IN THE MATTER OF the Unemployment Insurance Act
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IN THE MATTER OF a claim by
Patricia E. ACHTERHOLT
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IN THE MATTER OF an appeal to an Umpire by the
Claimant from a decision of the Board of Referees given at
KAMLOOPS, British Columbia, on November 9, 1994.
DECISION
REED J.
The claimant appeals a decision of the Board of Referees which found that she left her employment without just cause.
There are difficulties with the Board's decision. The majority decision (by two members) states in one paragraph "[t]here is no evidence of them (the claimant and her fiance) having a common-law relationship prior to their decision to relocate". In another paragraph it is stated "[t]he Board learned the claimant lived common-law since January 15, 1994". The claimant and her fiance had become engaged on May 4, 1994. They decided to relocate to Kamloops where her fiance was at that time living because he had a secure job there (Exhibit 8-1). The claimant did not move to Kamloops until September 1994. The dissenting Board member described the situation as one in which the claimant and her fiance had lived together for 10 months before the move. This statement coincides with the second of the above referred to statements in the majority decision and I therefore accept it as an accurate statement of the facts.
There is a second difficulty with the majority decision's summary of the facts. It states that "[t]here is no set date for their marriage". This is too categorical. The evidence is that the claimant and her fiance had tentative dates set for their marriage but the exact one which would be chosen depended upon factors outside their control, factors such as the priest's availability and the availability of the hall.
The confusion and error in the recitation of the facts in the majority decision is sufficient to justify setting that decision aside. There are, however, additional difficulties with the decision. The Board cites CUB 4652 as an example of the considerable jurisprudence to be taken into account in cases such as the present. No reference is made to more recent jurisprudence. The conclusion drawn by the majority, after a very minimal recitation of the facts, is:
. . . .
The Majority Board's decision is: Considering all the evidence as presented the claimant voluntarily left her employment with Beaver Foods Limited on September 09, 1994 for personal reasons which is without just cause within the meaning of the Unemployment Insurance Act.
This tells almost nothing about why the majority decided as they did. In addition, the reference to personal reasons not being just cause is simply inaccurate. One often finds this kind of statement in observations sent to the Boards of Referees and in the Boards' decisions. It is not an accurate statement of the law and can obviously be seen to be so on reading the listed circumstances found in subsection 28(4) of the Unemployment Insurance Act. Many of the circumstances listed are of a personal nature. For the various reasons given the Board's decision is set aside and I will exercise my authority to render the decision which the Board should have made.
The facts as I understand them from the material on the file and oral evidence given to me by the claimant's husband are as follow. The claimant and her now husband have known each other for about 10 years. They lived with their parents in Surrey. They developed a close stable relationship. The claimant's husband took employment in Kamloops, in January 1994, and commuted back to Surrey each weekend. He lived with the claimant, that is, they cohabited on those occasions. In May 1994, the became engaged with plans to be married. In June 1994, the claimant went to Kamloops for a visit, sought and obtained a promise of employment. The claimant's evidence was that she wrote "was hired and told to call when I came to Kamloops permanently". The claimant moved to Kamloops in September 1994, was sworn as an employee of the Liquor Distribution Branch, operated by the provincial government, and, then, had to await training for a short period of time. Before leaving Surrey, the claimant sought advice from the local CEIC office as to whether she would have difficulty receiving benefits if she acted as she planned. She was informed that there would be no problem because she was relocating to follow her future spouse.
Claimants are disentitled from receiving any benefits if they leave employment without just cause. Subsection 28(4) of the Unemployment Insurance Act states that just cause exists when "having regard to all the circumstances" including any of those that are specifically listed, a claimant has "no reasonable alternative to leaving employment". One of the listed circumstances is "obligation to accompany a spouse". The "obligation" is not a legal one but rather society's expectation that persons in a spousal relationship normally live together. A spousal relationship includes a common-law relationship. A contrary decision would constitute discrimination on the basis of marital status. The Commission has adopted a policy of treating a common-law relationship that has lasted for a year as a spousal relationship. On the facts, since the claimant and her fiance had only had such a relationship for 10 months, before the claimant moved, it is argued she does not qualify for benefits.
The requirement that a common-law relationship must have been in existence for a year before it will be treated as a spousal relationship is a policy decision only. 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 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, 1995).
Quite apart from when a spousal relationship will be said to exist, however, that circumstance is only one of many situations in which good cause for leaving employment will be found. I recently had occasion to review the law in this area in the appeal of Barbara Gardner (July 16, 1996). I do not think it necessary to set it out again here.
Applying the applicable law to the facts of this case, I note that the claimant had definite wedding plans before she moved; she had known her husband-to-be for a long period of time. They had had a stable relationship for a long time. The Board found there to have been a common law relationship of ten months duration. The claimant had sought and obtained employment in the location to which she was moving before she moved. In all the circumstances of this case, just cause for leaving her old employment existed. The Commission's decision that she be denied benefits because she left her employment without just cause is therefore set aside.
B. Reed
UMPIRE
OTTAWA, Ontario
July 29, 1996.