CUB 71254

GUY GOULARD, Umpire

The claimant worked until May 30, 2007. He applied for employment insurance benefits and an initial claim was established effective June 3, 2007. The Commission determined that the claimant had voluntarily left his employment without just cause and imposed an indefinite disqualification effective June 3, 2007.

The claimant appealed the Commission's decision to a Board of Referees which dismissed his appeal in a majority decision. He appealed the Board's decision to an Umpire. This appeal was heard in Bathurst, New Brunswick on October 3, 2008. The claimant was present with his wife, who assisted him.

The reason given by the claimant for leaving his employment in Ontario was that he and his wife decided to move to New Brunswick so they could take care of the claimant's elderly mother. The claimant described his mother's situation in exhibits 5, 8, 11 and 13. The claimant's mother and her living conditions are well described as follows in exhibit 11:

"As mentioned in my previous letter, my father succumbed to cancer on May 25, 2006. He died peacefully at home. Those were his wishes, to be at home and not in a hospital bed. Needless to say, his wishes required my presence here for an extended period of time. I would like to mention that I made a total of six trips to New Brunswick from Ontario in 2006. I was thankful to the employer for their kind understanding and support during my period of bereavement.

My mother remained at home alone after my father's passing. I kept in close contact by phone and did my best to comfort her from afar. In the fall of 2006, she underwent numerous testing, {stress test, holter monitor, electrocardiogram} she was having palpitations. On several occasions, my mother was weepy over the phone and was depressed over spending so many nights alone in the house. As the fall set in, she became more secluded as the weather did not permit her to go about as easily. She also had the task of going to the basement to make fire in the furnace as the heating is a wood burning furnace. During one of my visits home in 2006, my mother asked me to make a railing to go downstairs to the basement, she found it was safer for her to have something to hold on to while going up and down the stairs. This was done for her. It became obvious to me that it was not safe or healthy for my mother to be alone in her home at her age. I became very worried about her and I felt it was my responsibility to take the situation in my hands and help her remain at home as were her wishes.

My wife and I discussed the situation at length with our boys. The boys said they would support our decision and they trusted it would be the right one.

Unfortunately, about February, 2007, while my mother was bringing a pail of ashes to dump in the field she slipped on an icy patch and twisted her ankle and hurt her upper chest while trying to support herself on a tree. Her family doctor saw her and told her she had a torn ligament in her ankle and she should try and stay off it as much as she could and gave her anti-inflammatories to help with the pain. This unfortunately, made me even more worried about her as she would have trouble getting around in the house to make her meals, and daily chores. I made another trip home in May of 2007, my mother expressed wishes that she would like to have me move with her if it was at all possible. She understood how this move would impact my family, but she felt that she needed me to be with her. Her words were "just come home."

At exhibit 13, the claimant explained why he had not considered putting her mother in a senior's apartment. He also explained in detail why there was no one else who could care for his mother. The claimant's sister lives in British Columbia and all the claimant's other family members and friends are elderly and could not be of assistance.

The claimant brought to the Board's attention recent newspaper articles in regard to the lack of services for the elderly and efforts to find alternatives for hospitalization by facilitating home care for the elderly.

The claimant appeared before the Board of Referees. There is no indication of what the claimant would have stated before the Board as its decision is silent in this regard.

The Board's majority members summarized the claimant's evidence in the following words:

"His mother is 80 years old and could no longer be alone. He had not considered setting his mother up in a senior's (sic) apartment or hiring someone to come in and look after her. He felt he needed to be with her personally."

The Board's majority dismissed the claimant's appeal for the following reasons:

"The claimant has not shown that there was an element of urgency, necessity of compulsion for him to quit immediately without first obtaining other employment before leaving. His move was due to personal reasons which cannot justify voluntarily leaving one's employment.

The claimant did not convince the Board that he exhausted all the alternatives before making the decision to leave his employment before moving to N.-B. We consider that his decision was more a "moral" decision from his part rather than a health decision needed from his mother's side."

The minority's summary of the evidence and the reasons why this member would have allowed the appeal read as follows:

"The facts that I base my decision on are:
1. the credible explanation of the claimant.
2. Article 29 c)(v) obligation to care for a child or a member of the immediate family
3. the claimant felt that he had an obligation to come home and care for his mother because of her deteriorating health.
4. he had a moral obligation to take care of his mother after his father's death.
5. the claimant feel that the level of care in a nursing home, senior apartment or having some look after her in her house would be the same level as having him and his wife to take care of her. The moral support that his mother would get would help her health and moral."

Paragraph 29(c)(v) provides specifically that an obligation to care for a member of a claimant's immediate family can constitute just cause for leaving one's employment. The claimant had explained that this was the reason he had left his employment. He had looked for other employment before moving. His intention was not to become unemployed. He had stated that he started looking for employment shortly after arriving in New Brunswick. At the hearing before me, the claimant added that he and his wife have found employment and are now working.

It was incumbent on the Board's majority to at least address the claimant's evidence in light of paragraph 29(c)(v) of the Act. (CUBs 56569 and 55033). The majority members failed to do so and thereby erred in law.

The minority member, on the other hand, did take this legislative provision in arriving at his (her) conclusion.

I find that the majority Board members erred in law and their decision is set aside.

I find that the evidence in this case clearly established that the claimant had left his employment to care for his elderly mother. He described in very clear language his mother's circumstances; her way of living in her community all her life and in her home for some 50 years, her desire, such as her own mother's to continue living in her home, something she could not do without assistance. As the claimant explained, it was difficult for him and his wife to leave Ontario, where they worked and had children, to move to care for the claimant's mother. They looked for employment and succeeded. This is likely one of the exact situations that paragraph 29(c)(v) was intended to cover, as the Board's minority member recognized.

Accordingly, the claimant's appeal is allowed and the Board's majority is set aside.

Guy Goulard

UMPIRE

OTTAWA, Ontario
October 17, 2008