CUB 71284

R. C. STEVENSON, UMPIRE:

The Commission appeals from the decision of a Board of Referees allowing the claimant's appeal from a Commission ruling that he was disqualified from receiving unemployment benefits because he had voluntarily left his employment without just cause.

The claimant left his employment with a group partner on September 9, 2007. He had been offered a consultancy contract with a Child Protection office in Khartoum in the Republic of Sudan. A letter from the Khartoum office to the claimant dated September 5, 2007 said:

It is agreed that your contract commences on 20^th September and expires on 19^th February 2008 for a total of 5 months. However the start date of the contract can be adjusted to reflect the actual start date in case there is any change in your arrival date.

...

Please make sure that you have a valid entry visa prior to embarking on your travel.

On the same date the same office sent to the Visa Section of the Sudanese Embassy in Ottawa certification of the claimant's contract for five months from September 2007 to February 2008. When the Sudanese authorities failed to issue a visa to the claimant he applied for unemployment benefits on November 9. Section 29 of the Employment Insurance Act provides, in part, as follows:

(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:

(vi) reasonable assurance of another employment in the immediate future.

The Commission took the position that reasonable alternatives to leaving would have been:

1. To secure the visa requirement prior to quitting

2. Since the job offer was only a contract position, the claimant should have asked for a leave of absence

3. When he found out that a visa could not be issued, he should have asked for his job back

The Board of Referees found that the claimant had left his job because he had a secure contract position waiting for him.

The Commission does not dispute that the claimant left his job for a secure temporary position in the immediate future. Its argument is that the contract did not assure continued employment at the conclusion of the five month contract. The Commission cites a number of umpires' decisions holding that while leaving a permanent job for a temporary one may be good cause in the mind of the claimant it is not just cause within the meaning of the Act. The Commission also cites the recent decision of the Federal Court of Appeal in Canada (Attorney General) A-75-07, 2008 FCA 18.

I interject here that the claimant's motives were purely altruistic.

In A-75-07 the Court was faced with a case where a claimant had left a permanent employment for a seasonal job offering higher pay and better working conditions in a promising industry where there were labour shortages. The Court distinguished the circumstance of "reasonable assurance of another employment in the immediate future" from the other circumstances enumerated in section 29(c) of the Act. At paragraph 21 Justice Letourneau pointed out that:

There is another important characteristic of subparagraph 29(c)(vi) that sets it apart from the other section 29 scenarios. As this Court emphasized in Canada (Attorney General) A-57-06 , 2006 FCA 376 and Canada (Attorney General) A-562-04 , 2006 FCA 219, subparagraph 29(c)(vi) is the only one, along with the residual clause in subparagraph 29(c)(xiv) (any other reasonable circumstances that are prescribed), that does not assume intervention by a third party. In other words, the circumstances provided for in subparagraph 29(c)(vi) will come into being solely through the will of the claimant. As I shall point out below, this peculiarity of subparagraph 29(c)(vi) brings us back to the very foundations and principles of insurance, which is, need one be reminded, a compensation system based on risk.

At paragraphs 26 to 28 he discussed the grounds for the principle that one may quit a job to take seasonal employment:

[26] First of all, subparagraph 29(c)(vi) allows a claimant to leave one employment for another employment. The legislative provision neither qualifies nor restricts the term "another employment." Had the legislator intended for claimants who voluntarily leave non-seasonal employment in favour of seasonal employment to be disqualified from receiving benefits, it could have easily worded subparagraph 29(c)(vi) as follows: "reasonable assurance of another non-seasonal employment in the immediate future."

[27] Second, paragraph 30(1)(a) allows a person who has left one employment in favour of another to receive benefits if, since leaving the employment, he has been employed in insurable employment for a sufficient duration (i.e., the number of hours required) to qualify to receive benefits. There again, the term "insurable employment" used in section 30 does not exclude seasonal employment and the hours accumulated from that employment.

[28] Finally, the employment insurance scheme entitles seasonal workers in the fields of fishing, hunting and construction, among others, to receive benefits.

We may read "temporary" for "seasonal" in applying those statements to the claimant's case. I do not know whether employment with Child Protection in the Sudan would have been included in insurable employment under section 5 of the Employment Insurance Regulations.

Whether a claimant voluntarily left an employment without just cause is a question of mixed fact and law. The standard of review to be applied to the decision of the Board of Referees is that of reasonableness.

I have to conclude that the decision of the Board of Referees was reasonable having regard to all the circumstances of the claimant's situation.

The Commission's appeal is dismissed.

Ronald C. Stevenson

Umpire

FREDERICTON, NEW BRUNSWICK
November 5, 2008