Employment Insurance (EI)

Decision

[1] The appeal is dismissed.

Overview

[2] On July 2, 2017, the Appellant left his permanent part-time employment for temporary full-time employment. The Canada Employment Insurance Commission (Commission) denied the Appellant Employment Insurance benefits because he had voluntarily left his employment without just cause. The Tribunal must decide whether the Appellant is disqualified from receiving benefits because he voluntarily left his employment without just cause.

Issues

[3] The Appellant admitted that he voluntarily left his employment. There are only two issues:

[4] Did the Appellant have reasonable assurance of another employment in the immediate future?

[5] Are there other circumstances to consider when determining whether the Appellant had just cause for leaving his employment?

[6] Did the Appellant have no reasonable alternative to leaving?

Analysis

[7] The relevant statutory provisions appear in the annex of this decision.

[8] A claimant is disqualified from receiving any benefits if the claimant voluntarily left any employment without just cause.

[9] A person has just cause for leaving their employment if, having regard to all the circumstances, including those listed in section 29(c) of the Employment Insurance Act (Act), there were no reasonable alternatives to leaving (Green v Canada (Attorney General), 2012 FCA 313). Therefore, the claimant must not have [translation] “other reasonable alternatives to leaving their employment” (Astronomo v Canada (Attorney General), A-141-97).

[10] The claimant is responsible for proving, on a balance of probabilities, that they had just cause for leaving (Chaoui v Canada (Attorney General), 2005 FCA 66; Canada (Attorney General) v White, 2011 FCA 190).

Did the Appellant have reasonable assurance of another employment in the immediate future?

[11] The Appellant argued that he left his part-time employment for full-time employment. This situation is referred to in section 29(c) of the Act about the reasonable assurance of another employment in the immediate future.

[12] The Federal Court of Appeal clarified the special nature of this section because these circumstances will come into being “solely through the will of the claimant,” whereas the other circumstances in section 29(c) of the Act assume intervention by a third party (Canada (Attorney General) v Langlois, 2008 FCA 18). As a result, the Claimant’s situation must be analyzed based on the principles and objectives of the employment insurance plan.

[13] The expression “reasonable assurance” implies a measurable form of guarantee. In fact, the very definition of assurance implies a pledge or guarantee of something. By combining assurance with the notion of “reasonable,” Parliament has softened the test, making it less formal (Canada (Attorney General) v Sacrey, 2003 FCA 377).

[14] Therefore, to have reasonable assurance of employment in the immediate future, a claimant must know what the potential employment is and the identity of their future employer (Canada (Attorney General) v Imran, 2008 FCA 17).

[15] Furthermore, the Federal Court of Appeal determined that the fact that a claimant left their employment for employment on an on-call basis involves by necessity the claimant being unemployed between calls (Canada (Attorney General) v Langevin, 2011 FCA 163).

[16] The notion of employment referred to in section 29(c)(vi) of the Act does not necessarily refer to permanent employment and may be seasonal (Canada (Attorney General) v Langlois, 2008 FCA 18).

[17] The Appellant left his permanent part-time employment for temporary full-time employment to improve his situation. The full-time employment guaranteed him 40 hours of work per week in his field of study with a better salary than that of the part-time employment.

[18] However, the Appellant knew that his contract for full-time employment would end at the end of August 2017.

[19] According to the Commission, the Appellant left permanent employment for contract employment. By acting this way, the Appellant placed himself in a position of unemployment.

[20] The Tribunal is of the view that the Appellant had reasonable assurance of another employment in the immediate future.

[21] The Appellant began full-time employment on June 19, 2017, and left his part-time employment on July 2, 2017. As a result, the Appellant was already working when he left his part-time employment. The Appellant therefore knew for whom he would be working and the type of employment he would have (Imran, supra).

[22] When analyzing the only reasonable alternative, the Tribunal will consider the fact that the Appellant had reasonable assurance of another employment.

Are there other circumstances to consider when determining whether the Appellant had just cause for leaving his employment?

[23] First, the Appellant’s representative argued that he had left his employment because a designated authority referred him to a training program (section 25 of the Act).

[24] The Appellant explained to the Tribunal that, before graduating from high school, he met with the guidance counsellor to find out about development opportunities based on his skills. The counsellor suggested two fields of study, one of which he enrolled in. The Appellant was to begin his training on September 5, 2017.

[25] The Appellant’s representative submitted an excerpt from Section 8 of Chapter 6 of the Digest of Benefit Entitlement Principles (GD7-2 and 3). This section reminds readers that the list of circumstances in section 29(c) of the Act is not exhaustive and that other grounds from case law must be considered. One of those grounds is taking a course of instruction starting within a short term at the request of a designated authority.

[26] The Appellant’s representative interpreted “designated authority” to include the guidance counsellor at the Appellant’s high school. According to the Appellant’s representative, the guidance counsellor is employed by the province’s ministry of education, and she referred the Appellant to the training program.

[27] However, the Tribunal cannot accept the interpretation the Appellant has proposed because the Commission must designate the authority in question (section 25(1) of the Act). Therefore, for a person to be referred by a designated authority, the Commission must first have designated the authority in question (section 25(1) of the Act). In this case, the evidence does not show that the Commission designated the guidance counsellor. As a result, the Tribunal cannot accept the Appellant’s argument that a designated authority referred him.

[28] Next, the Appellant’s representative considers it illogical that the Commission is refusing Employment Insurance benefits, even though the provincial government of New Brunswick signed an agreement with the federal government to help young people leaving school. There is indeed a program called the New Brunswick Employment Insurance (NB-EI) Connect Program, which offers individuals who are entitled to Employment Insurance benefits the opportunity to continue to receive regular benefits for the duration of their claim while attending an approved training program (GD8-29). To be eligible for the NB-EI Connect Program, the person must be enrolled in a full-time training program that will increase their skills and help them find sustainable employment. They must also be entitled to Employment Insurance regular benefits.

[29] According to the Appellant’s representative, the Appellant was not eligible for this program because he was not entitled to Employment Insurance benefits (GD8-29 and following; GD9-3 and 4).

[30] The Tribunal understands that the Appellant may find the Commission’s actions illogical. However, one eligibility requirement for that program is entitlement to Employment Insurance benefits, which the Commission had already denied him (GD9). What is more, the Tribunal does not have the power to intervene concerning eligibility for the NB-EI Connect Program. The Tribunal must simply determine whether the Appellant should be disqualified from receiving Employment Insurance benefits because he left his part-time employment without just cause. The Tribunal must determine whether the Appellant had no reasonable alternative to leaving his employment in his situation.

[31] The Tribunal accepts no other applicable circumstance on file.

Did the Appellant have no reasonable alternative to leaving?

[32] The Tribunal is of the view that leaving was not the Appellant’s only reasonable alternative.

[33] Firstly, the Appellant did not have just cause for leaving his employment because he caused his unemployment situation. The facts in this file resemble those of Langlois (supra) in which the claimant left his permanent employment for more gainful seasonal employment. The Federal Court of Appeal determined that the claimant could leave permanent employment for seasonal employment if, having regard to all the circumstances, he had just cause for leaving his employment. The Federal Court of Appeal made a number of determinations, including that the time of the voluntary leaving and the amount of time remaining in the seasonal employment contract are circumstances that should be considered. The Tribunal must therefore consider the fact that the Appellant left his employment two months before beginning a training program, knowing that his contract would last just two months.

[34] Therefore, by leaving permanent employment for a contract with a planned duration of two months, the Appellant created his unemployment situation, despite the fact that the Appellant wanted to improve his financial situation.

While it is legitimate for a worker to want to improve his life by changing employers or the nature of his work, he cannot expect those who contribute to the employment insurance fund to bear the cost of that legitimate desire. This applies equally to those who decide to go back to school to further their education or start a business and to those who simply wish to earn more money (Langlois, supra).

[35] The Appellant therefore voluntarily placed himself in a situation where he would be forcing contributors to pay him benefits. This situation is in direct conflict with the purpose of the Act.

[36] Therefore, the Appellant’s motivation of improving his financial situation constitutes good cause but is not just cause for leaving his employment (Attorney General of Canada v Martel, A-1691-92; Canada (Attorney General) v Graham, 2011 FCA 311).

[37] The purpose of the Act is to compensate workers who are involuntarily unemployed (Canada Employment and Immigration Commission v Gagnon, [1988] 2 SCR 29. Therefore, to receive Employment Insurance benefits, a claimant cannot provoke the risk of unemployment (Langlois, supra).

[38] Secondly, the Tribunal is of the view that the Appellant should have asked the employer at his part-time employment for unpaid leave to avoid being in a situation of unemployment once his full-time contract ended. The Appellant could have returned to working part-time at the end of his full-time contract.

[39] The Appellant told the Tribunal that he just did not think of asking for unpaid leave. Furthermore, the Appellant did not intend to work during his training and would have left his part-time employment anyway. The Appellant lived with his parents about 45 minutes away by car from his school. He therefore did not have time to work.

[40] The Appellant failed to meet his burden of proving that leaving was the only reasonable alternative (Chaoui, supra; White, supra). As a result, the Appellant failed to show that he had just cause for leaving his employment (Green, supra; Astronomo, supra).

Conclusion

[41] The appeal is dismissed.

Annex

The law

Employment Insurance Act

1. 29 For the purposes of sections 30 to 33,
   1. (a) employment refers to any employment of the claimant within their qualifying period or their benefit period;
   2. (b) loss of employment includes a suspension from employment, but does not include loss of, or suspension from, employment on account of membership in, or lawful activity connected with, an association, organization or union of workers;
   3. (b.1) voluntarily leaving an employment includes
      1. (i) the refusal of employment offered as an alternative to an anticipated loss of employment, in which case the voluntary leaving occurs when the loss of employment occurs,
      2. (ii) the refusal to resume an employment, in which case the voluntary leaving occurs when the employment is supposed to be resumed, and
      3. (iii) the refusal to continue in an employment after the work, undertaking or business of the employer is transferred to another employer, in which case the voluntary leaving occurs when the work, undertaking or business is transferred; and
   4. (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:
      1. (i) sexual or other harassment,
      2. (ii) obligation to accompany a spouse, common-law partner or dependent child to another residence,
      3. (iii) discrimination on a prohibited ground of discrimination within the meaning of the Canadian Human Rights Act,
      4. (iv) working conditions that constitute a danger to health or safety,
      5. (v) obligation to care for a child or a member of the immediate family,
      6. (vi) reasonable assurance of another employment in the immediate future,
      7. (vii) significant modification of terms and conditions respecting wages or salary,
      8. (viii) excessive overtime work or refusal to pay for overtime work,
      9. (ix) significant changes in work duties,
      10. (x) antagonism with a supervisor if the claimant is not primarily responsible for the antagonism,
      11. (xi) practices of an employer that are contrary to law,
      12. (xii) discrimination with regard to employment because of membership in an association, organization or union of workers,
      13. (xiii) undue pressure by an employer on the claimant to leave their employment, and
      14. (xiv) any other reasonable circumstances that are prescribed.
2. 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
   1. (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
   2. (b) the claimant is disentitled under sections 31 to 33 in relation to the employment.
3. (2) The disqualification is for each week of the claimant’s benefit period following the waiting period and, for greater certainty, the length of the disqualification is not affected by any subsequent loss of employment by the claimant during the benefit period.
4. (3) If the event giving rise to the disqualification occurs during a benefit period of the claimant, the disqualification does not include any week in that benefit period before the week in which the event occurs.
5. (4) Notwithstanding subsection (6), the disqualification is suspended during any week for which the claimant is otherwise entitled to special benefits.
6. (5) If a claimant who has lost or left an employment as described in subsection (1) makes an initial claim for benefits, the following hours may not be used to qualify under section 7 or 7.1 to receive benefits:
   1. (a) hours of insurable employment from that or any other employment before the employment was lost or left; and
   2. (b) hours of insurable employment in any employment that the claimant subsequently loses or leaves, as described in subsection (1).
7. (6) No hours of insurable employment in any employment that a claimant loses or leaves, as described in subsection (1), may be used for the purpose of determining the maximum number of weeks of benefits under subsection 12(2) or the claimant’s rate of weekly benefits under section 14.
8. (7) For greater certainty, but subject to paragraph (1)(a), a claimant may be disqualified under subsection (1) even if the claimant’s last employment before their claim for benefits was not lost or left as described in that subsection and regardless of whether their claim is an initial claim for benefits.