CUB 71623

GUY GOULARD, Umpire

The claimant worked for an employer until May 3, 2007. The claimant filed a benefit claim that was established effective May 6, 2007. The Commission determined that the claimant did not prove her availability for work because she did not have a childcare provider for her children and because she limited her availability to nursing positions when she did not have the necessary certificate to work as a nurse in another province. The Commission imposed two disentitlements as of May 6, 2007 under section 18(a) of the Employment Insurance Act (the Act).

The claimant appealed from the Commission's decisions to the Board of Referees, which allowed her appeal. The Commission appealed from the Board's decision to the Umpire. The appeal was heard at Montreal, Quebec, on December 4, 2008. The claimant attended the hearing and was represented by her spouse.

In this case, the claimant left her employment to follow her spouse to another province. Her reason for leaving was not in question. There were two reasons for the claimant's delay in beginning another nursing job. First, the claimant had taken some time to find a caregiver for her child, and second, she had to obtain her nursing certification in the other province. She had begun the process to obtain her nursing certification as soon as she had arrived in the other province. The process was supposed to take six to eight weeks. She indicated that she was available for work but had to wait for her certification.

The Commission was of the opinion that the claimant could not limit her job search to nursing positions because she did not have the necessary certification to work as a nurse and therefore should have looked for another type of employment.

The Board reviewed the undisputed evidence and found that the claimant had established her availability for work within the meaning of the Act because she satisfied the three availability criteria. The Board allowed the claimant's appeal.

On appeal from the Board of Referees' decision, the Commission submitted that the Board of Referees erred in law in finding that the claimant had established her availability for work within the meaning of section 18(a) of the Act. The Commission submitted that since the claimant could not accept employment as a nurse before obtaining her Ontario nursing certification, she could not be considered to be available for work.

The claimant's representative repeated that the claimant had begun the Ontario nursing certification procedure as soon as she had moved to the other province. He added that the claimant had worked up until the day before their move and that she had looked for work as soon as she had arrived in her new city of residence. He said that the only thing preventing her from starting a job was the delay in obtaining her certification. He repeated that the claimant had made every attempt to start working earlier and that the delay was beyond her control. He also indicated that he and his spouse had since returned to their original province, where the claimant was able to start working as a nurse immediately after returning.

In this case, the facts were not disputed. The claimant was prevented from returning to work because of child-care arrangements and the delay in obtaining her nursing certification. Those two problems were directly related to her moving for the purpose of following her spouse, who had moved for employment reasons.

Section 29(c) of the Employment Insurance Act 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. . . .

(Emphasis added)

In CUB 57874, Stevenson J. commented as follows :

In determining whether a claimant had just cause to leave a job the Employment Insurance Act requires us to have regard to all the circumstances - including economic circumstances. Failure to consider and give sufficient weight to such circumstances is an error of law. I refer to my decisions in CUBS 35229, 46437 and 54416.

When a claimant leaves an employment because of the obligation to accompany a spouse, the claimant must have a reasonable amount of time to make arrangements following the move (CUB 57793). In this case, those arrangements included the need to obtain certification so that the claimant could resume working as a nurse. The Board of Referees determined that, under the circumstances, the claimant showed that she was available for work within the meaning of the Act.

With respect to reconsideration and appeal procedures in Employment Insurance matters, Parliament provided for a tribunal consisting of three members of the community in the claimant's region so as to ensure that the tribunal is aware of and takes into account regional circumstances related to the issues.

The case law holds that the Board of Referees is the trier of fact in assessing the evidence and the testimony before it. The Federal Court of Appeal made the following statement on this issue in A-1036-96:

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.

The case law (A-547-01, A-600-93, A-115-94, A-255-95 and A-97-03) also holds that an Umpire must not substitute his or her opinion for that of a Board of Referees unless its decision appears to have been made in a perverse or capricious manner or without regard for the material before it. In A-115-94 (supra), Desjardins J. made the following comment:

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, there was, moreover, significant evidence to support the conclusion of the majority.

In A-547-01 (supra), Létourneau J. stated that the role of an Umpire was limited to deciding whether the view of facts taken by the Board of Referees was reasonably open to it on the record.

More recently, in A-97-03 (supra), Sexton J. made the following statement:

In A-610-01, supra, this Court held that applying the pragmatic and functional approach, where an Umpire is reviewing a decision of a Board involving a mixed question of fact and law, the standard of review should be reasonableness simpliciter. In A-123-03, 2003 FCA 377, this Court also held that whether an employee has just cause for leaving employment is a mixed question of fact and law to be reviewed on a reasonableness standard.

According to the Supreme Court of Canada in [2003] 1 S.C.R. 247, 2003 SCC 20, a decision is unreasonable only if there is no line of analysis within the reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived.

In this case, the Board summarized and analysed the evidence in the docket and the evidence submitted at the hearing. Unfortunately, the Board's decision is rather brief. However, the Board pointed out the circumstances that prevented the claimant from beginning to work earlier.

The Board of Referees' decision is entirely consistent with the evidence in the docket.

The Commission did not show that the Board of Referees erred in its decision.

Consequently, the appeal is dismissed.

Guy Goulard

UMPIRE

OTTAWA, Ontario
December 19, 2008