CUB 26046
JUDGMENT OF THE FEDERAL COURT OF APPEAL
Date:
June 2, 1995
Docket:
A-691-94
Umpire's Decision:
CUB 26046
"TRANSLATION"
CORAM :
MARCEAU J.A.
DESJARDINS J.A.
DÉCARY J.A.
IN RE an application under section 28 of the Federal Court Act, R.S.C. 1985, c. F-7.
AND IN RE a decision rendered on September 27, 1994 by the umpire under the Unemployment Insurance Act, R.S.C. 1985, c. U-1, in respect of an appeal made to the umpire by the claimant from the decision rendered by a board of referees on December 8, 1992 at Hull, Quebec.
BETWEEN :
ATTORNEY GENERAL OF CANADA,
applicant,
-and-
MONA MELANSON,
respondent.
Hearing held at Ottawa, Ontario on Wednesday May 31, 1995.
REASONS FOR JUDGMENT
(Judgment rendered at Ottawa, Ontario,
on Friday June 2, 1995)
DESJARDINS J.A.
The respondent had been working for Revenue Canada under contract since November 12, 1991. Her contract was scheduled to terminate on August 28, 1992. However, she left her employment earlier, on August 14, 1992, to take a two-week vacation to visit her family in Nova Scotia. She had accumulated only three days of leave. On the same day she claimed unemployment insurance benefits, indicating that there was a lack of work.
The Commission refused to pay her unemployment insurance benefits on the ground that she had voluntarily left her employment without just cause. It decided that she was disqualified from receiving benefits for a period of eight weeks effective August 9, 1992 and reduced the rate of benefit for the respondent's average weekly insurable earnings. The respondent appealed this decision to the board of referees, which affirmed the Commission's decision. Before the umpire, the claimant asserted that she had consulted the Commission before taking her vacation and had been told that there was no problem and that she could claim benefits. The umpire, after summarizing the evidence, allowed her appeal on the basis of paragraph 28(4)(n) of the Unemployment Insurance Act ("the Act") 1 Unemployment Insurance Act (
The umpire could not use the said paragraph as a basis for setting aside the decision of the board of referees.
The event that led to the disqualification of the respondent from receiving unemployment insurance benefits occurred on August 14, 1992 when she left her employment to take a vacation. Paragraph 28(4)(n) of the Act did not come into force until April 3, 1993 2 and could not at any rate, according to the relevant transitional provisions, 3 apply in respect of a person who is disqualified from receiving benefit by reason of an event occurring before the said paragraph came into force. Furthermore, no "reasonable circumstances" had yet been prescribed by regulation pursuant to paragraph 28(4)(n).
In view of the wording of subsection 28(4) in force in August 1992 4 and of the well-settled case law of this Court, 5 the board of referees was right to decide that the respondent had [TRANSLATION] "voluntarily left [her] employment for Revenue Canada without just cause".
This application for judicial review should therefore be allowed, the decision of the umpire should be quashed and the matter should be referred back to the chief umpire or an umpire designated by him for a new decision affirming that of the board of referees.
"Alice Desjardins"
J.A.
"I agree.
Louis Marceau J. A."
"I agree.
Robert Décary J.A."
1 R.S.C. 1985, c. U-1. Subsection 28(1) and paragraph 28(4) (n) read as follows:
28.(1) A claimant is disqualified from receiving benefits under this Part if he lost his employment by reason of his own misconduct or if he voluntarily left his employment without just cause.
...
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:
...
(n) such other reasonable circumstances as are prescribed.
2 Government Expenditures Restraint Act, 1993 No. 2, SI/93-60, 21 April 1993, Order Fixing April 3, 1993 as the Date of the Coming into Force of Sections 18 to 25, 27 and 28 of the Act.
3 Government Expenditures Restraint Act, 1993 No. 2:
27. Notwithstanding sections 19 and 20 of this Act, subsection 28(4) and section 30 of the Unemployment Insurance Act, as they read immediately before the coining into force of sections 19 and 20, continue to apply in respect of a person who, by reason of an event occurring before that coming into force, is disqualified under section 28 of that Act from receiving benefit.
4 Act to amend the Unemployment Insurance Act, S.C. 1990, c. 40, s. 21:
21. Section 28 of the said Act is amended by adding thereto the following subsection:
"(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 circumstances mentioned in paragraphs (a) to (e) the claimant had no reasonable alternative to immediately leaving the employment:
(a) sexual or other harassment;
(b) obligation to accompany a spouse or dependent child to another residence;
(c) discrimination on a prohibited ground of discrimination within the meaning of the Canadian Human Rights Act;
(d) working conditions that constitute a danger to health or safety, and
(e) obligation to care for a child."
5 Tanguay v. Unemployment Insurance Commission (1985), 68 N.R. 154; Attorney General of Canada v. Laurie Martel (September 28, 1994), A-1691-92 (F.C.A.); Attorney General of Canada v. Mary L. McCarthy (August 5, 1994), A-600-93 (F.C.A.); Attorney General of Canada v. Jean-Francois Tremblay (June 9, 1994), A-50-94 (F.C.A.); Attorney General of Canada v. Sylvie Désilets (April 18, 1994), A-1677-92 (F.C.A.).
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