In the Matter of the Employment Insurance Act,
S.C. 1996, c. 23
and
In the Matter of a claim for benefits
and
IN THE MATTER of an appeal by the Claimant from the decision of a Board of Referees given at North York, Ontario on July 28, 2006
Appeal heard at Toronto, Ontario on September 28, 2007
DECISION
R. C. STEVENSON, UMPIRE:
The claimant appeals from the decision of a Board of Referees dismissing her appeal from a Commission ruling that she was disqualified from receiving unemployment benefits because she had voluntarily left her employment without just cause.
The claimant had been suffering from a chronic illness since at least July 2005. In March 2006 she saw a specialist who recommended surgery and also gave her a "leave note from work" until May 23 when the doctor expected she would be ready for surgery. The record of employment issued by the employer dated March 31 shows March 24 as the last day of work for which the claimant was paid. The record does not disclose whether she applied for or received sickness benefits under the Employment Insurance Act.
The claimant was apprehensive of surgery and decided to seek medical advice in China. In May she asked her employer for a five week leave of absence. The employer denied her request and she voluntarily gave up the employment. She applied for regular unemployment benefits on May 26.
The Commission said that voluntarily leaving her job was not her only reasonable alternative. In its written representations to the Board of Referees the Commission said:
... a reasonable alternative to leaving would have been to speak to her doctor about her concerns with having surgery. She could have asked the gynecologist for possible alternative treatment or spoken to the family doctor about getting a referral for a second opinion before deciding that she had to quit her job and go to China for treatment.
The Board of Referees said:
The legislation concerning voluntary leaving without just cause is found in Section 29 of the EI Act. Subsection (c) lists several reasons that can be advanced to justify voluntary leaving; the Claimant was unable to point to any one of these to support her contention that she had just cause and the Board cannot disagree with the Commission.
The Board recognizes that every person has the right to make decisions relating to their own health and does not dispute that the Claimant in the case under review did what she felt was right in her particular case. However, the case before the Board was whether the Claimant had just cause under the EI Act and concluded that she did not.
Section 29(c) of the Employment Insurance Act says just cause for voluntarily leaving an employment exists if the claimant had no reasonable alternative to leaving, having regard to all the circumstances, including any of 14 enumerated circumstances. The Board of Referees erred in law when it only considered the enumerated circumstances and in failing to apply the overall test, i.e. whether the claimant had no reasonable alternative to leaving having regard to all the circumstances.
I will give the decision the Board should have given.
The claimant was suffering from a serious medical condition. She was entitled to seek medical advice of her choice. The issue is not whether the treatment she sought was available in Canada. Having made the decision to go to China and being denied a leave of absence for that purpose she had no reasonable alternative to giving up her job.
The appeal is allowed.
Ronald C. Stevenson
UMPIRE
FREDERICTON, NEW BRUNSWICK
October 15, 2007