A-800-80
Attorney General of Canada (Applicant)
v.
Maria Moura (Respondent)
Court of Appeal, Heald and Ryan JJ. and
MacKay D.J.—Toronto, October 1 and 2, 1981.
Judicial review — Unemployment insurance — Application
to review and set aside Chief Umpire's decision not to dis
qualify the respondent from receiving benefits on the basis that
s. 40(1) of the Unemployment Insurance Act, 1971 does not
apply — Respondent was offered part-time employment which
she refused on the ground that the proposed weekly earnings
could not cover her expenses — The Chief Umpire held that
she acted in 'good faith" in refusing to accept the offer —
Whether the reasons advanced by the respondent for her
refusal constitute "good cause" within the meaning of s. 40(1)
— Whether the employment was "suitable employment" pur
suant to s. 40(1) — Unemployment Insurance Act, 1971, S.C.
1970-71-72, c. 48, s. 40(1),(2),(3) — Federal Court Act, R.S.C.
1970 (2nd Supp.), c. 10, s. 28.
This is an application to review and set aside the decision of
the Chief Umpire not to disqualify the respondent from receiv
ing benefits for a three-week period on the basis that section
40(1) of the Unemployment Insurance Act, 1971, whereby a
claimant is disqualified from receiving benefits if, after becom
ing aware of an opportunity for suitable employment, he has
without good cause, refused, failed to apply or to accept an
offer of such employment, does not apply in this case. The
respondent was offered part-time employment for four hours
per day, four days a week at $3.50 per hour. She argues that
those weekly earnings cannot cover her expenses. The Chief
Umpire held that she acted in "good faith" in refusing to
accept the offer. The issues are whether the reasons advanced
by the respondent for refusing the offer constitute "good cause"
and whether the employment was "suitable employment"
within the meaning of section 40(1).
Held, the application is allowed. The Chief Umpire erred in
deciding that the central issue was whether the respondent
acted in "good faith" in refusing the part-time offer of employ
ment. He should have directed himself to the question as to
whether the respondent refused the part-time offer for "good
cause". Section 40(1) uses the words "good cause" as opposed
to "good faith". A claimant can act in good faith but still not
have "good cause" for his or her action. As to the second issue,
its determination is unnecessary since unsuitability of employ
ment from the perspective of conditions of employment is
neither asserted nor established.
APPLICATION for judicial review.
COUNSEL:
Thomas L. James for applicant.
Maria Moura on her own behalf.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Maria Moura on her own behalf.
The following are the reasons for judgment
rendered in English by
HEALD J.: This is a section 28 application to
review and set aside a decision of the Chief
Umpire under the Unemployment Insurance Act,
1971, S.C. 1970-71-72, c. 48. On May 11, 1979
the respondent voluntarily quit her job as a
machine operator. On July 9, 1979 she left
Canada for a vacation. She returned to Canada on
September 13, 1979, at which time she renewed
her claim for benefit. She drew benefit for 19
weeks until January 26, 1980. On January 21,
1980, the respondent was offered a part-time job
as a counter clerk at Home Harmony for four
hours per day and for four days per week at $3.50
per hour with the possibility that the number of
hours per week could increase if the employer's
business warranted it. On these facts, the Commis
sion disqualified the respondent for a three-week
period pursuant to the provisions of subsection
40(1) of the Act.' The notice of disqualification
sent by the Commission to the respondent stated,
inter alia, as follows (see Case, page 14):
' Section 40 of the Act reads as follows:
40. (1) A claimant is disqualified from receiving benefits
under this Part if without good cause since the interruption
of earnings giving rise to his claim
(a) he has refused or has failed to apply for a situation in
suitable employment that is vacant after becoming aware
that such situation is vacant or becoming vacant, or has
failed to accept such a situation after it has been offered to
him;
(b) he has neglected to avail himself of an opportunity for
suitable employment;
(c) he has failed to carry out any written direction given to
him by an officer of the Commission with a view to
assisting him to find suitable employment, if the direction
was reasonable having regard both to his circumstances
and to the usual means of obtaining that employment;
(d) he has failed to attend an interview that the Commis
sion has directed him to attend pursuant to section 107; or
(e) he has failed to attend a course of instruction or
training to which he was referred by such authority as the
Commission designates in order that he become or keep fit
for entry into or return to employment.
(2) For the purposes of this section, but subject to subsec
tion (3), employment is not suitable employment for a claim
ant if it is
(a) employment arising in consequence of a stoppage of
work attributable to a labour dispute;
(b) employment in his usual occupation either at a lower
rate of earnings or on conditions less favourable than those
On the information which has been presented in connection
with your claim for benefit, you are disqualified under Section
40(1) of the Unemployment Insurance Act. This section of the
Act provides that a claimant shall be disqualified from receiv
ing benefit if after becoming aware of an opportunity for
suitable employment, he has without good cause, refused, failed
to apply or to accept an offer of such employment.
Under Section 40(1) of the Act, good cause is considered to be
established, if, under all the circumstances, a claimant acts
prudently in a manner which a person will normally be expect
ed to follow in like circumstances.
In your case, you were aware of a situation in suitable employ
ment with Home Harmony.
On the basis of the evidence, it is considered that, without good
cause, you have refused, failed to apply for or to accept this
situation when you became aware of it and benefit is therefore
suspended for the first 3 weeks for which benefit would other
wise be payable. Benefit will be deemed to have been paid for
such weeks which has the effect of reducing your potential
entitlement by 3 weeks.
The respondent appealed that disqualification to
a Board of Referees for the following reasons (see
Case, page 16):
I don't agree with the disqualification. I am not looking for a
part time job I want a full time job—Home Laundry [sic]
offered me 4 hrs per day 4 days per week 16 hrs per week are
not enough money to cover my expenses.
Before the Board of Referees the respondent made
the following additional comments:
The appellant explained today explained [sic] that she would,
in reality, be losing money if she took the part-time job at $3.50
per hour, four hours a day, four days a week, she would receive
$56.00. Out of this, $35.00 would be paid to a babysitter; she
had to use public transportation approx. $5.00 per week, which
would leave her with $16.00 per week. She simply did not feel it
was beneficial to work for $16.00.
observed by agreement between employers and employees,
or in the absence of any such agreement, than those
recognized by good employers; or
(c) employment of a kind other than employment in his
usual occupation either at a lower rate of earnings or on
conditions less favourable than those that he might reason
ably expect to obtain, having regard to those conditions
that he habitually obtained in his usual occupation, or
would have obtained had he continued to be so employed.
(3) After a lapse of a reasonable interval from the date on
which an insured person becomes unemployed, paragraph (c)
of subsection (2) does not apply to the employment described
therein if it is employment at a rate of earnings not lower and
on conditions not less favourable than those observed by
agreement between employers and employees or, in the
absence of any such agreement, than those recognized by
good employers.
The Board of Referees unanimously agreed with
the respondent's position deciding as follows:
The Board agrees that these weekly earnings are indeed inade
quate and concurs that this employment is unsuitable to the
appellant. For these reasons the Board considers that the
appellant has good cause to refuse, failed to apply for or to
accept a situation of suitable employment with Home Harmony
on January 21, 1980.
The Commission appealed this decision to an
Umpire. The Chief Umpire dismissed the Com
missioner's appeal and reaffirmed the unanimous
decision of the Board of Referees. In his reasons,
the learned Chief Umpire expressed the view that:
The essence of the Judgment which must be made, it seems to
me, is whether the claimant acts in good faith in seeking
re-employment, in being available for work and, in fact, in
accepting re-employment when it is offered. [Case, page 24.]
Then, after quoting subsections 40(1) and 40(3),
he went on to say (Case, pages 24 and 25):
The use of the word "suitable" in section 40(1) and the phrases
"reasonable interval", "a rate of earnings not lower" and
"conditions not less favourable" in section 40(3) all call for
Judgments which are, partly at least, subjective in nature and
which bring into play matters of credibility and sincerity of the
claimant. In my opinion, these are the kinds of judgments that
the Board of Referees are entirely competent to make, especial
ly since they are able to rely on knowledge and experience in
the community, which is not available to me. In this case, I am
satisfied that the Board of Referees examined all the appropri
ate testimony and gave careful consideration to submissions on
both sides, after which they came to the unanimous conclusion
that the claimant acted in good faith in refusing to accept the
offer of re-employment. There is neither legal or factual justifi
cation in the presentation before me to disturb the unanimous
finding of the Board of Referees, a finding which was entirely
in their competence, and this appeal is therefore dismissed.
With respect, I am unable to agree that the ques
tion of the respondent's "credibility", "sincerity",
or "good faith" is an issue in this application.
It seems to me that this case raises two issues:
(1) were the reasons advanced by the respondent
for refusing the offer of part-time employment,
"good cause" within the meaning of subsection
40(1) supra?; and
(2) was the employment "suitable employment"
as that term is used in subsection 40(1), having
regard to the provisions of subsections (2) and (3)
of section 40?
Dealing initially with the second question posed
supra, it was the submission of the applicant's
counsel that the "conditions not less favourable
.." referred to in subsection (3) of section 40
relate to the conditions of employment and cannot
relate to the subjective circumstances or conditions
of a particular claimant and that, in this case,
there was no evidence that the conditions of
employment of the job offered to this respondent
were "less favourable" than those offered by
agreement between employers and employees, or,
in the absence of any such agreement, than those
recognized by good employers. As I interpret the
position of the respondent, she is not alleging that
the preferred employment was "unsuitable", from
the point of view of conditions of employment. She
simply says that she wants a full-time job and that
this part-time job will not pay her enough money
to cover her expenses. Thus, in my view, the
determination of this issue in this case is unneces
sary since unsuitability of employment from the
perspective of conditions of employment is neither
asserted nor established.
I turn now to the first issue set forth supra. In
my view, this is the central issue in the case. After
perusal of the reasons of the learned Chief
Umpire, I have the view that he erred in deciding
that the central issue was whether the respondent
acted in "good faith" in refusing the part-time
offer of employment. In my opinion, he should
have directed himself to the question as to whether
the respondent refused the part-time offer for
"good cause". Subsection 40(1) uses the words
"good cause" as opposed to "good faith". A claim
ant can act in good faith but still not have "good
cause" for his or her action. This is the issue which
requires determination here, but, in my view, it has
not been determined thus far.
Accordingly, I would allow the section 28
application, set aside the decision of the Chief
Umpire and refer the matter back to an Umpire
for redetermination on the basis that the sole issue
to be determined is whether the respondent, on the
facts of this case, had established "good cause" to
refuse the offer of part-time employment made by
Home Harmony.
* * *
RYAN J.: I agree.
* * *
MACKAY D.J.: I agree.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.