Date: 20031021
Docket: A-126-03
Citation: 2003 FCA 389
CORAM: DESJARDINS J.A.
DÉCARY J.A.
SHARLOW J.A.
BETWEEN:
ATTORNEY GENERAL
OF CANADA
Applicant
and
BRADLEY COOPER
Respondent
Heard at Vancouver, British Columbia, on October 21, 2003.
Judgment delivered from the Bench at Vancouver, British Columbia, on October 21, 2003.
REASONS FOR JUDGMENT OF THE COURT BY: SHARLOW J.A.
Date: 20031021
Docket: A-126-03
Citation: 2003 FCA 389
BETWEEN:
ATTORNEY GENERAL
OF CANADA
Applicant
and
BRADLEY COOPER
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Vancouver, British Columbia on October 21, 2003)
SHARLOW J.A.
[1] The respondent was employed as a groundskeeper with the Burnaby School District. The position required him to drive a vehicle, and hence to have a valid driver's license. His license was suspended for three months and his employer gave him an unpaid leave of absence from work.
[2] The respondent then applied for employment insurance benefits. The benefits were denied on the basis that he voluntarily took unpaid leave without just cause (subsection 32(1) of the Employment Insurance Act).
[3] The respondent's appeal to the Board of Referees was allowed on the basis that the respondent had asked for modified duties, without success, but that asking for the modified duties was, in the circumstances, a reasonable alternative available to him. The Board concluded, therefore, that he was not disqualified for benefits pursuant to section 32. The Commission appealed to the Umpire, who dismissed the appeal on the basis that the decision of the Board was primarily based on findings of fact that were supportable on the evidence.
[4] In the application for judicial review in this Court, the Commission argues that the cause of the respondent's unpaid leave was the loss of his license because of behaviour of the respondent that could not possibly lead to a conclusion, on any scenario, that he had just cause for taking unpaid leave. We agree with the Commission.
[5] The evidence in this case was that without his license, the respondent could not perform his normal duties. Therefore, the fact that he asked for modified duties and was refused is irrelevant to his claim for employment insurance benefits.We conclude that the Umpire and the Board of Referees erred in law in finding that the respondent had just cause for taking unpaid leave of absence.
[6] The application for judicial review will be allowed, the decision of the Umpire will be set aside, and the matter will be referred back to the Chief Umpire or his designate for redetermination on the basis that the appeal of the Commission to the Umpire should have been allowed. As no costs have been sought, none will be allowed.
(Sgd.) "Karen R. Sharlow"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-126-03
STYLE OF CAUSE: AGC v. Bradley Cooper
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: October 21, 2003
REASONS FOR JUDGMENT OF THE COURT: Desjardins, J.A., Décary, J.A., Sharlow, J.A.
DELIVERED FROM THE BENCH BY: Sharlow, J.A.
APPEARANCES:
|
Mr. Curtis Workun Ms. Marianne Barker |
FOR THE APPLICANT |
|
|
FOR THE RESPONDENT |
SOLICITORS OF RECORD:
|
Morris Rosenberg Deputy Attorney General of Canada |
FOR THE APPLICANT
|
|
Burnaby, BC |
FOR THE RESPONDENT |