IN THE MATTER of the EMPLOYMENT INSURANCE ACT
- and -
In the matter of a claim for benefit by
Veronica GAGNON
- and -
IN THE MATTER of an appeal by the claimant
from the decision of a Board of Referees given
on February 27, 2001, at Bathurst, New Brunswick
D E C I S I O N
GUY GOULARD, Umpire
The claimant appeals the unanimous decision of the Board of Referees (the "Board") which upheld the Commission's determination that she did not qualify for regular employment insurance benefits because she quit her employment without just cause and that doing so was not the only reasonable alternative in her case.
The claimant worked for VON CANADA HOME SUPPORT from September 1, 2000 until November 17, 2000. On December 8, 2000, she applied for employment insurance benefits indicating that she had quit her employment to relocate with her common-law spouse who had been transferred to Bathurst. An initial claim was established effective November 19, 2000. The Commission later determined that the claimant had left her employment without just cause and imposed an indefinite disentitlement to benefits.
The claimant appealed the Commission's decision to the Board of Referees which, in a unanimous decision, dismissed the appeal. She now appeals the Board's decision to the Umpire. This appeal was heard in Bathurst, New Brunswick, on November 5, 2001. The claimant was present with her father, Paul Gagnon. The Commission was represented by M. Marc A. Deveau.
The claimant basically repeated the submissions she had presented in her letter of appeal to the Board (Exhibit 7). This letter reads as follows:
"I am appealing your decision to deny my application for El benefits. I have been informed that your decision was based on the fact that my common-law husband and I have not lived together long enough to be considered common-law spouses. The person at EI said I should contact Revenue Canada for a definition of common-law. When I contacted Revenue Canada they informed me that although Dan and I have not lived together for 12 months that we do qualify as common-law because Dan has a child for who we provide support and care. Although his child does not live with us full time we support him financially and care for him. Dan shares custody of his child and in the past year while we were together his child was in our care for two weeks in the summer, Easter Vacation, Thanksgiving weekend, Christmas Holidays including Christmas Day and several other weekends, and time periods when Dan had time off. We also attended his Christmas concert at his day care. His child is a very big part of our family and we are a family unit and a common-law couple according to Revenue Canada.
This past summer when Dan was told he was being transferred to Moncton NB he and I decided that we would remain living in Amherst NS, I would continue working my job there and Dan would travel the 40 minute drive to and from work each day. Then in September Dan got transferred to Bathurst instead of Moncton. He had to beat the new job right away so we had most of our belongings moved to Bathurst. I continued to work at my job for the next two and half months travelling to Bathurst every Friday and then back to my parents in Amherst to work through the week. This arrangement was not working so I gave notice at work and left. But before I gave my notice I checked with unemployment in Amherst and explained my situation and how many hours I worked and they felt I should have no problem receiving EI. I have tried looking for a job in my field but the fact that I am not bilingual has made this process difficult. I am willing to take a French course but without financial support I find it very difficult. Many people have left their jobs to follow their spouse and have not been denied their EI benefits. I feel I should not be denied mine. I am willing to attend a hearing in English. Dan my common-law spouse is also willing to attend the hearing."
She stated that she and her fiancé are still caring for his son as stated in Exhibit 7. The salary she was making as a babysitter was only $60.00 per week compared to roughly $400.00 in her position with Von Canada Home Support.
The Board's decision reads as follows:
"The appellant did not demonstrate just cause for voluntarily leaving her employment because she has not shown that she had no reasonable alternative to leaving. After considering all the evidence a reasonable alternative to leaving would have been to find employment in the area where she wanted to move before quitting her job.
She tells us she could not find work because she is not bilingual. Pursuant to sections 29 and 30 of the Act an indefinite disqualification is applied.
DECISION:
The Board of Referees, in a unanimous decision, maintains the Commission's decision."
Subsection 114(3) of the Employment Insurance Act requires that the Board's decision must include a statement of the findings of the Board on the issue of facts. That section reads as follows:
114(3) A decision of a board of referees shall be recorded in writing and shall include a statement of the findings of the board on questions of fact material to the decision.
In the Parks decision (A-321-97) Mr. Justice Strayer wrote:
"We are all in agreement that the Board erred in law in failing to comply adequately with subsection 79(2). Specifically we are of the view that it was incumbent on the Board to state, at least briefly, that it rejected critical parts of the evidence of the applicant on grounds of credibility, and why it did so. (...) The Board simply states its conclusions without explaining why it preferred one version of events to the other. While we do not interpret subsection 79(2) to require a detailed statement of findings of fact, we are of the view that the Board of Referees, to comply with that subsection, must when there is an issue of credibility state at least briefly, as part of its "findings ... on questions of fact material to the decision", that it rejects certain evidence on this basis and why. When it fails to do so it errs in law."
And in the McDonald decision (A-297-97) Mr. Justice Linden wrote:
"It is imperative for Boards of Referees to address the issues actually presented to them carefully and to explain their findings in coherent and consistent reasoning. Anything less is unacceptable."
In the case before me, the Board most definitely did not satisfy the requirements of subsection 114(3). There is no mention whatsoever of why the Board failed to take into consideration the numerous elements of evidence contained in Exhibit 7.
I therefore find that there is a fundamental flaw in the Board's decision. Section 117 of the Employment Insurance Act provides:
117. An umpire may decide any question of law or fact that is necessary for the disposition of an appeal and may
(a) dismiss the appeal;
(b) give the decision that the board of referees should have given;
(c) refer the matter back to the board of referees for re-hearing or re-determination in accordance with such directions as the umpire considers appropriate; or
(d) confirm, rescind or vary the decision of the board of referees in whole or in part.
I am aware that the jurisprudence has unequivocally established the principle that the Board of Referees is the primary tribunal for the finding of facts in employment insurance cases.
In the Guay case (A-1036-96), Mr. Justice Marceau of the Federal Court of Appeal wrote:
"In any event, it is the Board of Referees "the pivot of the entire system put in place by the Act for the purpose of verifying and interpreting the facts" that must make this assessment."
And in the Ash decision (A-115-94), Justice Desjardins of the Federal Court of Appeal, in dealing with the judicial review of an Umpire's decision on appeal from a majority decision by a Board of Referees, wrote:
"It is evident from the board's decision that both the majority and minority view had been canvassed. Although the majority could have ruled otherwise, they chose to disbelieve the respondent with regard to health as being the cause for leaving his employment. The umpire could not substitute her opinion for that of the majority. The board members were in the best position and had the best opportunity to assess the evidence and make findings with regard to credibility...
Counsel for the Commission agreed that the Board's decision was defective. He submitted that the matter should be returned to a newly constituted Board as the decision entails a determination of facts.
As provided in subsection 117 of the Act, an Umpire can decide any question of law or fact that is necessary for the disposition of an appeal. It is up to the Umpire to decide when he or she will proceed to make a determination of facts or send it back to a Board for that purpose. I have found no guiding principle as to when an Umpire should select one or the other of these options. I believe that in a given case where the uncontested facts, as established by either the oral or documentary evidence, support a finding that is consistent with strongly established jurisprudence, the Umpire can proceed to make the finding the Board should have made.
In this case, uncontested facts established that the claimant had left her employment to accompany her common-law spouse. She had found other employment, which paid substantially less than the one she had before but which, unfortunately, was the only one she could find. As suggested by an agent at the Commission, she consulted someone at Revenue Canada regarding the status of her relationship with her spouse. She states that this person informed her that they qualified as common-law spouses because they were caring for her spouse's child.
Over the years, there have been several decisions, from Umpires as well as from the Federal Court of Appeal, dealing with the interpretation of what is now paragraph 29(c)(ii) of the Employment Insurance Act. This paragraph reads as follows:
29(c) just cause for voluntarily leaving an employment or taking leave from an employment exists if the claimant had no reasonable alternative to leaving or taking leave, having regard to all the circumstances, including any of the following:
(ii) obligation to accompany a spouse or dependent child to another residence,
In 1992, the Federal Court of Appeal took a restrictive view of the term spouse in the application of this legislative provision. In this case, the claimant had left her employment to live with a friend whom she intended to marry a few months later. The Court held that persons who did not have a common household or were not bound by marriage could not be considered spouses for the purpose of this provision. Justice Pratte wrote:
"In arriving at this decision the Board assumed that two persons who do not have a common household or are not bound by marriage ties can nevertheless be spouses within the meaning of s. 28(4)(b). In our opinion this is an error.'
Following a well established jurisprudence that spouse within the meaning of paragraph 29(c)(ii) had to include common-law spouse, Parliament, in 2000, expanded the definition of spouse, for the purposes of the Employment Insurance Act, to include common-law partners.
The Commission has adopted a policy that a cohabitation period of at least 12 months is normally required to establish a common law-partner relationship. In CUB 28344, the Umpire held that the Commission could not impose such a policy as if it was part of the legislation. Associate Chief Justice Jerome wrote:
"There is no question the Commission is at liberty to implement a policy in order to assist in the exercise of its discretionary decision-making power. Accordingly, there can be no argument with its policy of including persons who have lived in a common-law relationship as spouses within the meaning of paragraph 28(4)(b) of the Act. Having done so, however, it is now precluded from arguing that in this particular case, the word "spouse" should be given its ordinary meaning of married people. Furthermore, the Commission is not at liberty to apply its policy as though it were some extra-statutory criteria which a claimant must meet in order to qualify for benefits. A public authority which errs in that direction fails to exercise the discretion bestowed upon it by statute. It is still bound, in making a determination under section 28 of the Act as to whether a claimant voluntarily left her employment without just cause, to take into account all the relevant circumstances of a particular case before it."
In that case, the claimant had left her employment to follow her common-law spouse with whom she had been living for approximately four months and planned to marry 8 months later. The employer had indicated that at the time the claimant left, it intended to lay-off a secretary due to economics and would not have been amenable to prolonged absences by the claimant while she sought other employment. The majority of the Board had concluded that the Act provided that "a perspective [sic] bride may show just cause for leaving employment to move to another area where her husband-to-be resides. It must also be established that marriage plans are definite and have been made for the immediate future." The Umpire held that there was evidence to substantiate the Board's finding that the claimant had just cause for leaving her employment and found that there was no basis to interfere with its decision.
In CUB 33865, the man with whom the claimant had been living in a common-law relationship for eight months, and whom she apparently intended to marry, was transferred from Saskatchewan to New Brunswick. The claimant left her employment to join him. The Board held that she had not shown just cause for leaving her employment for the following reasons as stated in the Board's decision:
"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."
The Umpire reversed the Board's decision, finding that the claimant had shown she had just cause and no other reasonable alternative but to leave her employment, considering all the circumstances of the case, including the fact that the parties had been cohabiting and planned to marry and in particular the long distance involved.
In CUB 20781, there had been no cohabitation prior to the move by the claimant to join her "husband-to-be". The claimant had not searched for employment before moving from Saskatchewan to Ontario. Some of the important factors considered by the Umpire, in deciding that the claimant had shown just cause, include the fact that the relationship between the future spouses included a de facto father-son relationship between the claimant's son and her husband-to-be. The Umpire noted that if the claimant had not moved, the benefits arising from the day to day interaction and support provided by the husband-to-be and the claimant's son would have been lost. The Umpire also noted that an "exclusive committed relationship" was well established before the husband-to-be was required to transfer because of a new posting as a R.C.M.P. officer, a transfer beyond his control.
In CUB 24562, the claimant had cohabited with her common-law spouse for eight months prior to his transfer and her decision to leave her employment to join him. It is also noted by the Umpire that "the claimant's young daughter regarded her mother's partner as her father, that the weekend travel was placing stress on the family, and that the claimant and her partner were striving to provide a stable family life for their child".
The issue the Board had to decide was whether the claimant had established just cause for leaving her employment pursuant to section 29 of the Act. The Board decided that the claimant had failed to show she had no reasonable alternative to leaving her job.
In Denise Landry (A-1210-92), the Federal Court of Appeal reminded the Board of Referees of the test to be used to determine whether a claimant has left his or her job without justification. Justice Denault wrote:
"Since the adoption of the new s. 28 of the Unemployment Insurance Act, the board of referees in a case like the one at bar does not have to consider whether it finds the claimant's conduct reasonable: what it must consider is whether the claimant left his employment in any of the circumstances described in s. 28(4)(a) to (e) of the Act, and if not, whether the claimant had no reasonable alternative to leaving immediately."
In the present case, the issue is therefore whether the claimant had established a just cause within the provisions of section 29, and if not, whether, considering all other circumstances, she had no other alternatives.
The claimant argued that she had just cause in that she moved because of an obligation to accompany a spouse. This raises two questions: was there a spousal relationship between the claimant and her "fiancé" and was there an obligation to move because of such a relationship.
In this case, the claimant had cohabited with her common-law spouse for several months. After his first transfer from Amherst to Moncton, he commuted the 40 minutes to and from work on a daily basis. When he was later transferred to Bathurst, commuting on a daily basis became impossible. The claimant then commuted on a weekly basis for two and a half month. On these facts, I conclude that along term, exclusive and committed relationship had been established prior to the claimant's move. Such a relationship, I find, meets the requirements of paragraph 29(c)(ii) of the Employment Insurance Act. This paragraph reads as follows:
29(c) just cause for voluntarily leaving an employment or taking leave from an employment exists if the claimant had no reasonable alternative to leaving or taking leave, having regard to all the circumstances, including any of the following:
(ii) obligation to accompany a spouse or dependent child to another residence,
As stated by the claimant, the commuting arrangements they tried for a while became too difficult so she looked for work and moved. A factor to also consider is the fact that the claimant expected her position to be terminated in the near future.
I therefore find that, in this case, the Board erred in law and in fact and I further find that the uncontested facts of this case and the relevant jurisprudence warrant that I replace the Board's decision with my decision which is that the claimant's appeal is granted.
GUY GOULARD
UMPIRE
OTTAWA, Ontario
November 30, 2001