Date: 19980710
Docket: A-141-97
CORAM: STRAYER J.A.
DESJARDINS J.A.
McDONALD J.A.
BETWEEN:
RENA ASTRONOMO
Applicant
- and-
THE ATTORNEY GENERAL OF CANADA
HAMPTON COURT
Respondent
Heard at Vancouver, British Columbia, on Thursday, April 30, 1998
Judgment rendered at Ottawa, Ontario, on Friday, July 10, 1998
REASONS FOR JUDGMENT BY: McDONALD J.A.
CONCURRED IN BY: STRAYER J.A.
DESJARDINS J.A.
Date: 19980710
Docket: A-141-97
CORAM: STRAYER J.A.
DESJARDINS J.A.
McDONALD J.A.
BETWEEN:
RENA ASTRONOMO
Applicant
- and-
THE ATTORNEY GENERAL OF CANADA
HAMPTON COURT
Respondent
REASONS FOR JUDGMENT
McDONALD J.A.
[1] The issue raised by this application for judicial review is whether the applicant had just cause within the meaning of subsection 28(1) of the Unemployment Insurance Act (the Act) for leaving her employment.
[2] The applicant worked at Hampton Court, a mental health facility operated by the respondent employer, as a housekeeper for 13 years. She left for a brief period of time in 1990 on maternity leave. The respondent employer refused to take her back but had a change of heart and decided to re-instate the Applicant after she filed a complaint with the Employment Standards Branch. Upon her return, relations with her employer remained strained. In the Fall of 1994 the applicant left her employment after she was informed that her full time day position was being given to a junior employee who had qualifications as a care aide (qualifications the Applicant does not possess). While she was provided with two alternatives that would allow her to continue working at Hampton Court, neither of these options allowed her to work full-time during the day. It is necessary for the applicant to find full-time employment during the day to enable her to care for her infant daughter at night. The applicant's husband works the night shift and cares for their daughter at home during the day.
[3] After assessing the factual circumstances surrounding the applicant's decision to leave her employment, the Commission granted the applicant Unemployment Insurance benefits on the ground that she had established just cause within the meaning of subsection 28(1) of the Act for leaving her employment. Interestingly, the employer appealed the decision of the Commission to the Board who allowed the appeal. A further appeal by the applicant to the Umpire was dismissed.
[4] The Umpire found that the issue of just cause was implicitly considered by the Board when it found that the employer had in good faith made reasonable offers of employment to the Applicant.
[5] With respect to the decision of the Umpire, I am unable to agree with his conclusion that the Board properly considered the issue of just cause as is required under subsection 28(1) of the Act. I am of the view that the Board did not fully consider whether the Applicant had just cause for leaving her employment. By focusing almost exclusively on the issue of whether the employer's re-organization of its business was done in good faith, the Board failed to have proper regard for the statutory test for just cause as it is found in subsection 28(4) of the Act.
[6] Subsection 28(4) of the Act sets out the factors to be examined when determining just cause. The test to be applied having regard to all the circumstances is whether, on the balance of probabilities, the claimant had no reasonable alternative to immediately leaving his or her employment. While subparagraphs 28(4)(g) and (i) deal with some components of an employer's decision to re-organize its business and constructive dismissal, this is not the exclusive focus of this subsection. It follows that by focusing almost exclusively on the issue of whether the employer's decision to re-organize its business was made in good faith, the Board failed to properly consider whether the applicant had no reasonable alternative to leaving her employment which is the test of just cause as prescribed by subsection 28(4) of the Act. In particular, it should consider circumstances such as those referred to in paragraphs 28(4)(d), (e), (g) and (i) as well as any other paragraphs that are indicated by the evidence. The focus of this exercise should be to determine whether there was a reasonable alternative to placing herself on the roles of the unemployed for insurance purposes, as referred to in the Tanguay case.
[7] I would allow the application for judicial review, I would set aside the decision of the Umpire, and I would refer the matter back to the Chief Umpire or to an Umpire designated by
him with a direction that the matter be sent to the Board of Referees for a new hearing and redetermination in accordance with these reasons.
"F.J. McDonald"
| J.A. |
"I agree
B.L. Strayer J.A."
"I agree
Alice Desjardins J.A."
FEDERAL COURT OF APPEAL
Date: 19980710
Docket: A-141-97
BETWEEN:
RENA ASTRONOMO
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA
HAMPTON COURT
Respondent
REASONS FOR JUDGMENT