CUB 69674

GUY GOULARD, Umpire

The claimant applied for employment insurance benefits on June 28, 2006. She indicated that she had left her employment to care for her husband following his surgery as he required her to care for him. A claim was established effective June 25, 2006. The claimant also provided a medical certificate indicating that she was unable to work due to depression and anxiety. The Commission determined that the claimant was not available for work as, if she had not been ill, she would have unable to work due to her personal responsibilities. The Commission imposed an indefinite disentitlement pursuant to subsection 18(a) of the Employment Insurance Act from June 25, 2006.

The claimant appealed the Commission's decision to a Board of Referees which allowed the appeal. The Commission appealed the Board's decision. This appeal was heard in Winnipeg, Manitoba on October 31, 2007. The claimant was present.

Although the claimant had indicated in her application for benefits that she was not available for work because she had to care for her husband, in her Notice of Appeal dated October 27, 2006 and during a telephone conversation with a Commission agent on October 30, 2006, she stated she had alternate care for her husband as they were living with her son and daughter-in-law who were available to care for her husband. She added that this had been so since shortly after she quit her employment. At the hearing before the Board of Referees, the claimant's representative stated that the claimant's son and daughter-in-law had been available to provide care to the claimant and her husband.

The Board of Referees reviewed the evidence and allowed the claimant's appeal for the following reasons:

"The Board finds that, if the claimant were not sick, she would be available for work as she had alternative care for her husband, had already worked under this arrangement from April to the date of her application for Employment Insurance as a care giver for the weekend only while her son and daughter-in-law would provide it during the week.

For these reasons the Board concludes that the claimant has been able to demonstrate that, if her illness were not taken into account, she would have been available for work."

The Commission submitted that the Board erred in law in determining that the claimant would have been available for work had she not been ill. In its written submissions, the Commission submitted that the Board had accepted the oral submissions of a third party at the hearing against the claimant's initial statement that she had quit her employment and was not available to work because of her obligation to care for her husband.

In this case, although the claimant did leave her work to care for her husband and initially stated that she was not available for work, she later established a claim for sickness benefits and repeatedly stated that she had alternative care for her husband. This evidence was not rebutted by the Commission.

The jurisprudence has unequivocally established that the Board of Referees is the primary tribunal for the finding of facts in employment insurance cases and that the role of an Umpire is limited to deciding if the Board of Referees' appreciation of facts is reasonably compatible with the evidence before the Board (Le Centre de valorisation des produits marins de Tourelle Inc. (A-547-01), McCarthy (A-600-93), Ash (A-115-94), Ratté (A-255-95) and Peace (A-97-03)).

And in Peace (supra), Justice Sexton described the role of an Umpire in reviewing a Board of Referees' decision involving a mixed question of law and facts as follows:

"In Budhai, 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 Canada (Attorney General) v. Sacrey, 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 Law Society of New Brunswick v. Ryan, [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 the present case, the Board's decision is entirely compatible with the evidence presented. The Board could conclude, based on the claimant's repeated statement regarding the availability of her son and daughter-in-law since shortly after she quit her employment, that she would have been available for work had she not been ill.

Accordingly, the Commission's appeal is dismissed.

Guy Goulard

Umpire

OTTAWA, Ontario
November 30, 2007