CUB 21693
JUDGMENT OF THE FEDERAL COURT OF APPEAL
Date:
February 28, 1994
Docket:
A-1388-92
Umpire's Decision:
CUB 21693
CORAM :
MARCEAU J.A.
STONE J.A.
DESJARDINS J.A.
BETWEEN :
THE ATTORNEY GENERAL OF CANADA,
applicant,
-and-
MERVYN HIGGETT,
respondent.
Heard at Vancouver, British Columbia, on Thursday, January 20, 1994.
REASONS FOR JUDGMENT
(Judgment rendered at Ottawa, Ontario,
on Monday, February 28, 1994)
MARCEAU J.A.:
This is one of four applications for judicial review which, at the request of counsel, were joined together for hearing, since they all raised the same basic issue of the validity of a policy of the Unemployment Insurance Commission. The unwritten administrative policy in question consists of allowing a claimant, who has moved from a larger centre to a smaller one of more restricted re-employment opportunities, some time to explore the labour market in the new locality but then requiring that the claimant, in order to remain available under paragraph 14(a) of the Unemployment Insurance Act, expands his or her employment search geographically. I have already dealt with the issue in the case of Attorney General of Canada v. Whiffen. I explained there that the policy in itself did not appear to me illegal since it was essentially a particular application of the principle that a claimant must not act in such a manner as to diminish his or her chances of re-employment. I took care, however, in validating the policy, to stress that it could not be applied blindly and automatically. First, it was necessary to verify in each case, in view of the claimant's particular situation, whether the move from the larger to the smaller centre actually diminished his or her chances of re-employment. Second, that the new requirements imposed on him or her after a certain period of time had to be reasonable according to all circumstances. I excluded also any application of the policy to a claimant moving in order to follow his or her spouse and thereby preserve the unity of his or her family; in such a case, the claimant cannot, in order to prove his or her availability, be subjected to requirements other than those imposed on other claimants of his or her new area. I attach a copy of my reasons in Whiffen to the present reasons.
The respondent, in the present case, filed an application for benefits on March 8, 1989 in Edmonton, Alberta. He had just left his job there as an assistant cook because he could no longer tolerate the conditions in which he had to work. The respondent has weak knees and a disabled right leg and his work required him to be on his feet all day. His application was acted upon, a benefit period was defined and benefits were paid.
On September 8, 1989, the respondent submitted a request to transfer his claim from Edmonton to 100 Mile House, B.C., indicating as the purpose of his move "good possibility of employment". A few weeks later, the respondent received a letter from the Commission advising that since he had earned his insurable employment in an area that has a larger industrial base, while current labour market information indicates that employment opportunity in his new place of residence is greatly reduced, he would be given a reasonable period of time to explore the employment opportunities where he had moved after which his entitlement to benefits would be reviewed.
In an interview with the Commission on November 29, 1989, the respondent explained that he had relatives in 100 Mile House, notably a brother, who had insisted that there was work in that area for a cook, his only field of experience, and that the special work environment his physical condition required could be more easily satisfied there than in Edmonton where his handicap was an almost insurmountable obstacle. He explained that since his arrival, he had made every effort to find work and applied at many restaurants, but he had been unsuccessful except for a temporary employment. His intention was to keep searching as much as he could.
Two weeks later, on December 15, 1989, the respondent received a letter indicating that he was no longer entitled to benefits as of December 11, 1989, since he had not proven that he was available for work, and advising that the payment of benefits would be suspended for as long as he continued to look for work only in the 100 Mile House area.
The respondent appealed to a Board of Referees explaining again the reasons for his move and detailing his efforts to find a job, mentioning particularly that he had sent out resumes, run adds in the local paper and searched as far away as Williams Lake. The Board nevertheless dismissed the appeal invoking as its sole basis the long-standing jurisprudence of the Commission applicable to claimants moving to an area of fewer job opportunities than the one where they had last worked. The respondent brought his case to the umpire. Madame Justice Reed, called upon to act as umpire, allowed the appeal by simply referring to the position she had already taken in other cases with respect to the invalidity of the Commission's policy.
Of course, I do not adopt the reasons given by the umpire for disapproving the Board of Referees' confirmation of the ruling of the Commission. The policy of the Commission is not invalid, in my judgment. The case, however, appears to me to fall squarely under the proviso I developed in my reasons in Whiffen that the application of the policy in a particular case required that the comparison between the labour markets of the former and new residences had to be made with respect to the claimant's particular situation, possibilities and circumstances. It is clear that this was not done here. The policy was applied blindly, with no regard whatever to the sole work expertise of the respondent and to his being an invalid. The fact that Edmonton was obviously a much larger labour centre than the 100 Mile House area was no compelling proof that the respondent's chances of re-employment were, in his particular circumstances, significantly reduced. The umpire rightly concluded that the decisions of the Commission and the Referees could not be sustained.
I would therefore dismiss the application for review.
"Louis Marceau"
J.A.
"I agree.
A.J. Stone, J.A."
"I concur.
Alice Desjardins, J.A."
2011-01-10