IN THE MATTER OF the Unemployment Insurance Act,
R.S.C. 1985, C. U-1
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IN THE MATTER OF a claim for benefit by
Joan E. Dueck
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IN THE MATTER OF an appeal by the Claimant from a
decision of the Board of Referees given on
July 26, 1995 at Moncton, New Brunswick
Appeal heard at Moncton, New Brunswick on April 26, 1996
CORRESPONDING FEDERAL COURT DECISION: A-535-96
DECISION
THE HON. R. C. STEVENSON, UMPIRE
The claimant did not appear at the time and place fixed for the hearing of her appeal. The assistant registrar contacted her by telephone. She had overlooked the hearing date and agreed that the appeal be disposed of on the record.
Ms. Dueck was employed by RSB Logistic Inc. in Saskatoon. The man with whom she had been living in a common law relationship for eight months, and whom she apparently intends to marry, was transferred by his employer from Saskatchewan to Moncton. Ms. Dueck voluntarily left her job in Saskatoon in order to move to Moncton with her fiancé.
The Commission said she was disqualified from receiving benefits because she had quit, i.e. voluntarily left, her employment without just cause. Ms. Dueck appealed to the Board of Referees. The Board dismissed her appeal. It said:
Leaving employment in order to move to another locality is without just cause since one is expected to remain in the current employment until other work is secured.
The claimant is living in a common-law relationship that is less than 12 months at time of claim and does not plan to marry before 1996.
According to the Unemployment Insurance (UI) Act and Regulations the claimant failed to show that she had no other reasonable alternative but to leave her job.
Ms. Dueck appeals to the Umpire. Her quarrel is, of course, with the distinction that is made between persons who have entered into formal marriages and those who have chosen to live together without that legal formality.
Subsection 28(4) of the Unemployment Insurance Act says that just cause for leaving an employment exists where, having regard to all the circumstances, including several specific circumstances set out in the subsection, the claimant had no reasonable alternative to leaving the employment. One of the circumstances listed in subsection 28(4) is the obligation to accompany one's spouse to another residence.
A common law husband or wife is not a spouse within the meaning of the word in the Act.
Some statutes such as the Income Tax Act and the Canada Pension Plan now extend the definition of spouse to include a person of the opposite sex with whom one cohabits in a conjugal relationship throughout a 12-month period or with whom one shares parenthood of a child. While the Unemployment Insurance Act has not been similarly amended, it is in fact Commission policy to recognize such persons as spouses.
In other words, the Commission considers leaving employment to accompany a common law spouse with whom one has lived for at least a year to be just cause although the Unemployment Insurance Act does not touch on such situations.
In cases under the Income Tax Act or the Canada Pension Plan Parliament has imposed an arbitrary endurance or durability test of one year for those in common law relationships, without children. A person with whom one has lived for 364 days or less is not considered a spouse; if the relationship passes the 365 day mark, the parties are considered to be spouses.
The Commission has arbitrarily adopted the same rule in the absence of a statutory provision.
Associate Chief Justice Jerome has recently said that since Commission policy treats persons who have lived in common law relationships for a year as spouses within the meaning of section 28(4)(b) of the Unemployment Insurance Act, the Commission is precluded from arguing that in other cases "spouse" should be given its ordinary meaning of a married person. See CUB-28344 (Shaw). In another recent decision Justice Reed dealt with the case of a woman who moved from Regina to Ottawa to begin living with a man whom she later married. She had a four year old son who had developed a de facto child-parent relationship with his mother's friend. Justice Reed said that to require the claimant to either give up the relationship for an indefinite period or to marry immediately did not present reasonable alternatives to leaving her employment. She held that the claimant in that case was not disqualified from receiving benefits. CUB-27800 (Johnson).
The Board of Referees referred to the general rule that one who does not make some effort to find other employment before leaving a job is not considered to have just cause to leave the employment she has.
They also referred to the fact that the common law relationship in this case was of less than 12 months duration. In my view the Board failed to properly address the issue of whether having regard to all the circumstances Ms. Dueck had no reasonable alternative to leaving her employment. That was an error of law.
In this case one must consider the distance factor. It would be virtually impossible for Ms. Dueck to conduct a job search in the Moncton area while living and working in Saskatoon. The expense of travelling from Saskatoon to Moncton would make it difficult, if not financially impracticable, for one living and working in Saskatoon to come to Moncton to look for work before giving up her job in Saskatchewan. It is a case where I conclude, having regard to all the circumstances, that the claimant had just cause to leave her employment. That conclusion can be reached within the language of subsection 28(4) without any suggestion that the umpire is attempting to change the provisions of the Act.
The appeal is allowed and the Commission's decision disqualifying Ms. Dueck from receiving benefits is set aside.
RONALD C. STEVENSON
Umpire
Fredericton
15 May 1996