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Date: 20041217

Docket: A-260-04

Citation: 2004 FCA 439

CORAM:        DÉCARY J.A.

ROTHSTEIN J.A.

MALONE J.A.

BETWEEN:

                                                                DONNA CLOW

                                                                                                                                              Applicant

                                                                           and

                                             ATTORNEY GENERAL OF CANADA

                                               (Employment Insurance Commission)

                                                                                                                                          Respondent

                                          Heard at Calgary, Alberta, December 16, 2004.

                                Judgment delivered at Calgary, Alberta, December 17, 2004.

REASONS FOR JUDGMENT BY                                                      DÉCARY J.A.                         

CONCURRED IN BY:                                                                         ROTHSTEIN J.A.

MALONE J.A.


Date: 20041217

Docket: A-260-04

Citation: 2004 FCA 439

CORAM:        DÉCARY J.A.

ROTHSTEIN J.A.

MALONE J.A.

BETWEEN:

                                                                DONNA CLOW

                                                                                                                                              Applicant

                                                                           and

                                             ATTORNEY GENERAL OF CANADA

                                               (Employment Insurance Commission)

                                                                                                                                          Respondent

                                                    REASONS FOR JUDGMENT

DÉCARY J.A.


[1]                The Applicant had voluntarily terminated her employment in Ontario in order to move closer to her partner who she claims to be her common-law spouse. Her partner had been detained in a federal penitentiary in Ontario but had been transferred to the penitentiary in Drumheller, Alberta. At the time of her move Ms. Clow had not inquired about job opportunities in Alberta, and she remained unemployed for some four months. She filed an application for unemployment insurance benefits which was denied, the Commission being of the view that she did not have "just cause" to terminate her employment pursuant to paragraph 29(c) of the Employment Insurance Act.

[2]                The Applicant appealed to the Board of Referees, which dismissed her appeal. She then appealed to an Umpire, who again dismissed her appeal. She then sought reconsideration of the Umpire's decision, but the Umpire found that there were no new facts within the meaning of s. 120 of the Act and he refused to reconsider his decision.

[3]                The decision which is the object of this judicial review application is the reconsideration decision. It is well settled in the case law that the Court will only review the reconsideration decision and will not while doing so re-examine the original decision. In the case at bar the Umpire found that there were no new facts (see Canada (Attorney General) v. Chan, (1994) 178 N.R. 372 (F.C.A.). That finding was open to him on the record and his decision can simply not be questioned.


[4]                I will add, because the Applicant seems to be of the view that she was treated unjustly by the Commission, that even had she sought judicial review of the Umpire's original decision, she would not have succeeded. The Board of Referees, amongst other things, found that "there was no urgency in the claimant moving to Alberta" and that "the claimant did not conduct a reasonable search for employment prior to voluntarily leaving her position". These findings support the Board's conclusion that the Applicant had not established that she had no reasonable alternative to leaving her employment. The Applicant relies on the decision of this Court in Canada (Attorney General) v. Dueck, [1996], F.C.J. No. 1718 (QL) (F.C.A.), aff. CUB 33865 but in that case the claimant had stayed in Saskatoon a further nine months before moving to Moncton to rejoin and marry her fiancé. All cases are to be assessed on their particular facts.

[5]                This application for judicial review should therefore be dismissed with costs.

                                                                                                                                   "Robert Décary"   

                                                                                                                                                     J. A.               

"I agree

Marshall Rothstein J.A."

"I agree

Brian D. Malone"


                                                  FEDERAL COURT OF APPEAL

                            NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                                               A-260-04

STYLE OF CAUSE:                          Donna Clow v. Attorney General of Canada

(Employment Insurance Commission)

                                                                             

PLACE OF HEARING:                                                         Calgary, Alberta

DATE OF HEARING:                                                           December 16, 2004

REASONS FOR JUDGMENT BY:                                     DÉCARY J.A.

CONCURRED IN BY:                                                          ROTHSTEIN J.A.

MALONE J.A.


DATED:                                                                                   December 17, 2004

APPEARANCES:

Ms. Donna Clow                                                                       FOR THE APPLICANT

Ms. Marta E. Burns                                                                   FOR THE RESPONDENT

SOLICITORS OF RECORD:

Ms. Donna Clow

Hilda, Alberta                                                                            FOR THE APPLICANT

Morris Rosenberg

Deputy Attorney General of Canada     FOR THE RESPONDENT



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