Canada (Attorney General) v. King

Canada (Attorney General) v. King Court (s) Database Federal Court of Appeal Decisions Date 2005-06-21 Neutral citation 2005 FCA 240 File numbers A-387-04 Decision Content Date: 20050621 Docket: A-387-04 Citation: 2005 FCA 240 CORAM: RICHARD C.J. DÉCARY J.A. NOËL J.A. BETWEEN: ATTORNEY GENERAL OF CANADA Applicant and GENEVIEVE KING Respondent Heard at St. John's, Newfoundland and Labrador, on June 21, 2005. Judgment delivered from the Bench at St. John's, Newfoundland and Labrador, on June 21, 2005. REASONS FOR JUDGMENT OF THE COURT BY: NOËL J.A. Date: 20050621 Docket: A-387-04 Citation: 2005 FCA 240 CORAM: RICHARD C.J. DÉCARY J.A. NOËL J.A. BETWEEN: ATTORNEY GENERAL OF CANADA Applicant and GENEVIEVE KING Respondent REASONS FOR JUDGMENT OF THE COURT (Delivered from the Bench at St. John's, Newfoundland and Labrador, on June 21, 2005) NOËL J.A. [1] This is an application for judicial review by the Canada Employment Insurance Commission from a decision of an Umpire allowing the respondent's appeal from a decision of a Board of Referees. The Umpire found that the respondent had "just cause" within the meaning of the Employment Insurance Act, S.C. 1996, c.23 (the Act) for leaving her employment due to a modification in terms of wages that resulted from a mistake on a pay cheque. [2] The Board of Referees found that the respondent left her job because she did not get the wage increase which had been promised. The Board further found that the employer had made a mistake in calculating the respondent's pay and that this mistake would have been corrected had the employer been notified. The Board of Referees was of the view that the respondent voluntarily left her employment without "just cause". [3] The respondent brought an appeal to the Umpire. In allowing the appeal, the Umpire held that the Board of Referees failed to properly apply subparagraph 29(c)(vii) of the Act to the facts of this case. He found that while the respondent initially took the decision to leave her job, the onus was on the employer to rectify the situation since the employer's mistake amounted to a dismissal that in turn prompted the respondent's resignation. Decision [4] There was clear evidence to show that the respondent voluntarily left her employment, and that she did so without attempting to clarify the discrepancy in her pay cheque with her employer. [5] Given this evidence, the decision of the Board of Referees that the claimant left her employment without just cause was reasonable. Had the Umpire applied the proper test (reasonableness), he would have been bound to conclude, like the Board before him, that the reasonable alternative to leaving her employment was for the claimant to discuss the matter with her employer (see Canada (Attorney General) v. Peace, 2004 FCA 56). [6] The application for judicial review will therefore be allowed, the decision of the Umpire will be set aside and the matter will be referred to the Chief Umpire or to his designate for a new determination on the basis that the appeal from the decision of the Board of Referees be dismissed. "Marc Noël" J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-387-04 STYLE OF CAUSE: ATTORNEY GENERAL OF CANADA v. GENEVIEVE KING PLACE OF HEARING: St. John's, Newfoundland and Labrador DATE OF HEARING: June 21, 2005 REASONS FOR JUDGMENT OF THE COURT: RICHARD C.J. DÉCARY J.A. NOËL J.A. DELIVERED FROM THE BENCH BY: NOËL J.A. DATED: June 21, 2005 APPEARANCES: Ms. Susan Inglas For the Applicant Ms. Genevieve King Respondent on her own behalf SOLICITORS OF RECORD: John H. Sims, Q.C. For the Applicant Deputy Attorney General of Canada Ottawa, Ontario Ms. Genevieve King Respondent on her own behalf Templeman, NL