A-123-03
2003 FCA 377
The Attorney General of Canada (Applicant)
v.
Vaden Sacrey (Respondent)
Indexed as: Canada (Attorney General)v. Sacrey (F.C.A.)
Federal Court of Appeal, Desjardins, Décary and Pelletier JJ.A.--Halifax, October 1; Ottawa, October 14, 2003.
Employment Insurance -- Worker quitting job at Halifax when told by friend work available with particular company in Manitoba -- Friend unconnected with company -- Respondent going to Manitoba, learning company not hiring at time -- Whether had "just cause" for quitting, "reasonable assurance" of other employment -- Board of Referees held respondent had sufficient assurance of employment to meet just cause test -- Umpire held that decision not perverse, capricious -- Judicial review application allowed -- What constitutes "just cause" -- Now defined by statute, circumstances listed -- Question of mixed fact, law -- Standard of review -- "Reasonable assurance" implies form of guarantee -- Act's purpose not to provide benefits to those quitting jobs to seek better employment -- No assurance of employment herein -- Umpire erred in characterizing mixed fact, law issue as one of fact -- Board misconceived meaning of "reasonable assurance".
Construction of Statutes -- Employment Insurance Act, ss. 29(c)(vi), 30(1) -- "Just cause" for quitting job, "reasonable assurance" of other employment -- Dictionary definitions considered -- Use of adjective "reasonable" suggests less than formal assurance may suffice -- On facts, no reasonable assurance.
This was an application for judicial review of an Umpire's decision dismissing an appeal from the Board of Referees' decision that, for purposes of the Employment Insurance Act, respondent had just cause in quitting his job at Halifax in view of having a reasonable assurance of other employment in Manitoba.
Respondent had relied upon the advice of a friend who, based upon conversations with an uncle, told him that work was available with Inco in that community. When respondent arrived at Thomson, he learned that Inco would not be hiring for some months. The friend was not connected with Inco and respondent had not spoken with the Company prior to going out West.
The Board concluded that respondent had "made a reasonable choice with the information he had received from his friend and the MacDonald's, a long term legal firm in Thomson, Manitoba". The Board found that respondent had "sufficient assurance of employment to meet the test for just cause". An Umpire denied the appeal, on the basis that the finding, as a fact, of just cause had not been made in a perverse or capricious manner.
The issue for determination by the Court of Appeal was the interpretation and application of Employment Insurance Act, subparagraph 29(c)(vi) and subsection 30(1).
Held, the application should be allowed.
The issue as to the definition to be given "just cause" was held in the 1985 case Tanguay v. Unemployment Ins. Comm. to be "purely a question of law". Even so, the definition attributable to the words "just cause" was held by this Court in Tanguay not to be exact so that cases may arise which can be decided one way or the other without injury to the legal concept of "just cause". In more recent years, the relevant provisions of the legislation have been made more detailed. Indeed, the statute has defined "just cause" only since 1990. It now includes a list of circumstances constituting "just cause" for voluntarily leaving a job. What had been described as a question of law has become so minutely detailed and adapted to live situations as to have become a question of mixed fact and law. As the law now stands, in determining a question of mixed fact and law, the appropriate standards of review are correctness as to the legal standard at issue and reasonableness as to the application of that standard to the facts.
At issue here was "reasonable assurance of another employment in the immediate future" (Act, subparagraph 29(c)(vi)) and the "just cause" requirement has to be interpreted in the same way as is the duty upon an insured not deliberately to cause the risk. "Reasonable assurance" of new employment involves some measurable form of guarantee. Dictionary definitions of "assurance" include "a positive declaration intended to give confidence" and "a pledge or guarantee". According to Le Petit Larousse illustré, it means "certitude, garantie formelle". But use of the adjective "reasonable" suggests that something short of a formal assurance may suffice. This Court has recently held that the Act's purpose is not to provide benefits to people who quit their jobs in order to seek better, more remunerative employment.
In the case at bar, there had not even been any contact between respondent and Inco, so there could be no assurance of employment. In such circumstances, the question as to whether an assurance was "reasonable" did not arise. The Umpire erred in characterizing what was a mixed fact and law issue as one of fact. Had she asked herself whether the Board had properly defined "reasonable assurance" in applying those words to the facts, her only conclusion could have been that the Board had misconceived the meaning of those words.
statutes and regulations judicially
considered
| Employment Insurance Act, S.C. 1996, c. 23, ss. 29(c) (as am. by S.C. 2000, c. 12, s. 108), 30(1). |
| Unemployment Insurance Act, R.S.C., 1985, c. U-1, s. 28(1), (4) (as enacted by S.C. 1990, c. 40, s. 21; 1993, c. 13, s. 19). |
| Unemployment Insurance Act, 1971, S.C. 1970-71-72, c. 48, s. 41(1). |
| cases judicially considered |
| applied: |
| Crewe v Social Security Comr, [1982] 2 All ER 745 (C.A.); Canada (Attorney General) v. Traynor (1995), 185 N.R. 81 (F.C.A.); Canada (Attorney General) v. Lessard (2002), 300 N.R. 354 (F.C.A.); Canada (Attorney General) v. Shaw, 2002 FCA 325; [2002] F.C.J. No. 1290 (C.A.) (QL); Canada (Attorney General) v. Laughland (2003), 301 N.R. 331 (F.C.A.). |
| considered: |
| Tanguay v. Unemployment Ins. Comm. (1985), 10 C.C.E.L. 239; 68 N.R. 154 (F.C.A.). |
| referred to: |
| Canada (Attorney General) v. Martel (1994), 7 C.C.E.L. (2d) 130; 175 N.R. 275 (F.C.A.); Housen v. Nikolaisen, [2002] 2 S.C.R. 235; (2002), 211 D.L.R. (4th) 577; [2002] 7 W.W.R. 1; 10 C.C.L.T. (3d) 157; 30 M.P.L.R. (3d) 1; 286 N.R. 1; 219 Sask. R. 1; Budhai v. Canada (Attorney General), [2003] 2 F.C. 57; (2002), 216 D.L.R. (4th) 594; 42 Admin. L.R. (3d) 306; 42 C.C.L.I. (3d) 1; 292 N.R. 379 (C.A.). |
| authors cited |
| Black's Law Dictionary, 7th ed. St. Paul, Minn.: West Group, 1999, "assurance". |
| Concise Oxford Dictionary, 10th ed. Oxford: Oxford Univ. Press, 1999, "assurance". |
| Merriam-Webster Online Dictionary, "assurance". |
| Nouveau Petit Robert. Paris: Dictionnaires Le Robert, 2000, "assurance". |
| Petit Larousse illustré. Paris: Larousse, 1996, "assurance". |
APPLICATION for judicial review of an Umpire's decision (Sacrey (2002), CUB 56252) sustaining a decision of a Board of Referees that an employment insurance claimant had just cause for quitting his job. Application allowed.
| appearances: |
| Scott E. McCrossin for applicant. |
| Vaden Sacrey on his own behalf. |
| solicitor of record: |
| Deputy Attorney General of Canada for applicant. |
The following are the reasons for judgment rendered in English by
[1]Décary J.A.: The respondent left his employment in Halifax on the advice of a friend who had informed him that he would find employment with Inco in Thomson, Manitoba. When he arrived in Thomson, he discovered that Inco was not hiring and would not be hiring for a few more months. His application for benefits was denied by the Canada Employment Insurance Commission (the Commission) on the ground that he had left his employment without just cause. He appealed the decision to the Board of Referees.
[2]The evidence before the Board was that the friend whose advice the respondent relied upon was not connected to the employer and that the applicant had never spoken to a representative of that employer (applicant's record, page 26). The friend had reli ed on conversations she had had with her uncle whom she described as a well-known lawyer in Thomson (applicant's record, page 36).
[3]The Board was satisfied, under the circumstances, that the respondent had "made a reasonable choice with th e information he had received from his friend and the MacDonald's, a long term legal firm in Thomson, Manitoba". The respondent, according to the Board, had "sufficient assurance of employment to meet the test for just cause" (applicant's record, page 42). The Commission appealed to an Umpire [(2002), CUB 56252].
[4]The Umpire dismissed the appeal in the following words (applicant's record, page 5):
The Board found that the assurance of his friend was a sufficient assurance of employment to meet the test for just cause. That is a fact finding that is within the competence of the Board. I do not believe that it is a fact finding that I would have made, but I cannot say that it was made in a perverse or capricious manner. It was certainly a fact finding based on the material that was before the Board.
[5]At issue, here, are the interpretation and application of subparagraph 29(c)(vi) [s. 29 (c)(ii) (as am. by S.C. 2000, c. 12, s. 108)] and subsection 30(1) of the Employment Insurance Act [S.C. 1996, c. 23]:
29. For the purposes of sections 30 to 33,
. . .
| (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: |
| (i) sexual or other harassment, |
| (ii) obligation to accompany a spouse, common-law partner or dependent child to another residence, |
| (iii) discrimination on a prohibited ground of discrimination within the meaning of the Canadian Human Rights Act, |
| (iv) working conditions that constitute a danger to health or safety, |
| (v) obligation to care for a child or a member of the immediate family, |
| (vi) reasonable assurance of another employment in the immediate future, |
| (vii) significant modification of terms and conditions respecting wages or salary, |
| (viii) excessive overtime work or refusal to pay for overtime work, |
| (ix) significant changes in work duties, |
| (x) antagonism with a supervisor if the claimant is not primarily responsible for the antagonism, |
| (xi) practices of an employer that are contrary to law, |
| (xii) discrimination with regard to employment because of membership in an association, organization or union of workers, |
| (xiii) undue pressure by an employer on the claimant to leave their employment, and |
| (xiv) any other reasonable circumstances that are prescribed. |
30. (1) A claimant is disqualified from receiving any benefits if the claimant lost any employment because of their misconduct or voluntarily left any employment without just cause, unless
| (a) the claimant has, since losing or leaving the employment, been employed in insurable employment for the number of hours required by section 7 or 7.1 to qualify to receive benefits; or |
| (b) the claimant is disentitled under sections 31 to 33 in relation to the employment. |
[6]It is undisputed that the definition of "just cause" within the meaning of subsection 30(1) of the Act is a question of law. To use the words of Pratte J.A. in Tanguay v. Unemployment Ins. Comm. (1985), 10 C.C.E.L. 239 (F.C.A.), at page 242:
It is true that it is sometimes said that the question of whether an employee was justified in leaving his employment is one of fact. However, it is clear that where the question is as to the definition that must be given to the words "just cause" in s. 41(1), this is purely a question of law. It follows that if a decision is made which cannot be reconciled with this definition, the decision is vitiated by an error of law.
However, Pratte J.A. went on, in the same paragraph and in parentheses, to state that in his view the application of the proper definition of "just cause" to a given set of facts was a "matter of opinion" as opposed to a "question of fact":
(However, as the definition attributable to the words "just cause" in s. 41(1) is not so exact that it is always possible to say with certainty whether the employee has left his employment without just cause, cases may arise which may be decided one way or the other without doing injury to the legal concept of "just cause". The question is then said to be one of fact: it would be more correct to say that it is a matter of opinion.)
The whole paragraph was quoted with approval by this Court in Canada (Attorney General) v. Martel (1994), 7 C.C.E.L. (2d) 130 (F.C.A.), at page 137.
[7]The relevant provisions of the Unemployment Insurance Act, 1971 [S.C. 1970-71-72, c. 48] at the time of Tanguay (subsection 41(1)) and of the Unemployment Insurance Act [R.S.C., 1985, c. U-1] at the time of Martel (subsection 28(1)) were not as detailed as they have become throughout the years. They simply stated that a claimant was disqualified if "he voluntarily left his employment without just cause".
[8]"Just cause" was not defined until 1990 (S.C. 1990, c. 40, section 21), when subsection 28(4) of the Unemployment Insurance Act was added. The provision then read:
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 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. |
[9]In 1993 (S.C. 1993, c. 13, section 19), paragraphs (f) to (n) were added to the list of the circumstances enumerated in subsection 28(4):
28. (4) . . .
| (f) reasonable assurance of another employment in the immediate future; |
| (g) significant modification of terms and conditions respecting wages or salary; |
| (h) excessive overtime work or refusal to pay for overtime work; |
| (i) significant changes in work duties; |
| (j) antagonistic relations between an employee and a supervisor for which the employee is not primarily responsible; |
| (k) practices of an employer that are contrary to law; |
| (l) discrimination with regard to employment because of membership in any association, organization or union of workers; |
| (m) undue pressure by an employer on employees to leave their employment; and |
| (n) such other reasonable circumstances as are prescribed. |
[10]With the advent of the Employment Insurance Act in 1996 (S.C. 1996, c. 23), subsection 28(1) was replaced by subsection 30(1) and subsection 28(4) was replaced by paragraph 29(c), with slight alterations which are not relevant for the present purposes.
[11]With the refinement in the formulation of the concept of "just cause" throughout the years, it seems to me that what was originally described as a question of law has become so minutely detailed and adapted to live situations as to become a q uestion of mixed fact and law. I think that in Tanguay, Pratte J.A. had anticipated the difficulty of adhering to the strict concept of error of law when he introduced the notion of "matter of opinion" and recognized that "cases may arise which may be deci ded one way or the other without doing injury to the legal concept of `just cause'". Pratte J.A., in his own simple words, was describing what has now become the standard of review of reasonableness. What he was saying, if we adapt his words to the Housen v. Nikolaisen , [2002] 2 S.C.R. 235 world, was that where, in a question of mixed fact and law, the legal standard to be applied is clearly distinguishable, the standard of review will generally be that of correctness with respect to the definition of the legal standard at issue, and that of reasonableness with respect to the application of that legal standard to the facts of the case.
[12]One must, therefore, correctly determine the legal standard, but once the proper legal standard has been determined, its application may lead to different results all or some of which may be reconcilable with the law. The norm of correctness will apply to the determination of the legal standard, that of reasonableness to its application (see Budhai v. Canada (Attorney General), [2003] 2 F.C. 57 (C.A.), at paragraph 47). When cases arise which may be decided one way or the other without doing injury to, or being irreconcilable with, the legal standard at issue, the decision will withstand judicial review.
[13]The specific legal standard at issue, here, is that of "reasonable assurance of another employment in the immediate future" (subparagraph 29(c )(vi) of the Employment Insurance Act). This specific standard has to be examined in the context of the larger legal standards of "just cause" and "no reasonable alternative to leaving an employment". The principles set out by Pratte J.A. in Tanguay are very much alive. They are summarized in the following often-quoted sentence: the provision pertaining to "just cause" "must be interpreted in accordance with the duty that ordinarily applies to any insured, not to deliberately cause the risk" (at page 244). In this context, the following extract of the reasons for judgment of Lord Justice Donaldson, of the English Court of Appeal, in Crewe v. Social Security Comr, [1982] 2 All ER 745, at page 750:
. . . although the risk of unemployment may arise from his voluntary act in terminating his employment, he may have taken such steps to minimize that risk, by obtaining a promise of immediate fresh employment or by taking steps which may reasonably be expected to lead to such employment. . . [My emphasis.]
which was cited with approval by Pratte J.A. in Tanguay, pages 244-245, is particularly relevant.
[14]The words "reasonable assurance", in context and in their natural meaning, imply some measurable form of guarantee. "Assurance" is defined in Black's Law Dictionary, 7th ed. (St. Paul: West Group, 1999), as "2. A pledge or guarantee", in The Concise Oxford Dictionary , 10th ed. (Oxford: Oxford University Press, 1999), as "1. a positive declaration intended to give confidence" and in the Merriam-Webster On line Dictionary (http://www.merriam-webster.com/cgi-bin /dictionary), as 2b:, "a being certain in the mind". "Assurance", in French, is defined in Le Nouveau Petit Robert , 2000, page 159, as "4. Promesse ou garantie qui rend certain de qqch." and in Le Petit Larousse illustré, 1996, page 97, as "1. . . . certitude, garantie formelle". The use of the word "reasonable" has softened the more stringent meaning otherwise associated with the word "assurance": something short of a formal assurance may qualify as "reasonable assurance".
[15]These words have come under the scrutiny of this Court on many occasions.
[16]In Canada (Attorney General) v. Traynor (1995), 185 N.R. 81 (F.C.A.), this Court found that "the letter, as well as the philosophy and purpose, of th e unemployment insurance scheme" does not allow a claimant to leave her job "with the sole view of improving her situation in the market place" (at paragraph 11). The claimant, in that case, was employed as a grocery clerk in Montréal. She applied for, and was offered, a position in a community dietetic internship program in Kingston, Ontario. This program was a 10-month, full-time, practical training with no classroom component. In the past, interns were paid a stipend from the provincial government, but, due to government cutbacks, the practice was abandoned and the claimant had been informed before leaving Montreal that she would not receive any income during her internship. Absent remuneration, actual or eventual, the Court found, there could not be reasonable assurance of another employment as remuneration was necessary in order for a job to constitute "employment" for the purposes of the Act. As the claimant had not left her position with the expectation of securing "employment" in the near future, she could not fall within the exception provided for in what is now subparagraph 29(c)(vi).
[17]In Canada (Attorney General) v. Lessard (2002), 300 N.R. 354 (F.C.A.), this Court found that when the prospect of obtaining employment is contingent upon the completion of a training course which has not yet started and which is to last 13 weeks, there is no assurance of employment "in the imme diate future" for the purposes of subparagraph 29(c )(vi). The Court, in obiter, expressed the view that it was doubtful that there could "be `reasonable assurance of another employment' . . . when obtaining the employment is conditional on completion of a thirteen-week course which has not yet started" (at paragraph 14). This latter issue was squarely addressed in Canada (Attorney General) v. Shaw , 2002 FCA 325; [2002] F.C.J. No. 1290 (C.A.) (QL), where this Court found that a conditional offer of employment did not constitute a "reasonable assurance of another employment". See also, Canada (Attorney General) v. Laughland (2003), 301 N.R. 331 (F.C.A.), where this Court expressed the view, at paragraph 12, that the purpose of the Employment Insurance scheme "is not to provide employees in unstable employment, who leave their employment without just cause, with benefits while they seek better and more remunerative work".
[18]In the case at bar, absent any offer by the prospective employer, any contact between that employer and the respondent, and any idea as to what the work or the remuneration would be, there is no "assurance" and there is no "employment". We do not even get to the point of asking ourselves whether the assurance of employment was "reasonable".
[19]In the end, the Umpire applied an incorrect standard of review because she held that the question before her was one of fact. The issue, clearly, was one of mixed fact and law. The Umpire should have asked herself if the Board of Referees had properly defined "reasonable assurance" when applying it to the facts. Had she done so, she could only have concluded that the Board of Referees had misconceived the meaning of reasonable assurance. As the question of the proper test t o apply is a question of law (Housen, supra), the Umpire was bound to intervene and to apply the proper test (Budhai, supra, paragraph 48). Had she done so, she would have concluded that the applicant did not have a reasonable assurance of another employment, and the case ought to be decided on that basis.
[20]The application for judicial review should be allowed without costs, the decision of the Umpire set aside and the matter referred back to the Chief Umpire or his delegate to be again decided on the basis that the defendant should be disqualified from receiving benefits because he voluntarily left his employment without just cause.
Desjardins J.A.: I concur.
Pelletier J.A.: I concur.