A-878-82
Attorney General of Canada (Applicant)
v.
Lydia Dodsworth (Respondent)
Court of Appeal, Heald, Urie and Mahoney JJ.—
Winnipeg, May 23 and 25, 1984.
Unemployment Insurance — Respondent quitting job to
follow husband to new job on Indian reserve — Few employ
ment opportunities as status Indians given first chance at jobs,
nearest community 15 to 22 miles away and respondent unable
to arrange transportation — Respondent disentitled to benefit
immediately under s. 25(a) of the Act as not available for work
— Board of Referees finding respondent available for work —
Umpire holding claimant entitled to reasonable period, fixed
at 2 months, in which to seek employment — Applicant
contending where no real prospect of employment, no time
reasonable period — As matter of public policy, where claim
ant moving to preserve family unit, move to be regarded as
made without option — Loss of employment and lack of
employment opportunity beyond respondent's control and not
to be immediately treated as not proving availability for work
— Application to review Umpire's decision dismissed —
Claimant to be permitted real opportunity to find work —
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28 —
Unemployment Insurance Act, 1971, S.C. 1970-71-72, c. 48, s.
25(a) (as am. by S.C. 1976-77, c. 54, s. 36).
CASE JUDICIALLY CONSIDERED
DISTINGUISHED:
CUB-3978.
COUNSEL:
Donald J. Rennie for applicant.
No one appearing for respondent.
SOLICITORS :
Deputy Attorney General of Canada for
applicant.
RESPONDENT ON HER OWN BEHALF:
Lydia Dodsworth, Fort Severn.
The following are the reasons for judgment
rendered in English by
MAHONEY J.: The respondent quit her job as a
kitchen helper at a restaurant in Brantford,
Ontario, on September 17, 1981, to accompany
her husband, a school teacher, who had accepted a
job at Osnaburgh House, Ontario. Osnaburgh
House is located on an Indian reserve 178 kilome
ters northeast of Red Lake. Status Indians resident
on the reserve had priority to accept any employ
ment opportunities. The nearest community where
the respondent might reasonably have expected to
obtain employment was Pickle Lake, variously said
to have been 15 to 22 miles distant. The respon
dent said she could not arrange transportation to
Pickle Lake. She placed no unreasonable condi
tions on her acceptance of any job offered in terms
of type of employment, rate of pay, or hours of
work.
The respondent made an initial claim for benefit
September 30, 1981. By notice dated November
12, 1981, benefit was suspended by reason of her
failure to reply to a demand for information and,
after she had replied, by notice dated December
10, 1981, she was retroactively disentitled to bene
fit from September 20, 1981, pursuant to para
graph 25(a) of the Unemployment Insurance Act,
1971.'
25. A claimant is not entitled to be paid initial benefit for
any working day in a benefit period for which he fails to prove
that he was either
(a) capable of and available for work and unable to obtain
suitable employment on that day ...
The Board of Referees found, as a matter of
fact, that the respondent was available for work
within the contemplation of paragraph 25(a). It
allowed her appeal. The Umpire allowed the Com
mission's appeal in part, holding that the respond
ent ought to have been given a reasonable period,
which he fixed at two months, in which to seek to
find suitable employment before the disentitlement
was imposed.
S.C. 1970-71-72, c. 48 (as am. by S.C. 1976-77, c. 54, s.
36).
The retroactive disentitlement to benefit did,
effectively, deny the respondent any period on
benefit in which to attempt to find suitable
employment. The applicant's position is that, in
the circumstances, where there was in fact no real
prospect of her obtaining suitable employment no
time at all was a reasonable period.
I should think that, as a matter of public policy,
the respondent's move must be regarded as one
which she had no option but to make and not just
one made for good cause or reason. The case of a
claimant moving with his or her spouse in order to
preserve the family unit is, in my view, a very
different matter than, for example, that considered
by the Umpire in CUB-3978 where an 18-year old
claimant moved with her ailing parents and found
herself in a situation similar to the respondent's.
However commendable that claimant's motives,
they were personal, not dictated by considerations
of public policy.
The issue, as I see it, is this: is a claimant who
has been put in a position of leaving a job and
moving to an area of little or no real employment
opportunity for reasons entirely beyond his or her
control to be treated immediately as not proving
availability for work? It seems to me that the
position of such a claimant is properly to be equa
ted to that of a claimant who has been laid off,
without moving, in an area where suitable employ
ment opportunities are extremely rare. In other
words, both the loss of employment and the dif
ficulty in finding new employment should be
regarded as having arisen for reasons entirely
beyond the claimant's control.
The respondent is such a claimant. She ought to
have been given some real opportunity to find
work in her new place of residence, no matter how
forlorn her chance of success, before being
required to broaden her area of availability as a
condition of proving she was available. I am
unable to find that the learned Umpire erred in
fixing two months as a reasonable period in the
present case. I would dismiss this section 28
application.
HEALD J.: I agree.
URIE 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.