CUB 46356

IN THE MATTER of an appeal to an Umpire by the claimant
from a decision by the Board of Referees given on
November 19, 1998, at Barrie, Ontario.

DECISION

The claimant was represented by her counsel, Ms. Micheil Russell. The Commission was represented by it's counsel, Mr. Derek Edwards.

The claimant is appealing an indefinite disqualification pursuant to Sections 29 and 30 of The Employment Insurance Act for having voluntarily left her employment without just cause.

A second issue dealt with by the Board of Referees was a disentitlement pursuant to Section 18 (a) of The Employment Insurance Act for failing to prove her availability for work while attending a course of instruction. No appeal is taken by the claimant on this issue. It was admitted by her counsel that the claimant was not available for work in Barrie between August 22, 1998 and September 14, 1998.

The claimant moved from Pennetang to Barrie to live with her fiancee who had obtained a job in Barrie.

The claimant and her fiancee had been living together for approximately 7 months and it was their intention to marry in the year 1999. She stated that she was not able to commute as she does not possess a driver's license. On this information the Commission determined that the claimant had not demonstrated just cause for voluntarily leaving her employment.

The Board of Referees dismissed her appeal. She now appeals to the Umpire on the grounds that the Board of Referees erred in law in wrongly applying paragraph 29 (c) (ii) of The Employment Insurance Act, which provides that just cause may exist where a claimant is obliged "to accompany a spouse or dependant child to another residence".

"because he was successful in gaining employment in Barrie which bettered his employment situation..."

This is evidence of other reasonable circumstances which the Board of Referees ignored.

"As has already been said, the fact that there was neither a marriage nor a one year period of prior cohabitation is not determinative of whether just cause exists. In assessing the reasonableness of the claimant leaving her job and whether there was any reasonable alternative, one has to consider the consequences of her not having done so. The claimant and her now husband had an exclusive committed relationship before they left Regina. Like many couples to-day they intended to get married some time but this was not a pressing concern. Living together without having first gone through some form of legal marriage is now socially acceptable. That, the applicant moved with her 4 year old son from Regina to Gatineau to live with her now husband, itself, demonstrates a committed relationship."

Although in the matter before me the claimant and her fiancee do not have a child but there is evidence of a committed relationship.

In CUB 33865 Umpire Stevenson, in considering the meaning of the word "spouse" stated in part as follows:

" ... 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 in law..."

"The common-law spouse did not have a job, but found one after the move to Barrie."

"Even granting a common-law relationship due to an intention to marry, the Board found that the claimant's spouse had no job to go to." (my emphasis)

I am satisfied that there was no evidence to substantiate the Board of Referees, finding that the claimant had no just cause for leaving her employment and accordingly the appeal is allowed and the Commission's decision disqualifying the claimant from receiving benefits is set aside.