TRANSLATION
IN THE MATTER of the EMPLOYMENT INSURANCE ACT
- and -
IN THE MATTER of a claim for benefit by
Maxime LAJOIE
- and -
IN THE MATTER of an appeal to an Umpire by the
claimant from a decision of a Board of Referees given
at Shawinigan Sud, Quebec on January 23, 2002.
DECISION
André Quesnel, Umpire
The Commission disentitled the claimant to benefits because he left his employment voluntarily without just cause.
The Board of Referees upheld that decision and dismissed the claimant's appeal.
The claimant's father explained that his son Maxime has been balancing work and school since he was 14 years of age.
The Board of Referees determined that the claimant left his employment to follow his parents, who were moving from the St Jérôme area to the St Tite area, and added "[TRANSLATION] ...furthermore, the claimant intended to find a job, like he always did, while he was attending school."
The Board of Referees concluded, however, that leaving employment to return to school did not constitute just cause within the meaning of the Act.
According to the claimant's father, the claimant did not leave his employment in August to return to school. At that time, the claimant was living with his parents in the St Jérôme area and, while he was working, was studying at the local CEGEP.
When his parents moved, the claimant was 19 years of age; he followed them and registered as a regular student at the closest CEGEP in the area, ie, the CEGEP in Trois Rivières, to continue his studies.
The claimant had been working as a grocery clerk while going to school since he was 14 years of age, and hoped to find a similar job in the area to which he moved with his parents.
The Board of Referees erred in failing to consider all the relevant evidence, particularly the specific circumstances of the claimant's voluntary leaving of his employment, ie, not to return to school, but because his parents moved to a location where he would continue his studies as he had before moving.
The Board of Referees erred in not asking whether, given all the circumstances, the claimant's voluntary leaving employment was the only reasonable alternative in his case.
Pursuant to subsection 29c)ii) of the Act, a just cause for voluntarily leaving employment exists if the claimant has to accompany a spouse or dependent child to another residence, or in any other reasonable circumstances that are prescribed. Given the circumstances listed in this subsection and the striking similarity between those and the claimant's situation, the Board of Referees should have taken those circumstances into account instead of concluding that the claimant's reason was simply to return to school.
The jurisprudence 1 states that a student taking full-time courses is not available for work within the meaning of the Act; however, there may be exceptions to that presumption:
While it is true that there is a presumption that a person enroled in a course of full-time study is generally not available for work within the meaning of the Act, at the same time it has to be admitted that this is a presumption of fact which certainly is not irrebuttable. It can be rebutted by proof of "exceptional circumstances". (Attorney General v. Mercier, [1977] 2 F.C. 389 at 390). ...The work record mentioned by the umpire is only one example of such exceptional cases, although in fact it may be the one most frequently encountered. There may certainly be others.
The claimant demonstrated that since the age of 14, he has worked while attending school. The claimant did not, as the Board of Referees claimed, want to be near his parents, but rather to continue living with them while attending school. By so doing, he chose the only reasonable alternative in his case, rather than living alone with all the attendant disadvantages. By acting in that fashion, he did not freely make a decision to cause others to bear the burden of his unemployment.
The Board of Referees erred in interpreting the evidence as it did and concluding that the claimant left his employment "[TRANSLATION] to attend the Trois Rivières CEGEP so as to be near his parents who were moving to St Tite" without asking the question required pursuant to the Act, ie, if, under the circumstances, the claimant left his employment with just cause.
The Board of Referees' error in interpreting the evidence authorizes me to intervene to make the decision that should have been made under the circumstances.
The claimant's appeal is therefore allowed and he is entitled to benefits.
The decision made by the Board of Referees on January 23, 2002 in this matter is rescinded.
André Quesnel
Umpire
Montreal, Quebec
October 17, 2002