DÉCARY J.A.
LÉTOURNEAU J.A.
NOËL J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
VALÉRIE CÔTÉ
Respondent
REASONS FOR JUDGMENT
DÉCARY J.A.
[1] Once again, this is a case of the disqualification of a person from Employment Insurance benefits on the ground that she left her employment to study.
[2] The respondent held employment as a student security officer at the Charlevoix Casino while she was finishing her CEGEP courses in police technology in Québec. She worked at the Casino every weekend.
[3] On March 31, 2002, she advised her employer that she had registered in a course at the École nationale de police [Quebec police school] in Nicolet from April 8 to July 12 and, because of the extent of travel required, would only be able to work one weekend out of every three during this period. She told her employer that she intended to continue her employment at the Casino subsequently.
[4] On April 1, 2002, the employer terminated the respondent’s employment, effective April 8.
[5] The defendant completed her internship in Nicolet and held various positions in the ensuing months. She was eventually laid off and in February 2003 she filed a claim for Employment Insurance benefits with the Canada Employment Insurance Commission (the “Commission”).
[6] The Commission was of the opinion the respondent voluntarily left her employment without just cause, thereby giving rise to her disqualification under section 30 of the Employment Insurance Act. In accordance with subsection 30(5) of the Act, the insurable hours from her employment at the Casino could no longer be counted for the purposes of calculating the number of hours required to establish her entitlement to benefits.
[7] The Board of Referees allowed the respondent’s appeal. The Board was of the opinion that, under the terms of the student employment contract at the Charlevoix Casino, studies had priority, and in this case [translation] “it was the employer who took the initiative of terminating the employment”. The Board concluded that the respondent did not voluntarily leave her employment.
[8] The Umpire upheld the decision of the Board of Referees, as follows:
On examining the file in its entirety, it appears unthinkable that the employer, which had already had Ms Côté in its employment for some time and seemed satisfied with her work, would use her student status as a reason to dismiss her, if the job in question was a student job.
In fact, the employer had to expect that, for a CEGEP police science student, the next step would be the École nationale de police du Québec, which is the only employment opportunity for students completing their college diploma in police science.
Ms Côté remained available on weekends, and it was the employer who decided to sever their business ties.
[9] In my opinion, it was a mistake to have focused debate on the question of who, the employer or the employee, had taken the initiative. It seems to me that there was a misunderstanding of the legal concept known as “voluntary leaving”. Section 30 of the Employment Insurance Act aims to prevent an employee from deciding to voluntarily leave his or her employment without just cause. An employee who advises his or her employer that he or she is less available than previously is for all intents and purposes asking the employer to terminate the employment contract if the employer cannot accommodate the employee’s reduced availability. Dismissal is therefore only the sanction of the real cause of the loss of employment, that is, the employee’s decision to continue his or her studies under conditions which do not allow him or her to be available any longer. Dismissal is only the logical consequence of the employee’s deliberate act and cannot erase the fact that there was first and foremost voluntary leaving on the part of the employee.
[10] This voluntary leaving may be justified in the manner authorized by paragraph 29(c) of the Act. It is trite law that leaving one’ employment to pursue studies not authorized by the Commission does not constitute “just cause” within the meaning of the Act (see Canada (Attorney General) v. Lessard, (2002) 300 N.R. 354 (F.C.A.); Canada (Attorney General) v. Bédard, 2004 FCA 21; Canada (Attorney General) v. Bois, 2001 FCA 175).
[11] The respondent’s case inspires sympathy, as does any case of a student who works on a part‑time basis to pay for his or her studies. As soon as circumstances oblige this student to leave her part‑time employment to continue her studies, she loses the benefit of accumulated hours of work in that employment. However, this Court has established the principle that it is of the essence of the Employment Insurance program “that the assured shall not deliberately create or increase the risk” (Tanguay v. Unemployment Insurance Commission, (1985), 10 C.C.E.L. 239 (F.C.A.) at page 244; Smith v. Canada (Attorney General) (C.A.), [1998] 1 F.C. 529, at page 537). I do not think there is a difference in principle between returning to or undertaking studies and continuing them. The insured student who leaves part‑time employment to better complete his or her studies deliberately creates the risk. The objective is certainly laudable, but as Pratte J. underlined in Tanguay at page 243, the words “just cause” are not synonymous with “reasons” or “motive”, and I would add, with “objective”. Moreover, I note that all types of “just cause” set out by Parliament in paragraph 29(c) of the Act, except for those specified in subparagraphs (vi) (“reasonable assurance of another employment in the immediate future”) and (xiv) (“any other reasonable circumstances that are prescribed”) assume third‑party intervention. I am aware of the fact that the list is not exhaustive, but I would hesitate to add by jurisprudential means a “just cause” that would be as within the control of an insured person as returning to studies or continuing them. I would prefer to leave this decision to Parliament or the Governor in Council.
[12] For these reasons, I would allow the Attorney General of Canada’s application for judicial review, set aside the Umpire’s decision and refer the matter to the Chief Umpire or his delegate for redetermination, taking into consideration the fact that the respondent must be disqualified from Employment Insurance benefits because she voluntarily left from her employment without just cause. There will be no award as to costs.
Robert Décary
“I concur.
Gilles Létourneau, J.A.”
“I concur.
Marc Noël, J.A.”
Certified true translation
Michael Palles
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A-562-04
STYLE OF CAUSE: THE ATTORNEY GENERAL OF CANADA v. VALÉRIE CÔTÉ
DATE OF HEARING: June 12, 2006
REASONS FOR JUDGMENT BY: DÉCARY J.A.
CONCURRED IN BY: LÉTOURNEAU J.A.
NOËL J.A.
APPEARANCES:
|
FOR THE APPLICANT
|
|
|
ON HER OWN BEHALF
|
SOLICITORS OF RECORD:
|
Montréal, Quebec |
FOR THE APPLICANT
|
|
ON HER OWN BEHALF
|