IN THE MATTER of the UNEMPLOYMENT INSURANCE ACT
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IN THE MATTER of a claim for benefits by
VALERIE SHAW
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IN THE MATTER of an appeal to an Umpire by the Canada Employment and
Immigration Commission from a decision by the Board of Referees given at
Sudbury, Ontario, on December 21, 1993.
DECISION
JEROME, A.C.J.:
This is an appeal by the Canada Employment and Immigration Commission from a decision of the Board of Referees which held the claimant had just cause for voluntarily leaving her employment.
Ms. Shaw was employed with Quatrane, a management corporation from October 20, 1986, to October 22, 1993. She made application for unemployment insurance benefits on November 1, 1993, indicating she was no longer working as she had quit. Her explanation was that her common-law spouse had accepted a position with a company in northern Ontario and she felt it essential to move there and join him.
Based on this information, the Commission determined the claimant to have voluntarily left her employment without just cause. She was disqualified from receiving benefits from October 25, 1993, for the remainder of her claim. The decision was based on the fact the claimant left her employment in October of 1993 but was not getting married until July of 1994, and at the time of leaving she and her common-law spouse had only been living together for approximately four months.
The claimant appealed to a Board of Referees. The majority allowed her appeal stating its reasons as follows:
The claimant and her future husband became engaged to be married on July 1/93. The couple then moved in together and established a spousal relationship on that date. The wedding is planned for July 1994. In the end of August 93, the spouse was offered a job in the Sudbury area and after the interviews and discussion together it was decided that he would accept the position.
It was decided that the claimant would follow her husband to be and seek employment in the Sudbury area.
She left her employment in Ottawa on October 23, 1993 and proceeded to follow her husband to Sudbury. This was not frivolous action on her part.
Section 28 and Section 30-1 of the Act stated that: a perspective bride may show just cause for leaving employment to move to another area where her husband to be resides. It must also be established that marriage plans are definite and have been made for the immediate future.
It is the opinion of the majority of the Board that the claimant has established just cause for leaving her employment to follow her husband to be [to] Sudbury. Therefore the claim is allowed and the decision of the Insurance Officer is rescinded. The claimant has an extensive job search (200 letter & 160 faxes) plus hand delivered applications.
The dissenting Board member would have disallowed the appeal on the grounds the claimant was not married and she and her fiance had a very short common law relationship. Nor were they getting married in the immediate future at the time she quit.
The Commission now appeals to an Umpire on the grounds the Board erred in law in appling paragraph 28(4)(b) of the Unemployment Insurance Act, which provides that just cause may exist where a claimant is obliged "to accompany a spouse or dependent child to another residence". It is submitted the word "spouse" is not defined in the Act and should be given its ordinary meaning, that is, married people. The Commission has a policy which recognizes persons who have lived common law for a one year period, or who have children, as being spouses for the purpose of the Act. It argues that policy is in keeping with other federal and provincial statutes. For example, the Canada Pension Plan Act, the Old Age Security Act and the Pension Benefits Standards Act, all include a definition of spouse which includes persons who have cohabited for at least a year. The Commission provides further examples of provincial statutes which are more varied in their requirements, but the most liberal still require a common law relationship of one year duration before individuals are considered spouses.
There is no question the Commission is at liberty to implement a policy in order to assist in the exercise of its discretionary decision-making power. Accordingly, there can be no argument with its policy of including persons who have lived in a common-law relationship as spouses within the meaning of paragraph 28(4)(b) of the Act. Having done so, however, it is now precluded from arguing that in this particular case, the word "spouse" should be given its ordinary meaning of married people.
Furthermore, the Commission is not at liberty to apply its policy as though it were some extra-statutory criteria which a claimant must meet in order to qualify for benefits. A public authority which errs in that direction fails to exercise the discretion bestowed upon it by statute. It is still bound, in making a determination under section 28 of the Act as to whether a claimant voluntarily left her employment without just cause, to take into account all the relevant circumstances of a particular case before it.
In that respect, exhibit 9 which is a letter from the claimant's employer, demonstrates that, in accordance with paragraph 28(4)(n) of the Act, other reasonable circumstances existed in this case which constituted just cause. The employer indicates that at the time the claimant left, it intended to lay-off a secretary due to economics and would not have been amenable to prolonged absences on Ms. Shaw's part while she sought other employment in Sudbury. Indeed, after the claimant left no one was hired to replace her and her duties were fulfilled by other staff members.
I am satisfied there was evidence to substantiate the Board's finding the claimant had just cause for leaving her employment and there is no basis to interfere with its decision.
For these reasons, the Commission's appeal is dismissed.
"James A. Jerome"
CHIEF UMPIRE
OTTAWA
April 21, 1995