CUB 58551A
JUDGMENT OF THE FEDERAL COURT OF APPEAL
Date:
20050621
Docket:
A-388-04
Neutral Citation:
2005 FCA 241
Umpire's Decision:
CUB 58551A
CORAM :
RICHARD C.J.
DÉCARY J.A.
NOËL J.A.
BETWEEN :
ATTORNEY GENERAL OF CANADA,
applicant,
- and -
ANNE MARIE PENNEY,
respondent.
Heard at St. John's, Newfoundland and Labrador, on June 21, 2005.
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at St. John's, Newfoundland and Labrador,
on June 21, 2005)
NOËL J.A.:
[1] This is an application for judicial review by the Canada Employment Insurance Commission from a decision of an Umpire allowing the claimant's appeal from a prior decision of a Board of Referees.
[2] The Umpire found that the respondent had "just cause" within the meaning of paragraph 29(c) of the Employment Insurance Act, S.C. 1996, c. 23 (the Act) for leaving her employment due to her obligation to care for immediate family members, and as a result, the availability requirements under section 18 of the Act could not be applied to disqualify the claimant from receiving benefits. He said in this respect:
I find it elementary that having left for just cause, in the circumstances which existed, the claimant was not able to prove her availability for work. It was surely not the intention of the legislation, however, to apply section 18 of the Act to disentitle a claimant who qualified for benefits under section 29(c)(v).
[3] The applicant concedes that the claimant had just cause for leaving her employment but states that her obligation to provide care for others left her unavailable for full-time employment as required by section 18 of the Act. It adds that there is nothing inconsistent in this result when regard is had to the jurisprudence of this Court.
[4] In our view, the Umpire failed to have regard to the applicable principles when he held that section 18 could not be applied in the circumstances of this case. The general principles of availability and just cause in employment insurance legislation have been the subject of many decisions. In Canada v. White, [1996] F.C.J. No. 973, this Court relying on Canada v. XXXXXXXXXXX *, [1995] F.C.J. No. 1264 said:
[5] In our view, XXXXXXXXXXX* is determinative of the issue raised on this application. A claimant who establishes just cause for voluntarily leaving employment within the meaning of section 28 [now s. 29] of the Act is not disqualified from receiving benefits but in order to receive benefits remains subject to an obligation under paragraph 14(a) [now. s.18] of showing that he or she was "available for work" "for any working day in a benefit period". In our view, the respondent has failed to show what was required of her under paragraph 14(a) of the Act.
[5] In XXXXXXXXXXX*, Marceau J.A. explained that the underlying purpose of employment insurance legislation is to help those who find themselves unexpectedly unemployed until they are able to secure new employment and that "it is beyond the jurisdiction of the Umpire or of any Court to fashion social welfare legislation out of existing Acts of Parliament which are not addressed to solving this problem" (paragraph 15).
[6] The reasoning in XXXXXXXXXXX* was again applied by this Court in Donahue v. Canada, [1998] F.C.J. No. 935 (application for leave to appeal to the Supreme Court of Canada dismissed March 25, 1999, SCC 28667) and remains good law. It follows that it was not open to the Umpire to waive the requirement of availability on the ground that the claimant had good cause for leaving her employment.
[7] The application for judicial review will therefore be allowed, the decision of the Umpire will be set aside and the matter will be referred to the Chief Umpire or to his designate for a new determination on the basis that the appeal from the decision of the Board of Referees be dismissed.
"Marc Noël"
J.A.
* Further to Justice Marin's direction of October 1994, the claimant's name has been removed.
2011-01-10