Clow v. Canada (Attorney General)

Clow v. Canada (Attorney General) Court (s) Database Federal Court of Appeal Decisions Date 2004-12-17 Neutral citation 2004 FCA 439 File numbers A-260-04 Decision Content Date: 20041217 Docket: A-260-04 Citation: 2004 FCA 439 CORAM: DÉCARY J.A. ROTHSTEIN J.A. MALONE J.A. BETWEEN: DONNA CLOW Applicant and ATTORNEY GENERAL OF CANADA (Employment Insurance Commission) Respondent Heard at Calgary, Alberta, December 16, 2004. Judgment delivered at Calgary, Alberta, December 17, 2004. REASONS FOR JUDGMENT BY DÉCARY J.A. CONCURRED IN BY: ROTHSTEIN J.A. MALONE J.A. Date: 20041217 Docket: A-260-04 Citation: 2004 FCA 439 CORAM: DÉCARY J.A. ROTHSTEIN J.A. MALONE J.A. BETWEEN: DONNA CLOW Applicant and ATTORNEY GENERAL OF CANADA (Employment Insurance Commission) Respondent REASONS FOR JUDGMENT DÉCARY J.A. [1] The Applicant had voluntarily terminated her employment in Ontario in order to move closer to her partner who she claims to be her common-law spouse. Her partner had been detained in a federal penitentiary in Ontario but had been transferred to the penitentiary in Drumheller, Alberta. At the time of her move Ms. Clow had not inquired about job opportunities in Alberta, and she remained unemployed for some four months. She filed an application for unemployment insurance benefits which was denied, the Commission being of the view that she did not have "just cause" to terminate her employment pursuant to paragraph 29(c) of the Employment Insurance Act. [2] The Applicant appealed to the Board of Referees, which dismissed her appeal. She then appealed to an Umpire, who again dismissed her appeal. She then sought reconsideration of the Umpire's decision, but the Umpire found that there were no new facts within the meaning of s. 120 of the Act and he refused to reconsider his decision. [3] The decision which is the object of this judicial review application is the reconsideration decision. It is well settled in the case law that the Court will only review the reconsideration decision and will not while doing so re-examine the original decision. In the case at bar the Umpire found that there were no new facts (see Canada (Attorney General) v. Chan, (1994) 178 N.R. 372 (F.C.A.). That finding was open to him on the record and his decision can simply not be questioned. [4] I will add, because the Applicant seems to be of the view that she was treated unjustly by the Commission, that even had she sought judicial review of the Umpire's original decision, she would not have succeeded. The Board of Referees, amongst other things, found that "there was no urgency in the claimant moving to Alberta" and that "the claimant did not conduct a reasonable search for employment prior to voluntarily leaving her position". These findings support the Board's conclusion that the Applicant had not established that she had no reasonable alternative to leaving her employment. The Applicant relies on the decision of this Court in Canada (Attorney General) v. Dueck, [1996], F.C.J. No. 1718 (QL) (F.C.A.), aff. CUB 33865 but in that case the claimant had stayed in Saskatoon a further nine months before moving to Moncton to rejoin and marry her fiancé. All cases are to be assessed on their particular facts. [5] This application for judicial review should therefore be dismissed with costs. "Robert Décary" J. A. "I agree Marshall Rothstein J.A." "I agree Brian D. Malone" FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-260-04 STYLE OF CAUSE: Donna Clow v. Attorney General of Canada (Employment Insurance Commission) PLACE OF HEARING: Calgary, Alberta DATE OF HEARING: December 16, 2004 REASONS FOR JUDGMENT BY: DÉCARY J.A. CONCURRED IN BY: ROTHSTEIN J.A. MALONE J.A. DATED: December 17, 2004 APPEARANCES: Ms. Donna Clow FOR THE APPLICANT Ms. Marta E. Burns FOR THE RESPONDENT SOLICITORS OF RECORD: Ms. Donna Clow Hilda, Alberta FOR THE APPLICANT Morris Rosenberg Deputy Attorney General of Canada FOR THE RESPONDENT