CUB 21825
JUDGMENT OF THE FEDERAL COURT OF APPEAL
Date:
March 8, 1994
Docket:
A-1485-92
Umpire's Decision:
CUB 21825
CORAM :
STONE J.A.
LINDEN J.A.
ROBERTSON J.A.
BETWEEN :
THE ATTORNEY GENERAL OF CANADA,
applicant,
-and-
GLORIA KUNTZ,
respondent.
Heard at Saskatoon, Saskatchewan, Thursday, February 10, 1994.
REASONS FOR JUDGMENT
(Delivered from the bench at Ottawa, Ontario,
on Tuesday, March 8, 1994)
STONE J.A.:
In 1990, the respondent left her employment as a clerk-typist in Brandon, Manitoba to join her spouse, whom she had recently married, in Hudson Bay, Saskatchewan. Her spouse had been employed and resided at Hudson Bay for sixteen years.
Shortly afterwards, the respondent applied for benefits under the Unemployment Insurance Act and payment thereof commenced on August 19, 1990. However, on March 2, 1991, after twenty-six weeks, payments were suspended. The reason for the suspension is made apparent in the following submission which the Commission made to a Board of Referees to which the respondent had appealed:
A claimant, moving from an area where there is an established labour market to a small community where job opportunities are extremely limited, will be given a reasonable period of time only to find employment in the small community. A claimant may exercise the democratic right of free movement, whether to maintain the integrity of the family unit or for any other reason, but, if by doing so, the claimant loses any reasonable chance of suitable employment then availability for work within the meaning of the Unemployment Insurance Act ceases to exist. The claimant is only entitled to a reasonable opportunity to explore the new labour market before becoming disentitled. After the expiry of a reasonable period, a claimant must be prepared to widen the area in which work will be accepted.
In reversing the decision of the Board of Referees, the learned Umpire stated:
However, as my colleagues Reed J. has pointed out in Sanghera, CUB 18174, 1990, there is no statutory basis for this jurisprudence and it warrants reconsideration. She refused to apply it in that case and the Commission did not proceed with an appeal of her decision. I believe the present case is another situation where that jurisprudence should not be applied. It is not disputed that, as the claimant says, there is no significant community within one hundred miles of Hudson Bay and therefore the effect of the Commission's ruling is that she may not continue to collect benefits unless she is prepared to leave Hudson Bay and move to another, larger, community. Yet, as the claimant points out, during the period when she was in receipt of benefits there were many long-term residents of Hudson Bay who had become unemployed through plant closures but who continued to collect benefits for the whole year. The Commission did not require them to move out of Hudson Bay, to larger communities with more opportunities, in order for them to collect benefits. I am unable to discern any insurance or other principle which justifies this difference in treatment between the claimant and the unemployed long-term residents of Hudson Bay, nor does the Act or Regulations require such a distinction being made. I think, this situation must be distinguished from those where a wider job search is reasonably available within commuting distance of the community to which the claimant has moved.
The Board of Referees had upheld the Commission's determination but on the basis that the suspension become effective on April 15, 1991 because the Commission had failed to give any earlier warning that the benefits would be suspended.
At the time of the hearing of this application, two cases involving the claim of a spouse for benefits were pending decision in this Court. They are the Attorney General of Canada v. Whiffen (Court File No. A-1472-92) and the Attorney General of Canada v. Blondahl (Court File No. A-209-93). Judgments in both cases were handed down on February 28, 1994. The Court sustained the decision of an umpire in Whiffen but on a different footing. In that case the claimant, a dental assistant, had moved to follow her husband from Chilliwack to Masset, British Columbia to which her husband, a member of the armed forces, had been transferred. In Blondahl, on the other hand, the claimant had not moved to follow her husband to a new place of employment. Her husband was unable to work because he was an invalid. The move from Penticton to Long Butte, British Columbia was prompted by the couple's desire to reside there, being a place with which they were familiar because they had resided there previously.
In Whiffen, this Court affirmed the validity of the Commission's overall policy as upheld in Attorney General of Canada v. Dodsworth, [1984] 2 F.C. 193. In that case, Mahoney J.A. referred to the situation of a spouse having to give up employment in one area of the country in order to follow the other spouse who becomes employed in another area. He stated at page 195:
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.
However, in Whiffen this Court expressed the view that the Commission's policy is not to be applied blindly and automatically without regard to the circumstances of individual cases, as was made clear by Marceau J.A., speaking for the Court, at pages 10-11:
To simply apply the policy, the fact that the new location was significantly less advantageous for eventual re-employment will have to be established and the burden of establishing that fact will lie on the Commission since it will be advanced to counter the evidence of the claimant that his or her job search is adequate compared to the other claimants of his or her new area. And to properly apply the policy, the comparison between the two labour markets must be made with respect to the claimant's situation, possibilities and circumstances. Above all, we are talking about the assessment of availability and the power of the Commission to require of a claimant greater efforts to go back to the labour force. Availability, it should not be forgotten, is a willingness to work under normal conditions without unduly limiting the chances of obtaining employment. It is a question of fact which requires, to be answered, that all the circumstances of a particular case be examined. In no case should this basic principle be somehow curtailed by the blind and automatic application of the policy. While at the administrative level the adoption of trends may be acceptable in order to preserve consistency, at the appeal level, a review of all the facts and a consideration of all the various factors involved must be carried out. On the other hand, any condition to which a claimant may be subjected in order to keep satisfying the availability requirement has to be reasonable, which again demands a consideration of all the circumstances of each case.
My learned colleague then proceeded immediately to articulate what he called the "spousal exclusion" in the following terms, at pages 11-12:
It is because of those principles that the recent amendment brought by Parliament to section 28 of the Act, which now states that the obligation to accompany a spouse or dependant child to another residence is a good cause for leaving an employment, has confirmed the existence of a particular limitation to the application of the policy. There is now legislative approval for Mr. Justice Mahoney's observation in the Dodsworth case to the effect that a wife, because the unity of the family is at issue, has practically no choice but to move with her husband, with the effect that her move cannot be seen as a wilful restriction to her chances of re-employment. In such a case, therefore, as in the case of a husband who follows his wife, the impugned policy can have no application. The claimant has to be treated like all of the other claimants of his or her new area.
On this basis the decision of the Umpire was upheld.
In Blondahl, on the other hand, this Court concluded that the "spousal exclusion" had no application. In so doing, Marceau J.A. noted, at page 3, that:
[T]he respondent did not move to follow her husband. It was obviously a wilful decision on her part.
Notwithstanding this circumstance, the Court went on to uphold the decision of the Umpire who found on the evidence that the Commission had failed to have regard to "important material before it" which the Board, in the view of this Court, had "obviously ignored" and which had led it into a blind and automatic application of a valid policy.
The present case, it seems to me, falls squarely within the spousal exclusion as articulated by Marceau J.A. in Whiffen. As in that case, the respondent in the case at Bar moved to Hudson Bay to be with her husband whom she had recently married and whose residence and place of employment had been in Hudson Bay for many years.
In the result, I would dismiss this section 28 application.
"A.J. STONE"
J.A.
"I agree
A.M. Linden"
"I agree
J.T. Robertson J.A."
2011-01-10