IN THE MATTER OF the Unemployment Insurance Act, 1971
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IN THE MATTER OF a claim for benefits by BARBARA J. GARDNER
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IN THE MATTER OF an appeal to an Umpire by the claimant from the decision of the Board of Referees given at Vancouver, British Columbia, on September 20, 1994.
REED, J.:
The claimant appeals a decision of The Board of Referees that found the claimant left her employment without just cause.
The Board asked itself whether paragraph 28(4)(b) of the Unemployment Insurance Act, R.S.C. 1985, c. U-1 could apply to the claimant's circumstances. It decided that it could not because the Federal Court of Appeal had decided, in Attorney General of Canada v. Landry (A-1210-92, November 24, 1993), that in order for there to be a spousal relationship under that paragraph the individuals concerned must have shared a common household and they must have cohabited. The Board concluded that there had been no such sharing of a common household in this case and therefore just cause did not exist when the claimant left her employment and moved from Ontario to British Columbia.
In the first place, the Landry decision is not as narrowly framed as the Board indicates. The Federal Court of Appeal in that case found that the claimant and her fiancé were not spouses, but sent the appeal back to the Umpire to assess whether or not "having regard to all the circumstances ... the claimant had no reasonable alternative ...". Secondly, at the time of the Landry decision the test that the claimant had to meet under paragraph 28(4)(b) was to demonstrate that there was "no reasonable alternative to immediately leaving" the employment. That wording was amended on April 2, 1993, to remove the word "immediately". Thus there is no longer a requirement that urgency be demonstrated in a decision to leave employment. The test is one that requires an evaluation of all the circumstances, of which the existence of any of the circumstances described in paragraph 28(4)(b) is only one facet. The Board erred in asking only whether the claimant and her partner were spouses. The Board's decision is therefore set aside and I will render the decision the Board should have made.
The claimant lived in Ontario. She met her now common law husband when he was working there. They did not initially share common living accommodation in Ontario. In April 1993, he was transferred to British Columbia by his employer. He returned to Ontario for five weeks' holidays, in January 1994, and cohabited with the claimant. He returned on other occasions for shorter periods of time always cohabiting with the claimant.
At the end of June 1994 she quit her employment and moved to British Columbia, to live together with him in a common law relationship. They plan to get married sometime, but have not done so yet. Their relationship had stability about it before the claimant moved. They had known each other for four years. The claimant moved at the end of June because she brought her two children, of whom she has sole custody, with her. It was not practical for her to move before the end of the school year.
The jurisdiction is clear that if the claimant and her spouse had married before she moved, there would be no doubt that just cause existed. If the claimant had moved to British Columbia to marry her spouse, within a short time period of coming here, there would have been just cause. If the claimant and her spouse had established a common law (cohabiting) relationship a year before the move, there would be no question that just cause existed. None of these clear cut circumstances exist in this case. That does not mean, however, that the enquiry ends. In the present case, the relationship was well established before the move. The move to British Columbia by her now spouse was at his employer's behest. When he returned to Ontario, he and the claimant cohabited. The distance between the two locations was great. When the claimant came to British Columbia she brought her two children with her. One does not uproot two children and move them half way across the country without there being a significant degree of commitment in the relationship. When she arrived the claimant and her children moved in with her now spouse and they have lived as a family ever since.
I do not think I have to consider whether there was a spousal relationship before the claimant moved, but I note that in CUB 28344 - Shaw (April 21, 1995) the Associate Chief Justice stated that it was a fettering of discretion for the Commission to adopt a one-year requirement with respect to common law spouses "as though it were some extra statutory criteria which a claimant must meet in order to qualify for benefits". See also CUB 25880 Coldwell (October 21, 1994) and CUB 27800 - Johnson (April 7, 1994).
In this case the claimant's situation was no different than that of a person who moves to marry a fiancé, except that she and her spouse were establishing or continuing a common law relationship rather than one covered by a legal marriage. Having regard to all the circumstances, the claimant has met the requirement and shown that there was no reasonable alternative open to her. The Commission's decision that she be denied benefits because she left her employment without just cause is therefore set aside.
B. Reed
UMPIRE
VANCOUVER, British Columbia
July 16, 1996
2011-01-10