Date: 20040506
Docket: A-673-02
Citation: 2004 FCA 184
CORAM: STONE J.A.
LÉTOURNEAU J.A.
BETWEEN:
STEPHANIE THOMAS
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
Heard at Halifax, Nova Scotia, on April 27, 2004.
Judgment delivered at Ottawa, Ontario, on May 6, 2004.
REASONS FOR JUDGMENT BY: EVANS J.A.
CONCURRED IN BY: STONE J.A.
LÉTOURNEAU J.J.A.
Date: 20040506
Docket: A-673-02
Citation: 2004 FCA 184
CORAM: STONE J.A.
LÉTOURNEAU J.A.
EVANS J.A.
BETWEEN:
STEPHANIE THOMAS
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
[1] When Stephanie Thomas applied for employment benefits in May 2001, the Canada Employment Insurance Commission rejected her application on the ground that she was disqualified from receiving benefits because she had voluntarily left her employment with Scotiabank in Halifax, Nova Scotia, without good cause.
[2] Ms. Thomas had given notice of her resignation in March 2001; her last day on the payroll was April 13, 2001. She had decided to quit her job in order to join her fiancé, who had moved to Texas in 1993 in order to pursue his boxing career. Having conducted a long distance relationship for seven years, they decided in February 2000 to marry and set a date for a wedding in Nova Scotia in June 2001.
[3] However, in the first week of April, after Ms. Thomas had given her notice and her replacement had been hired and trained, but before she had left her employment, they decided to postpone the wedding so that he could focus on training for an important bout that had been scheduled at short notice for July 2001.
[4] Ms. Thomas appealed to the Board of Referees from the Commission's decision, but she was not successful. In its reasons for decision, dated July 24, 2001, the Board stated that the main issue was whether Ms. Thomas had established a spousal relationship with her fiancé. It concluded that she had not, because they had "not lived together in a common-law relationship and [had] not established a spousal relationship within the meaning of the EI Act and established jurisprudence."
[5] The relevant statutory provisions are as follows. Section 30 of theEmployment Insurance Act, S.C. 1996, c. 23, provides that a "claimant is disqualified from receiving any benefits if the claimant ... voluntarily left any employment without just cause". Following its amendment in 2000 by theModernization of Benefits and Obligations Act, S.C. 2000, c. 12, paragraph 29(c) of the Employment Insurance Act now states that just cause for leaving employment exists "if the claimant had no reasonable alternative to leaving ... having regard to all the circumstances, including ... (ii) obligation to accompany a spouse, common law partner ...". "Common law partner" for this purpose is defined in the amended subsection 2(1) as "a person who is cohabiting with a person in a conjugal relationship, having so cohabited for a period of at least one year".
[6] Ms. Thomas appealed from the Board of Referees to an Umpire. Her appeal was dismissed on September 27, 2002: CUB 55392. The Umpire held that she had not provided evidence of a previous common law relationship or of cohabitation of one year's duration, as required by "recent jurisprudence", and that there was no reason why the claimant could not have waited before making her decision to leave her employment.
[7] Ms. Thomas has applied for judicial review to this Court requesting that the decision of the Umpire be set aside. She concedes that she cannot bring herself within the "common law partner" provision in subparagraph 29(c)(ii) because, although she has had a committed relationship with her fiancé since 1991, and they had lived together from time to time since 1993, as work and distance permitted, they had not cohabited for one year as the statute requires. Nonetheless, she advances two arguments to support her application.
[8] First, like the Board of Referees, the Umpire erred in law by only asking whether Ms Thomas fell within subparagraph 29(c)(ii). He failed to have regard to "all the circumstances" of her case when deciding whether she had any "reasonable alternative" to leaving her job to join her fiancé. Second, if, contrary to her first submission, the Umpire had had regard to "all the circumstances" of Ms. Thomas' situation, the decision should be still set aside, because it was wrong in law, or was based on an erroneous finding of fact made in a perverse or capricious manner or without regard to the material before him.
[9] I cannot accept either of these arguments. In my opinion, the Umpire did not base his decision on whether Ms. Thomas was joining a spouse or common law partner within the meaning of subparagraph 29(c)(ii). I say this for three reasons.
[10] First, the Umpire clearly understood the basis of Ms. Thomas' appeal:
In her letter of appeal she submits that the Board failed to address the issue of whether having regard to all the circumstances she had no reasonable alternative to leaving her employment.
[11] Second, the Umpire referred to "recent jurisprudence" which requires evidence of a previous common law relationship or of cohabitation of at least twelve months' duration, and noted that "exceptionally" benefits were allowed in certain cases where children were involved and relocation was necessary to keep the family unit intact. He mentioned specifically Bate (2002), CUB 52387A, a case where an Umpire had considered "all the circumstances", even though the claimant in that case had not cohabited in a conjugal relationship when she left her employment to live with her common law partner.
[12] Third, the Umpire concluded his reasons by saying that, in the absence of a spousal relationship, there was no reason why Ms. Thomas did not wait before deciding to quit her job.
[13] I turn now to Ms. Thomas's argument that the Umpire was wrong to conclude that, "having regard to all the circumstances", she had no just cause for voluntarily leaving her employment since there were reasonable alternatives available to her. In my opinion, the disputed issue in this case raises no general question of interpretation, but involves the application to the facts of the statutory terms "just cause" and "no reasonable alternative". This is a question of mixed fact and law with which this Court cannot interfere unless the Umpire decided it unreasonably: see Budhai v. Canada (Attorney General), [2003] 2 F.C. 57, 2002 FCA 298; Canada (Attorney General) v. Sacrey, 2003 FCA 377.
[14] In my view, the Umpire's decision was not unreasonable on the basis of the material before him. Whether Ms. Thomas had "just cause" for voluntarily leaving her employment should be considered as of the time when her job was filled and she could not withdraw her notice. I am willing to assume that, at that time, the plan to marry in June was still operative. I can understand that Ms. Thomas found it difficult to make the necessary arrangements at a distance, even though the wedding was to be in Nova Scotia. I can also appreciate the difficulties that she experienced in obtaining employment in Texas while still in Canada.
[15] Nonetheless, when her wedding was postponed she did not ask her employer for another position. Given her successful career at the bank and the high regard in which she was obviously held, this was a reasonable alternative for her to pursue because it might well have enabled her to remain in employment until she either married or obtained a job in Texas. In any event, even if her wedding plans were still in place when she effectively left her employment, it was reasonably open to the Umpire on the facts of this case to conclude that voluntarily leaving employment before she was married was not her only reasonable option.
[16] For these reasons, I would dismiss the application for judicial review. I would only add that Ms. Thomas represented herself before us and did so very ably: her written materials were well researched and organized, and her oral submissions were most helpful. In these circumstances, I would not award the Crown its costs.
"John M. Evans"
J.A.
"I agree
A.J. Stone J.A."
"I agree
Gilles Létourneau J.A."
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-673-02
STYLE OF CAUSE: Stephanie Thomas v. The Attorney General of Canada
PLACE OF HEARING: Halifax, Nova Scotia
DATE OF HEARING: April 27, 2004
REASONS FOR JUDGMENT: Evans J.A.
CONCURRED IN BY: Stone and Létourneau JJ.A.
APPEARANCES:
Ms. Stephanie Thomas Applicant on her own behalf
Ms. Sandra Doucette For the Respondent
SOLICITORS OF RECORD:
Ms. Stephanie Thomas Applicant on her own behalf
East Preston, Nova Scotia
Mr. Morris Rosenberg For the Respondent
Deputy Attorney General of Canada