A-765-95
| CORAM: STRAYER J.A. |
| DESJARDINS J.A. |
| ROBERTSON J.A. |
IN RE The Unemployment Insurance Act
Between:
ATTORNEY GENERAL OF CANADA
Applicant
- and -
SHELLEY L. PATTERSON
Respondent
Heard at Winnipeg, Manitoba, on Wednesday, October 23, 1996.
Judgement delivered from the Bench at Winnipeg, Manitoba, on Wednesday, October 23, 1996.
REASONS FOR JUDGMENT OF THE COURT BY: ROBERTSON J.A.
A-765-95
| CORAM: STRAYER J.A. |
| DESJARDINS J.A. |
| ROBERTSON J.A. |
IN RE The Unemployment Insurance Act
Between:
ATTORNEY GENERAL OF CANADA
Applicant
- and -
SHELLEY L. PATTERSON
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Winnipeg,
on October 23, 1996)
ROBERTSON J.A.
The issue raised on this judicial review application is whether both the learned Umpire and Board of Referees erred in concluding that the respondent did not voluntarily leave her employment without just cause, within the meaning of subsection 28(1) of the Unemployment Insurance Act, (the "Act"). The circumstances giving rise to that finding are as follows.
The respondent was employed as a cashier with Canada Safeway Ltd. when she was offered a voluntary buy-out or severance package of $24,000, which offer was to lapse on February 11, 1994. At the time the offer was extended the respondent was considering the possibility of moving to another part of the province to be with her husband. Before deciding to accept the offer the respondent contacted the Unemployment Insurance Commission with a view to determining her eligibility for unemployment insurance benefits. She was advised that because she had made no definite plans to move she might not have just cause to quit her employment. The respondent, however, left her job with Safeway on February 19, 1994 and applied for benefits on March 2, 1994. On her application the respondent indicated that she had quit her employment, received severance pay of $24,000 and that her reason for accepting the buy-out was that she would be moving. Apparently, the respondent was planning to join her husband once the school year came to an end in June.
The Commission denied the claim for benefits on the ground that the respondent had voluntarily left her employment without just cause. On appeal, the Board reversed the Commission's decision. In turn, the Umpire upheld the Board on the following basis:
| In this situation, the Respondent was in the position of knowing that she was going to move to join her husband at the first opportunity which from the evidence was the end of the school term in June of 1994. She was faced with the opportunity of receiving a payout of $24,000.00 which considering all the circumstances was a substantial sum to her, or staying at her place of employment until the school year ended and then moving without the benefit of the buyout. It seems to me that this is not a reasonable alternative. In my view, the Board of Referees was correct in the Decision that it reached when one considers all the circumstances as required by section 28 of the Act. |
We are of the view that this application must succeed. In reaching this conclusion we recognize that paragraph 28(4)(b) of the Act provides that just cause for voluntarily leaving an employment includes an obligation to accompany a spouse to another residence. We also recognize that the respondent was faced with a conundrum. She could either accept the severance package, in which case she might disentitle herself to benefits, or refuse the offer, continue to work with Safeway until such time as she decided to move and then seek unemployment benefits. In our view, however, subsection 28(1) does not permit the respondent to claim benefits once she decided to leave her employment with Safeway and accept the severance package. The effect of our decision is to affirm earlier CUB jurisprudence: see CUB 27882, January 17, 1995 and CUB 28188, April 19, 1995. Our reasoning is as follows.
As the applicant rightly notes "just cause is required for voluntarily leaving employment earlier than when some other just cause is expected to arise". In other words, if a claimant leaves his or her job early, that is, at a date which is not within reasonable proximity to the date of the event which represents just cause for voluntarily leaving an employment then, in the absence of a separate just cause, the claimant is barred from receiving benefits by virtue of subsection 28(1) of the Act. What is reasonable proximity, of course, may vary with the reasons for leaving one's employment: see for example Canada (Attorney General) v. Melanson, [1995] F.C.J. No. 848 (F.C.A.), where the claimant left two weeks before her contract was scheduled to end for the purpose of taking a vacation and was denied the benefits she sought on the day she left her employment.
In our view this interpretation of subsection 28(1) is consistent with and reinforces the reasons of this Court in Tanguay v. Canada (Unemployment Insurance Commission) (1985), 68 N.R. 154 at 156 where it was stated that an employee "who leaves his employment for the purpose of gaining some monetary advantage" is "not a circumstance which justifies him in putting himself in a position where he risks having to go back on unemployment". In the present case the respondent was placing the risk of unemployment on the insurance scheme. At the time she left her employment with Safeway there was and could be no guarantee that she would in fact be moving. For example, had her husband decided unexpectantly to return and remain at home there would have been no need for the respondent to move, nor to find new employment.
For the above reasons the application must be allowed, the decision of the Umpire dated August 30, 1995 set aside and the matter referred back to the Chief Umpire or his designate for redetermination on the basis that the respondent had voluntarily left her employment without just cause.
"J.T. Robertson" J.A.
| FEDERAL COURT OF APPEAL |
| A-765-95 |
| IN RE The Unemployment Insurance Act |
| Between: |
| ATTORNEY GENERAL OF CANADA |
| Applicant |
| - and - |
| SHELLEY L. PATTERSON |
| Respondent |
| REASONS FOR JUDGMENT OF THE COURT |