A-694-96
QUÉBEC, QUEBEC, THIS 30th DAY OF APRIL 1997
CORAM: THE HONOURABLE MR. JUSTICE HUGESSEN
THE HONOURABLE MR. JUSTICE DÉCARY
THE HONOURABLE DEPUTY JUSTICE CHEVALIER
BETWEEN: ATTORNEY GENERAL OF CANADA,
Applicant,
- AND -
FRANCIS RACINE,
Respondent.
J U D G M E N T
The application is allowed, the decision of the Umpire is set aside and the matter is referred back to an umpire to be designated by the Chief Umpire with instructions to dismiss the Commission's appeal and restore the decision of the board of referees.
James K. Hugessen
J.A.
Certified true translation
C. Delon, LL.L.
A-694-96
CORAM: THE HONOURABLE MR. JUSTICE HUGESSEN
THE HONOURABLE MR. JUSTICE DÉCARY
THE HONOURABLE DEPUTY JUSTICE CHEVALIER
BETWEEN: ATTORNEY GENERAL OF CANADA,
Applicant,
- AND -
FRANCIS RACINE,
Respondent.
Hearing held at Québec, Quebec, on Wednesday, April 30, 1997.
Judgment delivered from the bench on April 30, 1997.
REASONS FOR JUDGMENT OF THE COURT BY: DÉCARY J.A.
A-694-96
CORAM: THE HONOURABLE MR. JUSTICE HUGESSEN
THE HONOURABLE MR. JUSTICE DÉCARY
THE HONOURABLE DEPUTY JUSTICE CHEVALIER
BETWEEN: ATTORNEY GENERAL OF CANADA,
Applicant,
- AND -
FRANCIS RACINE,
Respondent.
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the bench at Québec
on Wednesday, April 30, 1997)
DÉCARY J.A.
Before July 3, 1994, it was settled that a person who voluntarily left employment to go back to school, even with authorization from the employer, had left without just cause and was therefore precluded from receiving benefits under the provisions of section 28 of the Unemployment Insurance Act.
On July 3, 1994, section 28.2, which reads as follows, came into force:
| 28.2(1) Notwithstanding section 28, a claimant who voluntarily takes a period of leave from his or her employment without just cause is deemed not to have voluntarily left that employment without just cause within the meaning of that section if, before or after the beginning of the period of leave, |
| (a) the period of leave was authorized by the employer; and |
| (b) the claimant and the employer agreed as to the day on which the claimant would resume employment. |
| (2) A claimant described in subsection (1) is not entitled to receive benefit until |
| (a) the claimant resumes employment; |
| (b) the claimant loses or voluntarily leaves his or her employment; or |
| (c) the claimant, after the beginning of the period of leave, accumulates with another employer the number of weeks of insurable employment required under section 6 in order to qualify to receive benefit under this Act. |
This section is apparently intended to assist claimants such as the respondent who voluntarily take a period of leave with authorization from their employer, provided that there is an agreement with respect to the date the person would resume employment. These claimants are not precluded from receiving benefits; they are simply declared to be disentitled until such time as the applicable requirement of subsection 28.2(2) is met.
Because section 28.2 unquestionably applies in this instance, the Umpire was wrong to rely on section 28 and so conclude, also wrongly, that going back to school was just cause within the meaning of that section.
There are therefore grounds for intervening. The Employment and Immigration Commission correctly determined that the respondent was disentitled for the period agreed upon for his leave: September 1, 1994, to March 1, 1995. The board of referees, apparently on the basis of the evidence that the respondent had terminated his leave prematurely, found [translation] "that the date of the claimant's return to work was December 17, 1994" and accordingly decided that the respondent's disentitlement terminated on that date. This finding of fact is unassailable and the Umpire could not have done otherwise than confirm it.
Counsel for the Commission argued that the words "reprise de son emploi" in paragraph 28.2(2)(a) necessarily referred to the claimant's employment before his authorized leave. We are not certain that this position is supported by the English version, "resumes employment", but it is not necessary for us to express an opinion on this point in the instant case.
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 an umpire to be designated by the Chief Umpire for redetermination, with instructions to dismiss the Commission's appeal and restore the decision of the board of referees.
Robert Décary
J.A.
Certified true translation
C. Delon, LL.L.
Federal Court of Canada
Court file No. A-694-96
BETWEEN:
ATTORNEY GENERAL OF CANADA,
Applicant,
- AND -
FRANCIS RACINE,
Respondent.
REASONS FOR JUDGMENT OF THE COURT
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO: A-694-96
STYLE OF CAUSE: ATTORNEY GENERAL OF CANADA,
Applicant,
- AND -
FRANCIS RACINE,
Respondent.
PLACE OF HEARING: Québec
REASONS FOR JUDGMENT
OF THE COURT BY: The Honourable Mr. Justice Hugessen
The Honourable Mr. Justice Décary
The Honourable Deputy Justice Chevalier
DATED: April 30, 1997
APPEARANCES:
Carole Bureau For the applicant
Francis Racine For the respondent
SOLICITORS OF RECORD:
Carole Bureau
DEPARTMENT OF JUSTICE
200 boul. René Lévesque Ouest
East Tower, 5th floor
Montréal, Quebec
H2Z 1X4 For the applicant
Francis Racine
58 rue Beauvigny
Beauport, Quebec
G1E 5X4 For the respondent