It was employer’s practice to artificially create seasonal jobs for plant’s operations; two teams of employees would share work over six-month periods. This was embodied in letter of agreement signed in 2001 between union and employer. Fourth clause of agreement provided that, at time of team changes, employees could not exercise their right to displace according to seniority provided for in art. 9.09 of collective agreement. During “rest period”, employees, including workers, claimed and benefited from employment insurance benefits. This practice was uninterrupted for 13 years until in 2012, when Service Canada advised employer that when employee did not exercise seniority right, situation constituted voluntary departure. Record of Employment issued by employer indicated lack of work as cause of departure. Employment Insurance Commission (Commission) denied workers employment insurance benefits on basis of voluntary departure. As soon as workers were informed that letter of agreement was no longer valid as of February 2013, workers asserted their right to displace, returned to work, and appealed Commission’s decision. Board of Referees allowed appeal against Commission’s decision. Commission’s appeals following decision were dismissed by Social Security Tribunal Division Appeal (DA). DA concluded that, light of particular circumstances of case, workers by did not voluntarily leave their employment. Attorney General brought application for judicial review. Application dismissed. DA’s findings of fact were reasonable as they were based on evidence heard and other documentary evidence on record. DA was reasonable to conclude that workers did not choose to refuse to work in order to allow other employees to work in their place, given absence of evidence before Board of Referees that workers we previously notified by their employer, and union of cancellation of letter of agreement signed in 2001. DA did not have to determine whether workers were justified in leaving their jobs. Any employee, who, having regard to his or her seniority, was entitled to work but chose to allow another employee to work, voluntarily left his or her employment and did not establish justification under law.
Canada (Procureur général) c. Joncas (2017), 2017 CarswellNat 1032, 2017 CAF 57, Johanne Gauthier J.A., A.F. Scott J.A., and Yves de Montigny J.A. (F.C.A.).