JUDGMENT OF THE FEDERAL COURT OF APPEAL
Date:
February 28, 1994
Docket:
A-1472-92
Umpire's Decision:
CUB 21935
CORAM:
THE HONOURABLE MR. JUSTICE MARCEAU
THE HONOURABLE MR. JUSTICE STONE
THE HONOURABLE MR. JUSTICE DESJARDINS
BETWEEN:
THE ATTORNEY GENERAL OF CANADA,
applicant,
- and -
JEAN WHIFFEN,
respondent.
REASONS FOR JUDGMENT
MARCEAU, J.A.:
Under the Unemployment Insurance Act, whose general scheme is, as is well known, to provide insurance through a national pooling of the risks and costs of unemployment, the right of an unemployed insured individual to receive benefits on any working day within the benefit period established in his or her favour is subject to the condition of his or her being available for work. Section 14 (prior to the revision of 1985, section 25) reads thus:
14. A claimant is not entitled to be paid benefit for any working day in a benefit period for which the claimant fails to prove that the claimant was either(a) capable of and available for work and unable to obtain suitable employment on that day, or
(b) incapable of work by reason of prescribed illness, injury or quarantine on that day, and that he would be otherwise available for work.
In the absence of any precision as to the actual and practical content of that notion of availability 1, it is easy to understand that there is apparently no provision of the Act which has given rise to more debate among the commentators and more jurisprudence at the level of the Commission and the Boards of Referees as well as that of the umpires.
Availability is usually described, in the case law, either as a sincere desire to work demonstrated by attitude and conduct and accompanied by reasonable efforts to find a job, or as a willingness to reintegrate into the labour force under normal conditions without unduly limiting one's chances of obtaining employment. The day-to-day application of these general principles to the multitude of individual cases has inevitably led, at the administrative level, to the regrouping of situations and the adoption of trends in dealing with claimants presenting more or less similar circumstances. One could speak of "administrative policies" 2 that the Commission was led to adopt in the course of fulfilling its duties under the Act.
One such unwritten policy, which is a long standing one, is to consider that a claimant who, after becoming unemployed, moves from the place where he or she was last working to a place with fewer employment opportunities restricts by so doing his or her chances of re-employment and must, therefore, after a certain period of time to be determined, broaden (in the geographical sense) his or her job search to satisfy the requirement of availability imposed by the Act. The rationale for the policy is, of course, that after a reasonable period of time, to avoid disentitlement, the claimant must be prepared to compensate for the loss of opportunity resulting from his or her move.
This particular policy was always accepted without difficulty by the Boards of Referees and its validity was never, until recently, questioned by the umpires. The only time this Court has been called upon to consider an appeal where the policy had been applied, in the case of Attorney General of Canada v. Dodsworth, [1984] 2 F.C. 193, it did not dispute its validity. In the course of the years, the policy was applied over and over again to a great many claimants without being seriously challenged. This is no longer the case.
In the decision now before the Court, the first of four dealing with the same issue and submitted for judicial review at the same hearing, Madame Justice Reed of the Trial Division, acting as an umpire, reiterates the view she had taken in a previous decision (CUB 18174) Sanghera, May 24, 1990) to the effect that the adoption of the policy was beyond the powers of the Commission. Her reasoning, as developed in that Sanghera decision, is in effect that the policy would be based on an interpretation or "gloss" on the statute which is not expressly set out, is liable to become very arbitrary in application, and, in cases involving a spouse moving as a result of a move by the other spouse, forces individuals to choose to either sever the family unit or forgo benefits, a policy imperative which seems contradictory to other jurisprudence. There is no reason, argues the learned umpire, to treat a claimant who has recently moved into a community differently from long-established members of that community. Of course, Madame Justice Reed is not oblivious of the Dodsworth decision of this Court, but since that case concerned a wife who had followed her husband to "an area of little or no real employment opportunity", on the one hand she finds support in the reasons of Mr. Justice Mahoney for her criticism of the policy in the case of a wife moving to follow her husband, and on the other hand she limits the authority of the decision to cases where the move is to an area of no employment opportunity. And Madame Justice Reed finally concludes:
In my view, in order to disentitle a person to benefits because of the low employment opportunities of the area into which they have moved or in which they live, it is necessary to prove that the community is one in which there are virtually no employment opportunities for that person or, as it was said in Dodsworth, "an area of no real employment opportunities". And the opportunities which exist cannot be assessed by reference only to what the claimant worked at previously. They must be assessed by reference to what he or she is willing to work at in the new location. 3
I shall first address the issue of the validity of the impugned policy without regard to the particular facts of this case since it was agreed that its determination would simply be made applicable to the three other cases joined to this one for hearing. I shall come back to the facts of this case later.
***
The case against the position of the Commission in implementing the impugned policy is all contained in Madame Justice Reed's reasons for judgment of which I have just briefly reviewed the salient points. Counsel for the claimant simply dwelt on them. The Act, they said, contains no statutory authority for the Commission to decide that claimants moving into an area of limited employment opportunities will receive benefits only for a reasonable time in which to explore the opportunities in the new area. As noted by this Court in Bertrand v. A.G.C. (1983), 46 N.R. 527, they went on, availability must be objectively determined, a principle that goes against the possibility of a determination based on the subjective opinion of the Commission that a claimant has received a reasonable period of benefits in which to explore the labour market. Once the requirement of availability has been met, the claimant cannot then be deemed unavailable when none of the relevant circumstances have changed. The "insurance principles" often invoked by the Commission in support of its policies should not be heeded since our unemployment insurance system is first and foremost "social insurance" or "social security" legislation which makes it essentially different from a private insurance scheme.
To these statutory arguments counsel, in their written memorandum, purported to advance Charter arguments. The policy, they submitted, offends the equality rights protected by section 15 as well as the mobility and liberty rights of subsection 6(2) and section 7 of the Charter of Rights and Freedoms of the Constitution. During the hearing, the panel questioned the relevance and even the meaning of such arguments when no act or regulation is constitutionally attacked and no evidence whatever is on file as to the effects of the implementation of the policy. Counsel did not insist on these arguments and, for my part, not understanding the meaning and the role that could be attached to them, I see no purpose in reviewing them.
***
There are, in the case advanced against the impugned policy, propositions that are no doubt quite valid. I accept, for instance, that he scheme of the Act cannot be understood and implemented as if it was simply a private insurance scheme. Nevertheless, my reading of the legislation and my understanding of the scheme set up by it does not allow me to support the learned umpire's position.
I shall first review the legislation in order to put forward provisions that, to me, must govern the analysis.
As recalled above, Parliament has established clearly, in section 14, that a claimant must be available to be entitled to benefits, but had left it at that. A definition of the concept of availability and its conditions of existence in practice are nowhere to be found. No doubt it was felt useless to add that availability was a question of fact to be considered on the basis of all the circumstances of each individual case.
There is, however, another provision which directly refers to the requirement of availability, it is in a chapter dealing with "claim procedure" and reads thus:
41.(8) For the purpose of proving that a claimant is available for work and unable to obtain suitable employment, the Commission may require the claimant to prove that he is making reasonable and customary efforts to obtain suitable employment.
It is thereby made clear that a claimant's attitude and conduct capable of demonstrating availability require essentially the making of reasonable and customary efforts to obtain suitable employment.
Section 27 is concerned with disqualification for refusal of an offer of employment, but subsections (2) and (3) thereof speak to this notion of "suitable employment", referred to in both section 14 and subsection 41(8), which notion can only be consistent all the way through the Act. They read thus:
27.(2) For the purpose of this section, but subject to subsection (3), employment is not suitable employment for a claimant if it is
(a) employment arising in consequence of a stoppage of work attributable to a labour dispute;
(b) employment in his usual occupation either at a lower rate of earnings or on conditions less favourable than those observed by agreement between employers and employees, or in the absence of any such agreement, than those recognized by good employers; or
(c) employment of a kind other than employment in his usual occupation either at a lower rate of earnings or on conditions less favourable than those that he might reasonably expect to obtain, having regard to those conditions that he habitually obtained in his usual occupation, or would have obtained had he continued to be so employed.
(3) After a lapse of a reasonable interval from the date on which an insured person becomes unemployed, paragraph (2)(c) does not apply to the employment described therein if it is employment at a rate of earnings not lower and on conditions not less favourable than those observed by agreement between employers and employees or, in the absence of any such agreement, than those recognized by good employers.
It is to be noted that the notion of "suitable employment" in these provisions is defined in part with reference to the personal circumstances of the claimant and, more importantly still, that it is a notion that may vary as the period of unemployment is prolonged.
Finally, I attach special meaning to one of the amendments brought by Parliament to section 28 less than a year ago, namely that at paragraph 28(4)(b):
28.(4) For the purposes of this section, "just cause" for voluntarily leaving an employment exists where, having regard to all the circumstances, including any of the following circumstances, the claimant had no reasonable alternative to leaving the employment:
...
(b) obligation to accompany a spouse or depended child to another residence;...
The preservation of the family unit between spouses and dependent children is now formally recognized as a good cause for leaving employment.
It seems to me that, in that legislative context, the impugned policy of the Commission finds sufficient support.
It is a well-established general rule, and one imposed by the legislation as well as the most common understanding of what a sincere desire to work may imply, that a claimant who imposes unreasonable restrictions regarding the type of work he or she is looking or the area in which he or she wishes to be employed fails to prove availability. Bearing in mind that availability is to be assessed on the basis of attitude and conduct and taking into account all circumstances, the reasonableness of a restriction placed by a claimant to his or her willingness to return to the labour market has to be assessed in like manner. The wilful move of a claimant to an area where his or her chances of re-employment are diminished is certainly to me one circumstance that ought to be considered in assessing the reasonableness of the new geographical restrictions he or she is now forced to place on his or her re-employment. I do not find contrary to the scheme of the Act to sanction a claimant, in assessing his or her availability, for having left the area where he or she was employed and where he or she could have had the best chances of being re-employed. As to the part of the impugned policy which provides for leaving the claimant a reasonable time to explore the new labour market, it is, it seems to me, a particular application of the norm found in section 27 which attested that a restriction may be acceptable for only a period of time after which it may he judged unreasonable.
It is true that the application of the policy leads to treating differently a claimant newly arriving in a particular area and claimants long-established there, but only the former has positively acted in such a way as to bring new limitations to his or her chances of re-employment. It does not appear to me contrary to the scheme of the Act to be more severe as to the geographic restrictions the newly arrived claimant will be allowed to place on his or her efforts to seek a new suitable job, the greater efforts being imposed not only to defeat the poor chances of finding work in the new locality but to make up for the fact that he or she has chosen to leave behind better chances of re-employment. It is true also that the policy, by its very nature, is difficult to apply and may become subjective and uneven, but this is almost inevitable when decisions have to be made on an application of complex situations of facts.
In any event, I consider that this Court, in Dodsworth, has already passed judgment on the validity of the Commission's impugned policy. The learned umpire's attempt to limit the authority of the judgment seems to me, with respect, to be of no avail. If the policy is valid in the case of a claimant moving to an area of practically no employment opportunities, why would it become contrary to the Act when the move is to an area of some but only little or comparatively less employment opportunity? This Court, in Dodsworth, has already recognized, first, that the move of a claimant to an area of lesser employment opportunity was a factor that could be taken into consideration to assess his or her availability and, second, that the concept of giving the claimant a reasonable time to explore the new labour market is within the statutory power of the Commission and in no way contrary to the scheme of the Act.
My conclusion, therefore, is based on Dodsworth and not only on my understanding of the legislation. I consider to be within the power of the Commission to take as a factor directly going to availability the wilful moving of a claimant from a centre of greater employment opportunity to an area of lesser employment opportunity and then to give the claimant who so moves a certain period of time to explore the new labour market before requiring a geographic extension of his or her search.
Such a conclusion, however, should not be misunderstood and overextended. We are talking about the taking into account of a self-imposed restriction to one's chances of re-employment. To simply apply the policy, the fact that the new location was significantly less advantageous for eventual re-employment will have to be established and the burden of establishing that fact will lie on the Commission since it will be advanced to counter the evidence of the claimant that his or her job search is adequate compared to the other claimants of his or her new area. And to properly apply the policy, the comparison between the two labour markets must be made with respect to the claimant's situation, possibilities and circumstances. Above all, we are talking about the assessment of availability and the power of the Commission to require of a claimant greater efforts to go back to the labour force. Availability, it should not be forgotten, is a willingness to work under normal conditions without unduly limiting the chances of obtaining employment. It is a question of fact which requires, to be answered, that all the circumstances of a particular case be examined. In no case should this basic principle be somehow curtailed by the blind and automatic application of a policy. While at the administrative level the adoption of trends may be acceptable in order to preserve consistency, at the appeal level, a review of all the facts and a consideration of all the various factors involved must be carried out. On the other hand, any condition to which a claimant may be subjected in order to keep satisfying the availability requirement has to be reasonable, which again demands a consideration of all the circumstances of each case.
It is because of those principles that the recent amendment brought by Parliament to section 28 of the Act, which now states that the obligation to accompany a spouse or dependent child to another residence is a good cause for leaving an employment, has confirmed the existence of a particular limitation to the application of the policy. There is now legislative approval for Mr. Justice Mahoney's observation in the Dodsworth case to the effect that a wife, because the unity of the family is at issue, has practically no choice but to move with her husband, with the effect that her move cannot be seen as a wilful restriction to her chances of re-employment. In such a case, therefore, as in the case of a husband who follows his wife, the impugned policy can have no application. The claimant has to be treated like all of the other claimants of his or her new area.
This is what I had to say about the general issue raised by the claimants in the four cases joined together for hearing as explained above. I now come to the particulars of the present application.
***
In view of my last observation that the policy cannot apply in the case of a wife moving to follow her husband, the herein application for judicial review will quickly be dealt with. The respondent moved from Chilliwack, B.C. where she had worked as a dental assistant, to Masset, B.C., in the Queen Charlotte Islands, to follow her husband and be with her family. Her husband, a member of the Armed Forces, had been transferred to Masset form Chilliwack. She applied for benefits on July 25, 1989, stating that she was hoping to find employment in the Queen Charlotte Islands. The Commission informed her that since her claim was based on contributions earned in a large metropolitan area, restricting her employment search to the Masset-Port Clement area could result in disentitlement. The respondent indicated to the Commission that she was available for work anywhere in the Queen Charlotte Islands and was seeking employment of many types. She was nevertheless advised, before the end of her benefit period, that she was no longer entitled to benefits for reason that she had not proven that she was available for work. Her appeal to the Board of Referees was dismissed, but her further appeal to the umpire was allowed in the decision here before the Court.
It is common ground that the ruling of disentitlement for lack of availability made by the Commission following the respondent's unwillingness to broaden her job searches beyond the Queen Charlotte Islands was dictated by a pure and direct application of the policy respecting claimants moving to areas of lesser employment opportunity. Long-established claimants in the Queen Charlotte Islands were not required to search for work so far away. Madame Justice Reed was right to quash the approval of the Board of Referees.
The herein application shall therefore be dismissed.
"Louis Marceau"
Judge