CORRESPONDING FEDERAL COURT DECISION: A-510-96
TRANSLATION
IN THE MATTER OF THE Unemployment Insurance Act
- and -
Claire BRISEBOIS of Vaucluse, Quebec
Appellant
- v. -
THE EMPLOYMENT AND IMMIGRATION COMMISSION
Respondent
DECISION
NOËL BARBÈS Q.C. J.
This appeal from the unanimous decision of a Board of Referees on April 27, 1994 came before me on February 12, 1996 in Joliette.
The appellant was a cook by trade. She received benefits, to which she was entitled, after January 31, 1993. She subsequently found employment with Restaurant Les Près in Montreal until May 9, when she voluntarily left her employment.
The question in issue is to determine whether she had just cause in the legal sense for leaving her employment and continuing to claim that she was entitled to receive unemployment insurance benefits.
When the Commission found out that the claimant had voluntarily left her employment, saying that her feet hurt because she had to work for long periods of time standing up, she was disqualified from receiving benefit effective May 10, 1993. The appellant had by then received a total of $9,724.00.
In the appeal to the Board of Referees, it was agreed that the correction suggested by the Commission's officer should be made to the benefits received before May 9, 1993.
However, the Board of Referees did not agree on May 27, 1994 that the claimant had left her employment with Restaurant Les Prés in May 1993 for just cause, which would be one of the reasons given in section 28(4) of the Act, or in any event, serious grounds for a reasonable person to decide that it is not possible to continue working.
Ms. Brisebois told an investigator on October 27, 1993 that she decided to leave her employment as a cook where she had to work standing up because her feet hurt.
She did not think that she had to consult a doctor or receive treatment, she did not ask for leave, and she did not try to find a less tiring job. She did not look for other work before she left her employment, or after. She said that she wanted to work in a home for the elderly where the working conditions would be less strenuous.
The Board noted that the claimant had not given illness as the reason that forced her to give up her usual work as a cook in a restaurant so that she would not get too tired. This is the reason why the initial decision by the Commission's officer was upheld.
The appellant appealed this unfavourable decision and claimed that the Board of Referees had refused to exercise its jurisdiction. She claimed an error in law in that she was required to provide medical proof of a serious reason why she could no longer work standing up for long periods of time each day, whereas the Act does not require this.
She also claimed that the decision was unreasonable, given the evidence presented.
There is no doubt that the burden of showing that she left her employment in May 1993 for just cause fell on the appellant.
Section 28(3) states that "employment" refers to the claimant's last employment immediately prior to the time the claim for benefit is made unless otherwise prescribed by the regulations. In April 1993, the following details were added in section 59.1(1) of the Regulations:
Subject to subsection (2), for the purposes of section 28 of the Act, "employment" refers to the last employment lost by the claimant by reason of the claimant's own misconduct, or employment that the claimant left voluntarily without just cause since the commencement of the qualifying period.
(2) For purposes of section 28 of the Act, where the claimant's last employment immediately prior to the time the claimant's claim for benefit is made is for a period of less than five days, "employment" shall also refer to the employment of the claimant immediately prior to the claimant's last employment.
CUB 24697 re: Dennis RANDALL gives more on this subject.
Therefore, the appellant's last job in this case was the one that she started in early May 1993.
With respect to medical evidence of a physical reason that would prevent her from working in a painful situation, the Act does not formally require that evidence of a just cause be given strictly by means of medical proof. It does require that the evidence of working conditions that are painful or harmful to health be convincing. In this case, the appellant did not really show that she had to leave her employment because her feet hurt so that she could no longer work standing up.
She did not see a doctor in order to have her sore feet treated. She said that she thought she would be able to work as a cook in another place. However, she did not make any job searches before leaving the place where she had been working for a number of months. She also did not decide to ask for temporary leave to rest.
It should be stated that claimants who want to receive unemployment insurance benefits must give very serious reasons for leaving their employment. In the case of Ms. Brisebois, the pain that she felt working for long periods of time standing up would have had to be quite serious for her to have gone for medical treatment.
Finally, anyone who claims to suffer from an illness and states that he or she is unable to work, could claim sickness benefits under sections 14 of the Act and 47 of the Regulations by providing proof.
47(1) A claimant who, pursuant to paragraph 14(b) of the Act, alleges that the claimant is incapable of work by reason of illness, injury or quarantine shall at the claimant's own expense provide to the Commission a certificate completed by a medical doctor or other medical professional supplying such information with respect to the nature and probable duration of the illness, injury or quarantine and any other circumstances relating thereto as proves the claimant's incapability to work.
This section is quoted to show the importance of the proof required from whoever claims benefits under the Unemployment Insurance Act, or whoever has serious reasons for leaving his or her employment.
The Board of Referees did not err in law in this case. It did not claim that the Act required the insured to provide medical proof of any serious illness that the person had. The Board simply stated that a medical certificate confirming the fact that a serious difficulty existed, instead of an excuse, would have been desirable.
Ms. Brisebois did not think that she had to provide convincing evidence of a situation that she claimed forced her to leave her employment all of a sudden. In this case, leaving her employment was not the only reasonable alternative. Although this claimant's case arouses sympathy, she can be reproached for failing to use reasonable means to improve her situation before leaving her employment definitively.
I am convinced that the evidence in this case supports the decision made by the Board of Referees. No error was committed in the assessment of the facts provided in evidence before or during the hearing of this case.
CONSEQUENTLY, the appeal is found to have no basis in fact or in law.
NOËL BARBÈS
Hon. Noël Barbès, Q.C.
Umpire
AMOS, March 28, 1996
2011-01-10