CUB 27512

TRANSLATION

IN THE MATTER OF THE UNEMPLOYMENT INSURANCE ACT

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IN THE MATTER OF a claim for benefit by
JEAN-PIERRE DANIEL

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IN THE MATTER OF an appeal to an Umpire by the claimant
from the decision of a Board of Referees given on
August 9^th, 1991 at Montréal, Québec

DECISION

Rouleau, J.

The claimant is appealing from the majority decision of the Board of Referees which upheld the decision of the officer of the Commission to the effect that he had voluntarily left his employment without good cause as defined in sections 28 and 30 of the Act.

Mr. Daniel filed a claim for benefits on June 14, 1991. He had been employed by the École Secondaire St-Joseph in Ste-Hyacinthe as a teacher from September 1, 1973 to April 9, 1991. He explained that he had left primarily to look after his mother, who was in the terminal phase of cancer. He added that he intended to look for another job for the following school year. In an interview with an officer of the Commission, he stated that there was some friction between himself and the principal and that his employer was disappointed that he was less involved in the life of the school than before. The Commission contacted the principal of the school, but the principal preferred not to make a statement.

The Commission advised the claimant that he had voluntarily left his employment, that he would be disqualified from receiving benefits effective April 14, 1991 for 8 weeks, and that his benefit rate would be reduced from 60% to 50%.

Mr. Daniel appealed from the decision before the Board of Referees. He appeared at the hearing accompanied by his representative, Me Barabé, who produced documents in a bundle as Exhibit 12. He stated that he was not the only child in the family but that his brother was unable to take care of their mother. He also explained that he had not requested the assistance of the C.L.S.C. before May because his mother refused. He admitted that he had not applied for leave without pay but stated that, for about two years, the situation at work and his family problems had been too much for him, which had led him to leave his employment. The majority of the Board of Referees rejected the argument of the claimant's representative that his mother should be likened to a child within the meaning of paragraph 28(4)(e) of the Act. The Board also indicated that the claimant had neglected to apply for leave without pay. Under the circumstances, the majority of the Board reduced the disqualification from 8 to 7 weeks. The dissenting member concluded that the claimant had good cause for leaving his employment since his mother's health constituted an emergency.

At the hearing, the claimant's representative reiterated that he had left his employment to take care of his dying mother and that this constituted just cause within the meaning of the Act.

For his part, counsel for the Commission argued that the claimant's decision to leave his employment was not the only "reasonable alternative" according to the criterion established by the Federal Court of Appeal in The Attorney General of Canada v. Landry, (24 November 1993), A-1210-92, (F.C.A.).

After reviewing the evidence on record, I find that the claimant had just cause to leave his employment under section 28 of the Act. In the case at bar, Mr. Daniel left his employment on April 9, 1991 to take care of his mother, who was in the terminal phase of cancer. She died on July 1, 1991. Under the circumstances, the claimant's specific situation justified his departure. Moreover, Subsection 28(4) of the Act was subsequently amended to address the situation in which the claimant found himself.

28.(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 following circumstances, the claimant had no reasonable alternative to leaving the employment:

(e) obligation to care for a child or a member of the immediate family;

Consequently, I am convinced that the Board of Referees erred in law in interpreting the expression "no reasonable alternative" in subsection 28(4) of the Act too narrowly.

For these reasons, the appeal is allowed.

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UMPIRE

OTTAWA, Ontario
March 8, 1995