CUB 49560

IN THE MATTER of an appeal to an Umpire by the claimant from a majority decision by the Board of Referees given on June 2, 1999, at Peterborough, Ontario.

DECISION

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

The claimant was employed by Unionville Home Society until April 2, 1999 when she voluntarily left her employment. In Exhibit 3-1 the claimant stated that she left her employment because it was too costly to live in Toronto. This is confirmed by the claimant in her letter of appeal, Exhibit 9, where she states:

"My primary reason for quitting my job in Markham and moving to Lindsay was to reduce our cost of living in housing and other related expenses."

"My husband is under the care of Doctor Grassman at Mt. Sinai Hospital in Toronto for a breathing problem called asthma. Our suburban Lindsay location has little or no air pollution which is beneficial for his breathing problem."

The decisions relied upon by the claimant in Rust Mullin, Chafe - and - Dueck are not applicable as the Federal Court stated that the principle that one of the partners had to be assured of other employment before moving was not a prerequisite stated in the Legislation.

(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.."

In CUB 21681 Mr. Justice Joyal considered the term "having regard to all the circumstances" where he said:

"When the statute says 'having regard to all the circumstances', it imposes a consideration of the totality of the evidence."

In my opinion, the Board of Referees has not considered the totality of the evidence.

The claimant's representative, her husband, stated to me that he and his wife had been married for over 40 years. In leaving her employment to be with her husband I find support in the words of Mr. Justice Houston in CUB 28982 where he stated:

"However, in the particular circumstances in this appeal and perhaps taking a liberal rather than a literal interpretation of the statute, I find the claimant acted as any loving, intelligent spouse would have acted. Obligation is defined in the same Oxford dictionary as inter alia 'binding agreement, written contract or bond, a duty."

The decision of Mr. Justice Houston was upheld by the Federal Court of Appeal speaking through Mr. Justice McDonald where he said:

"Despite the forceful arguments advanced by Ms. Osoko on behalf of the Applicant, we have not been persuaded that on the facts of this case the learned Umpire committed any reviewable error in deciding that the Respondent had not left her employment without just cause."

"All relevant circumstances with respect to the given situation must be taken into consideration."

In my opinion this has not been done and I support the position adopted in the minority decision.