IN THE MATTER of the EMPLOYMENT INSURANCE ACT
and
in the matter of a claim for benefit by
Pamela Reeves
and
IN THE MATTER of an appeal to the Umpire by the Commission from a decision of a Board of Referees given at Windsor, Ontario, on March 19, 2003.
DECISION
Hon. Carl Zalev, Umpire
[1] This is an appeal by the Commission from the decision of the board of referees allowing an appeal of the decision by the Commission denying the claimant's claim for benefits, on the ground that she voluntarily left her employment with just cause pursuant to s. 29 and 30 the Employment Insurance Act.
[2] The claimant lived and worked in Woodstock, Ontario. She was employed at $9.00 per hour. Her work was cut to 21 hours per week. As a single mother she found this was not sufficient to pay for the necessaries of life for herself and her child, and had gone into debt. She had been dating her "boyfriend" since May 2002. They never lived together and they did not have any children together. They had no immediate marriage plans. She looked for other employment in Woodstock but the opportunities were limited. She decided to leave Woodstock and decided to move in with her boyfriend in Windsor to save expenses and to look for employment in Windsor. The board ended its decision under the heading "Findings of Fact, Application of Law" as follows:
"The nice neat cut-and-dried solutions to working life proposed by the Act and the Regulations often bear little resemblance to the real world of human experience. The fact is probably the greatest justification for the existence of these boards.
"While it is important for every working Canadian to pull his/her weight, this board finds that no one should have to join the ranks of the 'working poor' working themselves into debt, to satisfy rigid legal stipulations, because of their employment, through no fault of their own, can no longer provide a viable means of support. Given the board's understanding of the appellant's situation, in totality we believe she did what a prudent person would do."
The appeal was allowed.
[3] Although the notice of appeal to the Umpire lists all 3 grounds of the appeal set out in s. 115(2) of the Act, Mr. Edwards appearing for the Commission directed his submissions only to error of law. He submitted that the board did not apply the appropriate test of "just cause". The burden of proving that the claimant left her employment in Woodstock without just cause is on the Commission. In view of the facts found by the board, the only reasonable conclusion to be drawn from the claimant's leaving Woodstock to move in with her boyfriend in Windsor and to look for employment in Windsor is that she left her employment voluntarily. I am satisfied that the Commission has met the burden and I find that the claimant voluntarily left her employment in Woodstock. The burden of establishing just cause now shifts to the claimant. Section 29(c) of the Act provides:
"Just cause for voluntarily leaving an employment or taking leave from 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:"
[4] Section 29(c) then sets out 14 circumstances, which may be taken into consideration in determining if the claimant had no reasonable alternative to leaving her employment. The list includes:
"(ii) Obligation to accompany a spouse, common-law partner, dependant child to another residence".
[5] This is the only listed circumstance which might apply. However, it does not apply. Firstly the claimant chose to leave Woodstock and was under no obligation to do so. Secondly, her boyfriend was not a "spouse" nor was he a "common-law" partner. They had never co-habited before she moved in with him in Windsor, nor was she under any obligation to accompany a dependant child to another residence, assuming that her child was dependant. (The board only described him/her as "a young child") The child was not transferred to Windsor by some outside authority. She took the child to Windsor to be with her and her boyfriend. The list in s. 29(c) is not exhaustive. All the circumstances must be considered on the issue of "no reasonable alternative". Obviously she had good cause for leaving Windsor. There is no evidence that she approached her employer for more hours. There is no evidence that she had reasonable assurance of a job in Windsor in the near future. The board went off on a sociological discourse before reaching its conclusion that leaving her job and moving to Windsor is what a prudent person would have done; although I might have reached a different conclusion. The board, like a jury is the voice of the community, bringing experience and commonsense into its deliberations and conclusions. I cannot say that it was not open to the board to reach the conclusion it did. This is not to say that I necessarily agreed with the expressions of sociological opinions set out in their reasons. The appeal is therefore dismissed.
"Carl Zalev"
Carl Zalev, Umpire
April 21, 2004
Windsor, Ontario