CUB 70582

R. C. STEVENSON, UMPIRE:

The claimant appeals from the decision of a Board of Referees dismissing her appeal from a Commission ruling that she was disqualified from receiving unemployment benefits because she had voluntarily left her employment without just cause.

The claimant left her employment in Woodstock, Ontario to move to Nova Scotia to care for her ill sister. There is evidence in the record that no other members of her sister's family were in a position to provide the care she needed.

The claimant was herself ill at the time of the Board of Referees hearing and she did not attend at that time.

The Board of Referees said:

FINDINGS OF FACT, APPLICATION OF LAW: The fact of the case is that the claimant voluntarily left her job to return to Nova Scotia to care for an ill sister. Leaving employment to care for an ill relative is a personal reason and not just cause in accordance with the Act. The Board notes there is ample established jurisprudence to the affect [sic] that leaving employment to care for an ill relative is a purely personal reason and is without just cause according to the Act. The Board further notes that the Insurance Officer has cited Federal Court and Canadian Umpire Benefits (CUB) decisions as established jurisprudence in cases relevant to the one at hand, concluding that while the claimant may have had good reason or good cause for leaving her job, she has not met the more stringent requirement of just cause according to the Employment Insurance Act.

The Board did not cite any reference to what it called "ample established jurisprudence'" In its written representations to the Board of Referees the Commission said it could not "consider with the support of case law, the claimant's sister to be immediate family covered by the aforementioned section of the Act."

Paragraphs 29(c)(v) and 29(c)(xiv) of the Employment Insurance Act say:

(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:

. . .

(v) obligation to care for a child or a member of the immediate family;

. . .

(xiv) any other reasonable circumstances that are prescribed.

Section 51.1 of the Employment Insurance Regulations provides:

For the purposes of subparagraph 29(c)(xiv) of the Act, other reasonable circumstances include

. . .

(b) circumstances in which a claimant has an obligation to care for a member of their immediate family within the meaning of subsection 55(2).

Section 55 of the Regulations prescribes the exceptions to the rule that one is not entitled to benefits while out of Canada. Those exceptions include absence for up to seven days to attend the funeral of one's immediate family, to visit a member of one's immediate family who is seriously ill or injured, or to accompany a member of one's immediate family for some medical treatments outside Canada. Subsection 55(2) defines the persons who are considered to be members of a claimant's immediate family. Included are children of a claimant's father or mother, i.e. a claimant's siblings or half-siblings.

It may also be noted that although the section of the Act that provides for the payment of limited compassionate care benefits - section 23.1 - contains a restricted definition of "family member" that has been expanded by section 41.11 of the Employment Insurance Regulations to include many classes of persons including siblings. The Canadian Oxford Dictionary defines "immediate family" as meaning "designating those of closest relation, usu. parents, children, spouses and siblings."

Reference may also be made to CUB 27081, a decision under an earlier version of the legislation which was upheld by the Federal Court of Appeal in Court File No. A-395-92.

The Board of Referees failed to consider paragraphs 29(c)(v) and (xiv) of the Act. The standard of review is correctness on questions of law. The Board's interpretation of just cause does not pass that standard.

The appeal is allowed.

Ronald C. Stevenson

UMPIRE

FREDERICTON, NEW BRUNSWICK
June 6, 2008