CUB 27800

The claimant appeals a decision of the Board of Referees that found she left her job without just cause. She was therefore disqualified from receiving benefits for seven weeks and, when she was given benefits, her benefit rate was reduced from 60% to 50% of her weekly insurable earnings.

The claimant left employment to follow her husband-to-be to Ottawa. He is a member of the R.C.M.P. and they met in Regina. He was at the training college there. The claimant has a son who at the time was four years old. The son developed a de facto father-son relationship with the claimant's husband-to-be. When he was posted to Ottawa, the claimant left her job in Regina. She moved to Ottawa and she and her husband-to-be began living together. She indicated to the Commission that they were planning to marry sometime during the following year.

She correctly states that if she and her now husband had married before moving to Ottawa, she would have been found to have had just cause for leaving her job. She correctly states that if her husband-to-be had been the biological father of her son, instead of his de facto father, and she had moved to enable the son to be near him, she would have been found to have had just cause. She argues that the decision which was made by the Board is: (1) contrary to subsection 6(2) of the Canadian Charter of Rights and Freedoms ("Charter") because it infringes her mobility rights; (2) contrary to section 15 of the Charter because it discriminates against her on the ground of her marital status; and (3) is simply an incorrect interpretation of what constitutes just cause under the Unemployment Insurance Act, R.S.C. 1985, c. U-1, as amended (the "Act").

When the claimant attempted to make her arguments before the Board of Referees she was told by the Board that it had no jurisdiction to hear her first two arguments. The claimant is somewhat annoyed that, as she puts it, the Board does not comply with or apply the Charter and that she is forced to appeal to an Umpire to have her arguments heard. In addition, when this appeal was called for hearing, and after the claimant had presented her case, the Commission sought an adjournment because the claimant had not served all the provincial Attorneys General and the federal Attorney General with notice that she intended to raise a constitutional argument. Such is required by section 57 of the Federal Court Act, R.S.C. 1985, c. F-7, as amended¹ .

This case is an excellent example of the abusive effect of that section. The claimant raised the constitutional arguments long ago. The Commission knew of those arguments, at least, as early as September 19, 1991. The Commission knew the arguments were a fundamental part of the claimant's case. The Commission then waits until the hearing is called and the claimant has made her representations and, then, objects to the Umpire making any disposition with respect thereto because the claimant has not served notice of her constitutional argument on the Attorney General of Canada as well as on every provincial Attorney General.

The claimant is acting for herself. She is not represented by a lawyer. The monetary amount in issue is seven weeks of unemployment insurance benefits together with the amount resulting from the reduction from 60% to 50% in her benefits. What is more, to attend Umpire hearings, claimants often have to take time off work and, if they are hourly paid, forgo a day's wages. The burden on claimants, who wish to pursue an appeal, is already onerous enough without the added obligation that they must first serve notice on the federal Attorney General as well as on all the provincial Attorneys General before they will be allowed to pursue an argument based on the Charter.

One can understand why section 57 was added to the Federal Court Act. The government does not wish to lose constitutional cases by default - for example, as a result of a lack of an opportunity to prepare a proper evidentiary base for a case. But, one wonders if there is not a better solution to this problem than the present section 57. It is simply preposterous to expect a claimant to give notice of the argument she is making to the Attorney General of Canada and to all the provincial Attorneys General. Section 57 can only be characterized as placing unnecessary roadblocks in front of claimants, which in all likelihood often cause them to abandon bona fide appeals. I do not understand why the Attorney General of Canada should not be deemed to have knowledge that the constitutional argument is being raised by virtue of the fact that the Commission has such knowledge. Surely the obligation should be on the government to ensure effective communication between the two departments and not on a claimant who is merely trying to assert a right to seven weeks unemployment insurance benefits.

In any event, I interpret section 57 as requiring notice before a section of the Act or a regulation is declared invalid, inapplicable or inoperable. It does not require notice before argument is heard, nor does it require notice if none of those results will follow. I should note that because the Commission was not prepared to address the claimant's arguments at the time of the oral hearing, I allowed time for the submission of written arguments.

The claimant's first argument is that the denial of benefits to her infringes the mobility rights set out in section 6 of the Charter:

Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right:

(a) to move and take up residence in any province; and

(b) to pursue the gaining of a livelihood in any province.

The non-provision of unemployment insurance benefits does not deny the claimant her right to move from Saskatchewan to Quebec. It does not deny her the right to take up residence in the latter province. Nor does it prevent her from earning a livelihood there. When one is in receipt of unemployment insurance benefits one is not earning a livelihood. Even if it could be argued that the provision of unemployment insurance benefits falls within section 6 because it facilitates one's ability to earn a livelihood by providing financial assistance, the restriction in this case is not related to provincial borders. The claimant could have been denied benefits, on the grounds which are asserted against her, had she moved from Regina to Prince Albert. Mr. Justice Strayer dealt with a mobility rights argument in the context of a denial of benefits to a claimant who had not proven availability for work (CUB 18138 - Hems, June 22, 1990)² . He wrote:

With respect to section 6 (mobility rights) nothing in the Act, the Regulations, or the jurisprudence restricts a claimant's right to move from one place to another in Canada. Section 6 cannot be interpreted as guaranteeing every citizen that he will have equal Unemployment Insurance benefits wherever he goes without regard to his availability for work. Further, it is clear that section 6 only precludes laws which discriminate among persons primarily on the basis of province of present or previous residence. The jurisprudence on availability under the Unemployment Insurance Act does not relate to movements across provincial boundaries; it applied equally to movements within a single province from a large, sparsely-populated area.

The claimant's second argument is that she is being discriminated against on the basis of marital status. She moved to establish what is colloquially called a common-law relationship³ and eventually to marry. If she had been married already or if her husband-to-be had been her son's biological father she would have been found to have had just cause for leaving her employment in Regina and moving to Quebec. I will first set out the present jurisprudence as I understand it.

It is clear that moving to follow a spouse to a new location is just cause for leaving employment. This is expressly stated to be so in paragraph 28(4)(b) of the Act. That paragraph states that one of the circumstances relevant to a finding of just cause is an "obligation to accompany a spouse or dependent child to another residence". The meaning of this paragraph is a bit unclear. I have not been able to find any authority which states that there is an obligation on one spouse to follow the other when that other chooses to move for employment purposes. Indeed, in the context of unemployment insurance law, these considerations only become relevant when both spouses are employed. One can ask why the obligation is not upon the spouse that moves to remain in the location where the family is already established.

In any event, I take the use of the term "obligation" in paragraph (b) of subsection 28(4) to mean no more than that the law and society in general favour the continuation and stability of the family unit. When spouses decide that it is in the economic interest of that unit to move, for example, to enable one spouse to take advantage of a promotion, or when one spouse works in employment which by its very nature requires geographical relocation (e.g. a member of the armed forces or the R.C.M.P.), then, leaving employment by the other spouse to keep the family unit together will be considered just cause. It must be continually kept in mind, however, that whatever paragraph 28(4)(b) means, it merely describes one circumstance which is relevant to a finding of just cause. The list in subsection 28(4) is not exhaustive.

Moving to follow a "common-law partner"⁴ is also just cause for leaving employment: see CUB 24562 - Ross (March 14, 1991) and CUB 25813A - Vermette (December 16, 1994). To hold otherwise would be to discriminate against a person on the ground of marital status. Such discrimination is contrary to the Canadian Human Rights Act, R.S.C. 1985, c. H-6. I note that the Canadian Human Rights Act, as a piece of ordinary federal legislation, is not subject to the strictures of section 57 of the Federal Court Act nor are Boards of Referees impeded from applying it by virtue of the Tetreault-Gadoury⁵ decision.

The Commission has recognized that treating individuals who co-habit without marrying differently from those who have gone through a legal ceremony of marriage would be discrimination. It has adopted a policy of equating cohabitation without marriage to marriage if the relationship has existed for one year or if there is a child of the union. There is a difference of opinion as to whether the one year requirement, in the context of determining whether there is just cause for leaving employment, is appropriate. Mr. Justice MacKay in the Ross case supra found an eight month relationship to be analogous to a legal marriage. Mr. Justice Noël in CUB 25577 - Hebert (August 29, 1994) found that a four month relationship was not. In justifying the requirement for one year of cohabitation he wrote:

a marital relationship based on a common law union will suffice when the permanency of the relationship can be ascertained by reference to a measurable objective standard.

It is not clear to me that, insofar as the Unemployment Insurance Act is concerned, the jurisprudence has finally decided this issue yet. One may be able to demonstrate the permanency of a relationship by factors other than length of time of cohabitation. I note that there are various requirements as to when a person will be treated as the spouse of another depending upon the purpose of the legislation in question⁶ . In any event, I do not think I need to decide that issue for the purposes of this case.

The claimant's situation is not one in which there had been cohabitation outside marriage prior to the move. Her situation is comparable to a fiancée who moves to get married. The Commission's position, as I understand it from past experience with these kinds of claims, has always been that if the marriage is reasonably imminent just cause for leaving employment in order to move to a new geographical location will be found. The Commission does not demand that just cause can only exist when an individual leaves employment the day after the marriage.

Subsection 28(4) of the Act provides that just cause is to be determined by "having regard to all the circumstances", for the purpose of deciding whether the claimant "had no reasonable alternative to leaving employment". The Federal Court of Appeal in A.G. Canada v. Landry (A-1210-92, November 24, 1993) dealt with paragraph 28(4) and particularly paragraph (b) thereof. The Board of Referees whose decision was under review in that case, apparently, had held that an individual who went to live with someone whom she intended to marry was a spouse and therefore fell within paragraph 28(4)(b). The Court of Appeal stated that this was an error. The decision was referred back for redetermination as to whether or not, in all the circumstances, moving had been the only reasonable alternative open to the claimant.

Similarly, in the present case, then, the issue is not whether the claimant was married or had cohabited with her husband-to-be and therefore was a spouse under paragraph 28(4)(b) but whether, "having regard to all the circumstances", the alternatives open to the claimant were not reasonable. The Board did not address that issue. The Board noted the fact that the claimant's son looked to her husband-to-be as a role model but made no comment thereon. The Board noted that the claimant had searched for work on arriving in Gatineau and stated that these searches did not constitute sufficient efforts to find work before leaving Regina. The Board noted that the claimant had not lived "common-law" before she moved. The Board, then, concluded:

The Board of Referees maintains that the claimant did not prove just cause according to the elements specified by the Law and Regulations of the Unemployment Insurance. There was no element of urgency in leaving her employment.

The Board of Referees, unanimously, maintains that it has no choice but to disallow the appeal of the claimant and accept the 7 weeks disqualification imposed by the insurance officer.

One reason that the Board did not address its mind to the statutory test set out in subsection 28(4) may be that the Commission's Observations to the Board did not refer to that subsection. In any event, the Board having erred by not using the proper test, its decision will be set aside and I will exercise my jurisdiction pursuant to section 81 of the Act and make the decision which the Board should have made.

I first of all note that the fact that the claimant did not search for employment before she left Regina is not significant in this case. As she noted in her communication to the Commission on July 2, 1991 (Ex. 2.5), she did not do so because the distance between the two places is so great. While one is normally expected to seek alternate employment before leaving a job, this is not required when it is impractical to do so. The claimant's circumstances are not similar to that of a person who wishes to move, for example, between moving from one of these locations to the other. The claimant worked as a nursing assistant, taking care of the elderly. I accept that it would have been impractical for her to look for alternate work in the Outaouais region while she was still in Regina.

As has already been said, the fact that there was neither a marriage nor a one year period of prior co-habitation is not determinative of whether just cause exists. In assessing the reasonableness of the claimant leaving her job and whether there was any reasonable alternative, one has to consider the consequences for her of not having done so. The claimant and her now husband had an exclusive committed relationship before they left Regina. Like many couples to-day they intended to get married sometime but this was not a pressing concern. Living together without having first gone through some form of legal marriage is now socially acceptable. That the applicant moved with her four year old son from Regina to Gatineau to live with her now husband, itself, demonstrates a committed relationship.

The distance is great. The distance is such that the claimant and her friend could not have maintained a commuting relationship. The relationship was established when both were located in Regina. It was not established on a commuting basis.

The claimant's now husband is employed in a type of work where posting to a new location is not a matter within his control. There is nothing to suggest, for example, that he made the move as a result of his personal choice or that he could have chosen to stay in Regina.

The claimant's four year old son had established a de facto father-son relationship with the claimant's husband-to-be. Had the move not been

The claimant's four year old son had established a de facto father-son relationship with the claimant's husband-to-be. Had the move not been made the claimant and her son would have had to abandon, for an indefinite period of time, the benefits arising from the day to day interaction and support provided by that relationship. The Commission's answer is "get married first". I do not think it is reasonable to require the claimant to either give up the relationship for an indefinite period of time or to marry immediately. In all the circumstances the alternatives open to the claimant were not reasonable.

The Board's decision is therefore set aside. The claimant is entitled to the benefits she claims.

CUB 27800

DECISION