BETWEEN:
THE ATTORNEY GENERAL OF CANADA
and
Hearing held at Québec, Quebec, on January 25, 2006.
Judgment rendered at Ottawa, Ontario, on February 2, 2006.
REASONS FOR JUDGMENT: LÉTOURNEAU J.A.
CONCURRED IN BY: NOËL J.A.
NADON J.A.
Date: 20060202
Docket: A-566-04
Citation: 2006 FCA 44
CORAM: LÉTOURNEAU J.A.
NOËL J.A.
NADON J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
MATHIEU LAMONDE
Respondent
REASONS FOR JUDGMENT
[1] Was the umpire right to uphold the board of referees’ decision that the respondent was eligible for employment insurance benefits? The claim for benefits was made in the following circumstances.
FACTS AND PROCEDURAL BACKGROUND
[2] The respondent voluntarily took a year’s leave without pay to return to his studies. The leave commenced on May 8, 2003. The respondent resumed his studies at the Malbaie CEGEP. He left Québec and relocated to Charlevoix, where for the summer he held part-time employment in a hairdressing salon and other employment on the weekends as a waiter.
[3] The board of referees found that, in the circumstances, the respondent was justified in leaving his employment, since he had the certainty of obtaining part-time employment. The umpire approved this finding, adding a further justification, namely that the respondent had a background of combining [translation] “work and study” that enabled him to rebut the presumption of not being available for work which a full-time return to study would entail.
ANALYSIS OF UMPIRE’S DECISION
[4] In this case, paragraph 29(c)(vi) and section 32 of the Employment Insurance Act, S.C. 1996, c. 23 (the Act) are relevant. I set out below the provisions necessary for understanding the matter:
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29. For the purposes of sections 30 to 33, |
29. Pour l’application des articles 30 à 33 : |
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. . . |
[...] |
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(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: |
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 : |
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(i) sexual or other harassment, |
(i) harcèlement, de nature sexuelle ou autre, |
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(ii) obligation to accompany a spouse, common-law partner or dependent child to another residence, |
(ii) nécessité d’accompagner son époux ou conjoint de fait ou un enfant à charge vers un autre lieu de résidence, |
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(iii) discrimination on a prohibited ground of discrimination within the meaning of the Canadian Human Rights Act, |
(iii) discrimination fondée sur des motifs de distinction illicite, au sens de la Loi canadienne sur les droits de la personne, |
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(iv) working conditions that constitute a danger to health or safety, |
(iv) conditions de travail dangereuses pour sa santé ou sa sécurité, |
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(v) obligation to care for a child or a member of the immediate family, |
(v) nécessité de prendre soin d’un enfant ou d’un proche parent, |
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(vi) reasonable assurance of another employment in the immediate future, |
(vi) assurance raisonnable d’un autre emploi dans un avenir immediate, |
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. . . |
[...] |
(Emphasis added.)
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32. (1) A claimant who voluntarily takes a period of leave from their employment without just cause is not entitled to receive benefits if, before or after the beginning of the period of leave, |
32. (1) Le prestataire qui prend volontairement une période de congé sans justification n’est pas admissible au bénéfice des prestations si, avant ou après le début de cette période : |
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(a) the period of leave was authorized by the employer; and |
a) d’une part, cette période a été autorisée par l’employeur; |
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(b) the claimant and the employer agreed as to the day on which the claimant would resume employment.
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b) d’autre part, l’employeur et lui ont convenu d’une date de reprise d’emploi.
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(2) The disentitlement lasts until the claimant |
(2) Cette inadmissibilité dure, selon le cas, jusqu’à : |
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(a) resumes the employment; |
a) la reprise de son emploi; |
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(b) loses or voluntarily leaves the employment; or |
b) la perte de son emploi ou son départ volontaire; |
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(c) after the beginning of the period of leave, accumulates with another employer the number of hours of insurable employment required by section 7 or 7.1 to qualify to receive benefits. |
c) le cumul chez un autre employeur, depuis le début de la période de congé, du nombre d’heures d’emploi assurable exigé à l’article 7 ou 7.1. |
[5] Under section 32(1) of the Act, a claimant who voluntarily takes a period of leave from employment without just cause is not entitled to receive benefits if the period of leave was authorized by the employer and the claimant and employer agreed as to the date on which the claimant would resume employment. That section is applicable in this case, since the expected duration of the leave was one year and the respondent and employer agreed that the respondent could terminate his leave on 30 days’ notice and resume his duties. It will be applicable if the other essential condition is met, namely if the period of leave was taken without just cause.
[6] It should be noted that the length of the ineligibility is determined by subsection 32(2) of the Act. There is no doubt that, at the time the claim for benefits was made by the respondent in August 2003, none of the conditions required for terminating the ineligibility period had been met. The respondent was thus ineligible if his period of unpaid leave was not justified.
[7] In the case at bar, the respondent took leave in order to return to studies full time. This Court’s case law on the point is well settled: except for programs authorized by the Employment Commission (the Commission), a return to school does not constitute justification under paragraph 29(c), and accordingly for the purposes of sections 30 to 33 of the Act: see e.g. Attorney General of Canada v. Bédard, 2004 FCA 21, at paragraph 8. The respondent accordingly took leave without just cause within the meaning of section 32, thus making that section applicable, unless of course he can rely on the paragraph 29(c)(vi) justification accorded to him by the board of referees and the umpire, that is, that he had the assurance of other employment in the immediate future.
[8] The circumstances referred to in paragraph 29(c), which must be taken into account in determining whether the taking of leave may be justified, are those existing at the time the respondent took leave from his employment: see Canada (Attorney General of Canada) v. Furey (1996), 201 N.R. 237, at paragraph 3. They are thus to be assessed as of that time.
[9] With respect, I do not think that the assurance of part-time employment, which is not sufficiently remunerative and requires reliance on employment insurance benefits, is the type of employment which, under 29(c)(vi), provides a claimant with a basis for taking leave to return to study and making the employment insurance system bear the cost of doing so. In Canada (Attorney General) v. Martel (1994), 175 N.R. 275, at paragraph 13, Desjardins J.A. restated as follows the purpose of employment insurance, as well as the principles applicable to those wishing to complete their training:
The primary purpose of unemployment insurance is therefore to provide compensation for any insured who involuntarily find himself unemployed, as this risk is unfortunately all too frequent, and not to assist those who from personal choice decide to continue their training. (See In the matter of the Unemployment Insurance Act 1971 and In the matter of the claim for benefit by Richard Hesson (CUB 17797) (January 29, 1990), at p. 4.) In that case, the unemployed condition is created by the claimant of his own free will (“of the employee’s own creation”). (See Crewe and others v. Social Security Commissioner, [1982] 2 All E.R. 745, Donaldson J., as cited in Tanguay v. Unemployment Insurance Commission (October 2, 1985), A-1458-84 (F.C.A.), per Pratte J.A., at p. 8.)
[10] The board of referees referred to the fact that, during the summer, the respondent held not one but two part-time jobs, and it appeared to attach importance to this. One of these jobs was on weekends. I note that Saturdays and Sundays are not regarded as working days for the purpose of determining an individual’s availability for work: see Attorney General of Canada v. Gagnon, 2005 FCA 321, and Canada (Attorney General) v. Primard, 2003 FCA 349.
[11] It is true that this Court has recognized that the presumption of unavailability resulting from a full-time return to school is a rebuttable presumption. It may be rebutted by proof of exceptional circumstances: Attorney General of Canada v. Gagnon, 2005 FCA 321.
[12] It is established that a work history showing that the claimant held regular employment while he was studying may make it possible to rebut the presumption; by definition, however, a history refers to a chronology of past events. In this case, the respondent had no history of combining work and study at the time he took his leave without pay. Moreover, in Canada (Attorney General) v. Loder, 2004 FCA 18, the Court noted that in Landry v. Canada (1992), 152 N.R. 164 (F.C.A.), there was a work history stretching over several years, not a short period of two months as invoked by Mr. Loder.
[13] For these reasons, the application for judicial review will be allowed without costs, as the applicant has graciously waived them. The umpire’s decision will be quashed and the matter referred back to the chief umpire or a person designated by him to be again decided on the basis that
the Commission’s appeal from the decision of the board of referees should be allowed and the respondent ruled ineligible for benefits within the meaning of section 32 of the Act as of November 18, 2003.
I concur
Marc Noël J.A.
I concur
Nadon J.A.
Certified true translation
François Brunet, LLB, BCL
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A-566-04
STYLE OF CAUSE: ATTORNEY GENERAL OF CANADA v.
MATHIEU LAMONDE
PLACE OF HEARING: Québec, Quebec
DATE OF HEARING: January 25, 2006
REASONS FOR JUDGMENT: Létourneau J.A.
Nadon J.A.
APPEARANCES:
Carole Bureau FOR THE APPLICANT
Antoine Lippé
Mathieu Lamonde FOR HIMSELF
SOLICITORS OF RECORD:
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Deputy Attorney General of Canada Montréal, Quebec |
FOR THE APPLICANT
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