IN THE MATTER OF the Unemployment Insurance Act
- and -
IN THE MATTER OF a claim by
Roberta ROSS
- and -
IN THE MATTER OF an appeal to an Umpire by the claimant
from a decision of the Board of Referees given at
Windsor, Ontario, on March 14, 1991.
DECISION
MacKay, J.
By memorandum dated June 17, 1992, the Acting Registrar of the Office of the Umpire advised that the claimant's appeal should be determined on the written record, and it is now so decided.
The claimant brings this appeal on the basis that the Board of Referees, upholding the Commission's decision, made an error of law in its decision on her claim for benefits. The basis of the claimant's appeal is that the effect of paragraph 28(4)(b) of the Unemployment Insurance Act, R.S.C., [1985], c. U-1, as amended ["the Act"], as applied to the circumstances of the claimant's 7 decision to quit her employment in Etobicoke, Ontario and move to Windsor, Ontario, discriminated against persons involved in common law relationships, contrary to provincial and federal human rights legislation.
The claimant had been living with a man, whom she considered to be her "common law husband", for a period of eight months prior to her claim, i.e.; since May, 1990. Her child from a previous marriage lived with them. When her partner was transferred to Windsor in his work in the fall of 1990, they adopted an arrangement whereby on alternate weekends, the claimant and her daughter would travel form Etobicoke to Windsor one week and the claimant's partner would return to Etobicoke the next. This arrangement was not satisfactory and on December 7, 1990, the claimant quit her job. She and her young daughter then relocated to Windsor to re-establish their home with her partner.
After moving to Windsor, she applied for benefits on January 8, 1991. On the ground that she voluntarily left her employment without just cause, the Commission imposed upon the claimant, the minimum disqualification of seven weeks, with a reduction in her benefits from 60 to 50 percent of her average weekly earnings. The Board of Referees upheld the Commission's decision, providing the following as the basis for its decision:
After reviewing all of the evidence, the Board agrees with the Insurance Officer's application of the CUB 4652 and CUB 10140 which are similar to this case and form a base for his decision. The Board also suggests that there were extenuating circumstances and the seven weeks disqualification with a reduction of her benefit rate from 60 to 50 percent of her average weekly insured earnings is justified.
Relying upon the provisions of provincial and federal human rights legislation, the claimant asserts that the Board made an error of law in finding that the claimant left her employment voluntarily without just cause in that both the Commission and the Board of Referees, based their decisions on the fact that she was in a common law relationship, not legally married. Her submissions are presented on her letters of appeal to the Board of referees, dated February 19, 1991, and to the Umpire, dated April 15, 1991.
The relevant portion of her letter to the Board read:
...
The reason that I am appealing the UI decision is that I do not feel that it is fair to be disqualified for five additional weeks because I admitted that my husband is "common law". Whether we are legally married or not should have no bearing on my right to collect benefits in the normal time-frame. Also, by placing such a restriction, you are asking for dishonest answers. I could have lied - but instead I was honest, and now am penalized.
There also was an additional contention that I left my job "without just cause." I disagree.
Windsor to Toronto return is a 500 mile trip, requiring about eight hours of driving time. When my husband was already down here [in Windsor] working, we made the trip most weekends, alternating one. We tallied incredible mileages on the speedometers but that was nothing compared to the stress on his personally and on the family. My six year-old daughter would have to spend Friday and Sunday nights sleeping in the car while I drove if it was my weekend to drive, or watch the man she considered as her father keep leaving every Sunday night on his weekends to travel. This is not anyway to provide a stable family life for a child. That when an offer was received for the house I accepted it.
Because of the commuting distance and for the reasons outlined above, I do not agree that I left my job without just cause.
The relevant portion of her letter to the Umpire read:
...
Section 28(4)(b) of the Unemployment Insurance Act states that there exists "just cause" to leave employment to accompany a spouse to another residence. This is the reason for my leaving my employment in Etobicoke, Ontario on December 7, 1990 and joining my husband on December 13, 1990 in Windsor, Ontario.
...
The Canadian Human Rights Act...specifies "martial status" as prohibitive grounds for discrimination. By making contributions to U.I. for over fifteen years, I believe that I have the right to "contract" and claim benefits as much as the next person who is legally married and must join their spouse. By the same token, I claimed and received all maternity benefits to which I was entitled nearly seven years ago when I gave birth to my child, although I was not married.
I believe that previous decisions concerning common law marriage must have been made prior to the enactment of the Human Rights Act in all jurisdictions in Canada and because of this, an "error in law" was made in looking at my U.I. claim.
The Commission submits that even though the claimant had a right and good personal reasons for relocating to Windsor, being under no obligation to join her common law husband in Windsor, she had voluntarily left her employment. The Commission further submits that at the time that the claimant quit her employment, her common law relationship had been short in duration, and there were no children from this relationship. It relies on previous decisions of Umpires, in McKean and Gignac, referred to below, in urging that the Board of Referees properly applied the Act and that the extenuating circumstances of the claimant's situation were properly taken into account in limiting the period of disqualification to the minimum under the Act.
The relevant portions of the Unemployment Insurance Act are Subsections 28(1) and (4) and Section 30. Those provisions (which have since been amended), as of October 23, 1990, read as follows:
28.(1) A claimant is disqualified from receiving benefits under this Part if he lost his employment by reason of his own misconduct or if he voluntarily left his employment without just cause.
...
(4) For the purposes of this section, "just cause" for voluntarily leaving an employment exists where, having regard to all the circumstances, including any of the circumstances mentioned in paragraphs (a) to (e), the claimant had no reasonable alternative to immediately leaving the employment:
(a) sexual or other harassment;
(b) obligation to accompany a spouse or dependent child to another residence;
(c) discrimination on a prohibited ground of discrimination within the meaning of the Canadian Human Rights Act;
(d) working conditions that constitute a danger to health or safety; and
(e) obligation to care for a child.
30.(1) Where a claimant is disqualified under Section 27 or 28 from receiving benefits, the disqualification shall be for such weeks which benefit would otherwise be payable following the claimant's waiting period as are determined by the Commission.
(1.1) The number of weeks of a disqualification arising under paragraph 27(1)(a) or (b), or under Section 28, shall be not less than seven and not more than twelve.
Whether leaving employment voluntarily in order to accompany or to join a common law spouse who moves to another locality for his or her employment constitutes just cause has been considered in previous decisions of Umpires. In McKean, CUB 4652, May 20, 1977, Mr. Justice Mahoney dealt with then Subsection 41(1) which was similar to Subsection 28(1) but that previous was not accompanied by Subsection 28(4) which was enacted in October 1990 (S.C. 1990, c. 40 s. 21). As the claimant here suggested, that decision was rendered prior to the enactment of the Canadian Human Rights Act, R.S.C., [1985], c. H-6 ("CHR Act") in July, 1977, which prohibits discrimination, inter alia, on grounds of martial status.
In McKean, Mahoney, J. considered whether leaving employment to accompany a common law spouse, in a situation where no children involved could be deemed to constitute just cause. After reviewing decisions dealing with just cause, he determined:
The common thread is clear. In every case where just cause was found, there was present a real obligation to do something that could only be done if the claimant left employment. It was an obligation which, if not imposed by law, was at least recognized by the community at large. It transcended the purely personal and purely voluntary.
The relationship the claimant here describes was purely voluntary. She had an undisputed right to accompany the man she was living with when he moved and, no doubt, a good personal reason for doing so, but she as under no such obligation. The community at large, which in this context is Canadians generally, expects of married couples that they maintain their home as an integral unit if at all possible. It makes no such demands of unmarried couples, at least in the absence of children.
The Umpire's decision in McKean was followed by Mr. Justice Walsh in Gignac (CUB 6334, January 26, 1981), in a case where there were no children of those in a common law relationship.
Subsection 28(4), with examples of circumstances that may constitute just cause, came into force in 1990. In dealing with paragraph 28(4)(b), Powell (CUB 22033, October 2, 1992), referring to McKean, Mr. Justice Teitelbaum based his conclusion that "to voluntarily quit one's job to follow a common law spouse is not 'just cause' as defined in Subsection 28(4) of the Unemployment Insurance Act". He concluded:
In addition, Section 28(4) speaks, in 28(4)(b) of a "spouse". Under Section 2 of the Act, the word "spouse" is not defined.
In Black's Law Dictionary, Fifth Edition, West Publishing Co. 1979, "spouse" is defined as "one's wife or husband".
In Webster's Third new International Dictionary, Merriam-Webster Inc. Publishers, the word "spouse" is defined as "a man or women joined in wedlock; married person; husband, wife".
...
If Parliament, in its wisdom, wanted to include, and I believe it should be so included, that it would be "just cause" to quit one's job to follow a "common law spouse" Parliament would have so stated in the statute. Parliament has failed to do so and it is not for the Umpire to do so. It is not for an Umpire to expand the meaning of the word "spouse" to include a common law relationship. Thus, Subsection 28(4)(b) of the Act only speaks of a "husband" or "wife" as these words are ordinarily defined, and not of a "common law husband or wife."
No argument was raised in that case concerning the interrelation of that Section and the CHR Act. In this case, the application of Subsection 28(4) to the claimant's circumstances was based on the fact that she was not married to her common law husband whom she left employment to join in Windsor. Whether that factor is a legitimate basis for concluding she left employment without just cause in light of the CHR Act is the issue here raised by the claimant in her appeal to the Umpire.
The CHR Act, enacted in July 1977, expressly prohibits "martial status" as a ground of discrimination. The relevant provisions, Subsection 2, 3(1), 5 and 15, provide:
2. The purpose of this Act is to extend the laws in Canada to give effect, within the purview of matters coming within the legislative authority of Parliament, to the principle that every individual should have an equal opportunity with other individuals to make for himself or herself the life that he or she is able and wishes to have, consistent with his or her duties and obligations as a member of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, martial status, family status, disability or conviction for an offence for which a pardon has been granted.
3.(1) For all purposes of this Act, race, national or ethnic origin, colour, religion, age, sex, martial status, family status, disability and conviction for which a pardon has been granted are prohibited grounds of discrimination.
...
5. It is a discriminatory practice in the provision of goods, services, facilities or accommodation customarily available to the general public:
(a) to deny, or to deny access to, any such good, service, facility or accommodation to any individual, or
(b) to differentiate adversely in relation to any individual,
on a prohibited ground of discrimination.
15. It is not a discriminatory practice if:
...
(g) in the circumstances described in Section 5 or 6, an individual is denied any goods, services, facilities or accommodation or access thereto or occupancy of any commercial premises or residential accommodation or us a victim of any adverse differentiation and there is bona fide justification for that denial or differentiation.
The term "martial Status" is not expressly defined in the CHR Act. However, the Federal Court of Appeal in Schaap v. Canada (Canadian Armed Forces), [1989] 3 F.C. 172 (F.C.A.) interrupted the expression "martial status" as meaning the status of a person in relation to marriage, namely, whether that person is single, married, divorced or widowed.
Human rights legislation has status over other statutory enactments, even those subsequently enacted. If human rights legislation is passed after the enactment of other legislation, it prevails over and implicitly repeals any legislation in so far as there is a conflict. In Winnipeg School Division v. Craton, [1985] 2 S.C.R. 150, McIntyre, J. found that Section 50 of the Public Schools Act of Manitoba, which empowered a school board to fix a compulsory retirement age for teachers, contravened Subsection 6(1) of the Manitoba Human Rights Act, which prohibited discrimination in employment on account of age; thus Section 50 was invalid. He stated at page 155-156:
The record disclosed ... that Subsection 39(2) is the first statutory enactment with which we are here concerned. Had it not been for the 1980 consolidation which included Section 50, no question would have arisen as to which provision would govern. Section 6(1) of the Human Rights Act, enacted in 1974, was clearly a subsequent amendment and an express prohibition against discrimination in employment on the basis of age and, even setting aside the notion of any primacy for human rights legislation, it would have prevailed and repealed Section 39(2) by implication.
...
In any event, I am in agreement with Monnin C.J.M. where he said:
Human rights legislation is public and fundamental law of general application. If there is a conflict between this fundamental law and other specific legislation, unless an exception is created, the human rights legislation must govern.
This is in accordance with the views expressed by Lamer J. in Insurance Corporation of British Columbia v. Heerspink, [1982] 2 S.C.R. 145. Human rights legislation is of a special nature and declares public policy regarding matters of general concern. It is not constitutional in nature in the sense that it may not be altered, amended, or repealed by the legislature. It is, however, of such nature that it may not be altered, amended, or repealed, not may exceptions be created to its provisions, save by clear legislative pronouncement. To adopt and apply any theory of implied repeal buy later statutory enactment to legislation of this kind would be to rob it of its special nature and give scant protection to the rights it proclaims. In this case, it cannot be said that Section 50 of the 1980 consolidation is a sufficiently express indication of a legislative intent to create an exception to the provisions of Section 6(1) of the Human Rights Act.
This principle of interpretation was reiterated by the Supreme Court of Canada in R. v. Mercure, [1988] 1 S.C.R. 234 at page 267:
The courts, and particularly this Court, have expressed themselves in even stronger terms in the area of law giving expression to human rights which it has treated as being of an almost constitutional nature. Repeal of such laws requires "clear legislative pronouncement", to use McIntyre J.'s words in Winnipeg School Division No. 1 v. Craton ...
In Canada (Attorney General) v. Druken, [1989] 2 F.C. 24 (F.C.A.), Mahoney J. adopted McIntyre J.'s approach of implied repeal where conflicting human rights legislation is the subsequent enactment, and extended the principle of paramountcy where the human rights legislation is the prior enactment. In that case, the Attorney general of Canada sought to set aside the decision of a tribunal appointed under the CHR Act that refusal of unemployment insurance benefits to the respondent who had been employed by companies controlled by her husband, pursuant to the application of Subsection 3(1), 4(3)(d), and 17 of the UI Act and Section 14 of the UI Regulations, was a denial of service customarily available to the general public on a prohibited ground of discrimination, "martial status", contrary to Section 2, 3(1), 5 and 14(g) of the CHR Act. One of the applicant's principal arguments concerned whether the tribunal had erred in ordering the Commission to cease applying those provisions of the UI Act, thereby effectively declaring them inoperative on the basis that the CHR Act was not paramount over another Act of Parliament. Mahoney J. restated the principle set out by McIntyre J. in Winnipeg School Division as follows:
The rule appears to be that when human rights legislation and other legislation cannot stand together, a subsequent inconsistent enactment, unless clearly stated to create an exception to it, is not to be construed as repealing the subsisting human rights legislation. On the other hand, when the human rights legislation is the subsequent enactment, it does repeal by implication the other inconsistent legislation.
In his opinion, both paragraphs 3(2)(c) and 4(3)(d) of the UI Act, among "the present laws of Canada", were impliedly repealed by the subsequent enactment of the CHR Act in 1977. Thus, he upheld the tribunal's order that the Commission cease applying those provisions.
Although the word "spouse" has not been defined in the Act, I note it has been expressly defined to extend its meaning to include a "common law spouse" in other statutory instruments. Indeed, under the Act, in Section 107 in Division II of the Unemployment Insurance Regulations, C.R.C. 1978, c. 1576, "spouse" is defined for the purposes of Supplementary Training Assistance as follows:
"spouse" includes any person who, during a period of not less than one year immediately preceding the referral of a qualified claimant by a designated authority to a course or program, has been publicly represented by the qualified claimant as the husband or wife, as the case may be, of the qualified claimant.
Further, Section 2 of the National Training Regulations, SOR 82-776, which was enacted under the National Training Act, R.S.C. [1985] c. n-19, defines "spouse" as follows:
"spouse" includes any person, who during a period of not less than one year immediately preceding the enrollment of an adult in a course, has been publicly represented by the adult as the husband or wife of the adult.
The word "Spouse" has been expressly defined to restrict its meaning to "married spouses" in the Divorce Act, c. D-3.4, subsection 2 1 and the Immigration Act, c.I-2, Section 46.04 (8). 2 It has been expressly defined to include "common law spouse" in several social benefits enactments: the Canada Pension Plan, R.S.C., c. C-8, section 2(1), 3 the Old Age Security Act, R.S.C. [1985], c. O-9, as amended, section 2, 4 the Pension Benefits Standards Act, R.S.C. [1985], c. P-7.01, section 2(1), 5 the Canadian Forces Superannuation Act, R.S.C. [1985], c. C-17, section 29, 6 and the War Veterans Allowance Act, R.S.C. [1985], c. W-3, section 2(3). 7 Generally, those provisions which define a "common law spouse", appear to require that at a minimum, the parties must be of the opposite sex and have cohabitated in a conjugal relationship for a period of not less than one year.
In this case, the prior enactment of Section 3 of the CHR Act prohibiting discrimination on the basis of "martial status" in 1977, required that the amendment of Section 28 of the UI Act in 1990, adding Subsection (4), be read so that the term "spouse" in paragraph 4(b) does not distinguish between "married spouses" and "common law spouse". There is no expressed intention by Parliament to restrict its meaning to "married spouses" and in my view, it should be read in a manner consistent with the CHR Act. If that is so, paragraph 4(b), describing certain circumstances which may permit benefits without disqualification for one who voluntarily leaves employment, should be applied without reference to the martial status of those who claim to be spouses.
This does not mean that in every case, one who voluntarily leaves employment to follow or accompany her or his spouse to another location is automatically deemed to have left employment with just cause.
The words of Subsection 28(4) preceding paragraphs (a) - (e) direct the Commission, Board and Umpire to consider all of the claimant's circumstances, including but not limited to the circumstances described in paragraphs (a) - (e). Paragraph 28(4)(b) contemplates a finding of "just cause" in circumstances in which the claimant had an obligation to accompany his or her spouse to another residence, as a result of which there was no reasonable alternative to immediately leaving the employment.
Generally, the circumstances considered to constitute "just cause" are to be judged against the actions of the reasonably prudent person in the situation of the claimant. (Tanguay et al v. U.I. Commission et al. [1985], 68 N.R. 154). Prior to the 1990 amendment of Section 28 of the UI Act, the general test for a finding of "just cause" was described by Strayer, J. in CUB 18995, December 12, 1990, as being:
...essentially that of whether a reasonably prudent person would have done so in the circumstance. It has been held that a reasonably prudent person does not leave one job before fining another one unless circumstance at the existing job are impossible, intolerable, or dangerous.
In Fulford, (CUB 20781, January 1, 1992), Strayer, J. commenting on the effect of the amendment to Section 28 of the UI Act adding Subsection 28(4) in November 1990, observed that the term "no reasonable alternative" is quite capable of embracing nonwork problems which could be included among the circumstances justifying leaving a job. He stated:
...Section 28(4) provides that "just cause" ...exists where, having regard to all the circumstances... the claimant had no reasonable alternative to immediately leaving the employment..." It will be noted that the term "no reasonable alternative" is somewhat ambiguous bit is quite capable of embracing nonwork related problems which could be included among the "circumstances" justifying leaving a job. This is confirmed by the balance of the Subsection which specifies certain circumstances which are to be considered in the phrase "all the circumstances" to which the Commission may have regard. The Subsection is quoted in full above and it will be noted that the circumstances listed in paragraphs (a) to (e) include both work-related and nonwork-related circumstances, the latter including "obligation to accompany a spouse or dependent child to another residence" and "obligation to care for a child". It is clear that this list was not intended to be exhaustive of "the circumstances" justifying departure, as the Commission is to have regard to all the circumstances, including any of the circumstances mentioned in paragraphs (a) to (e)...(emphasis added).
Thus, family circumstances in their entirety may constitute "just cause" for voluntarily leaving employment if there is "no reasonable alternative to immediately leaving the employment".
In this case, the claimant had been living with her "common law husband" since May 1990. She quit her job on December 7, 1990, then made her claim for benefits on January 8, 1991. The total period of time over which the claimant and her "common law husband" had been in a relationship was eight months. Their relationship fell short of one year, and in light of examples from other statutory provisions concerning recognition of common law relationships, the claimant might well not be regarded as a typical "common law spouse". However, taking into consideration all of the family circumstances, that the claimant's young daughter regarded her mother's partner as her father, that the weekend travel was placing stress on the family, and that the claimant and her partner were striving to provide a stable family life for their child, in my opinion, when the claimant left her job upon receipt, and acceptance, of an offer to purchase her house, she had "no reasonable alternative to immediately leaving the employment". In my view, a reasonable person in the situation of the claimant would have done as she did, and in leaving her employment she had just cause, considering all the circumstances.
Conclusion
In my opinion, the Board of referees erred in law in its application of Subsection 28(4) of the Act by excluding the claimant because she was not considered a spouse within paragraph 28(4)(b). By so doing, it failed to take into account the provisions of the CHR Act, prohibiting discrimination on the basis of martial status, and it overlooked many of the circumstances relevant to a determination whether she left her employment with just cause. The claimant's appeal is allowed.
Under Section 81 of the Act, I exercise authority vested in an Umpire to render the decision the Board of Referees should have. I conclude that in all the relevant circumstances, the claimant did not leave her employment in Etobicoke without just cause. Thus, she should not be disentitled to benefits under Subsection 28 and 30 of the Act.
The claimant's appeal from the decision of the Board of Referees is therefore allowed.
W. Andrew MacKay
UMPIRE
OTTAWA
May 26, 1994
1 "spouse" means either a man or woman who are married to each other; 1
3 "spouse" in relation to a contributor, means, 3
(a) except in or in relation to section 55,
(i) if there is no person described in subparagraph (ii), a person who is married to the contributor at the relevant time, or
(ii) a person of the opposite sex who is cohabitating with the contributor in a conjugal relationship at the relevant time, having so cohabited with the contributor for a continuous period of at least one year, and
(b) in or in relation to section 55, a person who is married to the contributor at the relevant time, and, in the case of a contributor's death, the "relevant time", for greater certainty, means the time of the contributor's death;
[Emphasis added]
[Emphasis added]
5 "spouse" in relation to a member, means, except in section 25, 5
(a) if there is a person described in paragraph (b), a person who is married to a member of former member or who is a party to a void marriage with the member or former member, or
(b) a person of the opposite sex who is cohabiting with the member or former member in a conjugal relationship at the relevant time, having so cohabited with the member or former member for at least one year,
[Emphasis added]
6 29. For the purposes of this Act, a person who
(a) establishes to the satisfaction of the Treasury Board that he had, for a period of not less than three years immediately prior to the death of a contributor with whom he had been residing and whom by law he was prohibited from marrying by reason of a pervious marriage either of the contributor or of himself to another person, been publicly represented by that contributor as his spouse, or
(b) establishes to the satisfaction of the Treasury Board that he had, for a period of not less than one year immediately prior to the death of a contributor with whom be had been residing, been publicly represented by that contributor as his spouse, and that at the time of the death of that contributor neither she nor the contributor was married to any other person,
shall, if the Treasury Board so directs, be deemed to be surviving spouse of that contributor and to have become married to the contributor at such time as he commenced being so represented as the spouse of the contributor, and for the purpose of this Act a person to whom this section would apply, but for his marriage to a contributor after such time as he commenced being represented as the spouse of the contributor, shall, if the Treasury Board so directs, be deemed to have become married to that contributor at the time when, in fact, he commenced being so represented.
[Emphasis added]
7 (3) For the purposes of this Act,
(a) a veteran who establishes to the satisfaction of the Minister that the veteran has been cohabiting in a conjugal relationship with a person of the opposite sex for a period of not less than one year shall be deemed to be married to that person, until either of them marries or until they cease to cohabit, and on the death of the veteran while so deemed to be married that person shall be deemed to be the surviving spouse of the veteran; and
(b) a person who establishes to the satisfaction of the Minister that the person was cohabiting in a conjugal relationship with a veteran of the opposite sex for a period of not less than one year immediately prior to the death of the veteran shall be deemed to the surviving spouse of that veteran.
[Emphasis added]
2011-01-10