Date: 20071212
Docket: A-26-06
Citation: 2007 FCA 391
CORAM: DESJARDINS
J.A.
NOËL
J.A.
TRUDEL
J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
ROSE THOMPSON
Respondent
REASONS FOR JUDGMENT
NOËL J.A.
[1]
This is an
application for Judicial Review of a decision of Umpire Goulard dated December
9, 2005, wherein he dismissed the appeal by Employment Insurance Commission
(the “Commission”) from a decision of the Board of Referees (the “Board”) on
the basis that the respondent left her employment for just cause, due to an
obligation to follow her common-law partner. The Attorney General of Canada
(the “AGC”) maintains that the respondent was not in a common-law relationship
and therefore does not qualify for benefits.
RELEVANT FACTS
[2]
The
respondent was employed in Moncton, New Brunswick from February 28, 2003 until September 9
2004 when she left her employment to move to Prince Edward Island (P.E.I.) on
September 12, 2004 to be with her partner.
[3]
The
respondent then applied for employment insurance benefits and an initial claim
date was established. On her application for benefits, the respondent stated
that she left her employment in order to accompany her common-law spouse and
move in with him to begin living together. She added that she and her partner
had not established a common–law relationship prior to her move and were not
married.
[4]
As a
result, the Commission relying on subparagraph 29(c)(ii) of the Employment
Insurance Act, S.C. 1996, c.23 (the “Act”), determined that the respondent
had left her employment without just cause.
[5]
The
respondent appealed the Commission’s decision to the Board. Before the Board,
she explained that her common-law relationship had been established approximately
10 to 11 months earlier in New
Brunswick. She added
that her common-law partner’s business was in P.E.I but that he travelled on
weekends to New
Brunswick to be
with her.
[6]
The Board found
that the respondent’s testimony provided a better understanding of the
situation described in filing her application for benefits. It concluded (CUB
64918, p. 2):
In the case
at hand, the Board finds that Ms. Thompson did have “just cause” in leaving her
employment in order to accompany her common-law partner to P.E.I. Therefore, it
finds that she should not be disqualified from receiving benefits pursuant to
section 29 and 30 of the Employment Insurance Act.
[7]
The
Commission brought an appeal before the Umpire, who upheld the Board’s
decision. This decision is now before this Court.
THE UMPIRE’S DECISION
[8]
The Umpire
accepted that the respondent “clarified” her relationship in her testimony
before the Board. Although, she had first indicated to the Commission that a
common-law relationship had not been established prior to her move to P.E.I.,
she explained before the Board, and the Umpire accepted, that there had been
cohabitation for a 10 to 11 month period prior to the move. In particular, her
partner travelled to be with her on weekends, whenever his employment allowed
him to do so. In short, they lived together whenever possible.
[9]
The Umpire
concluded in this regard (Reasons, p. 6):
In the
present case, the Board’s decision cannot be said to be incompatible with the
evidence before the Board. It may be that the Board could have arrived at a
different conclusion, but it did not. The Board accepted the claimant’s
evidence that the relationship had existed several months and had involved cohabitation
whenever the distance between the parties allowed it. The Board was satisfied
that this constitutes enough of a spousal relationship to allow the claimant to
move and be entitled to her benefits.
POSITIONS OF THE PARTIES ON APPEAL
[10]
The applicant
submits, citing various jurisprudence, that the Board committed an error in law
in holding that the respondent had established the existence of a common-law
relationship during the relevant period, and that the Umpire committed a
similar error in refusing to intervene. According to the applicant, the
weekends spent by the respondent with her partner, whenever his work schedule
allowed him to join her, were not sufficient to establish a common-law
relationship.
[11]
The
respondent for her part maintains that she was cohabiting with her partner
prior to applying for benefits as was found by the Board, and confirmed by the
Umpire. Although, they were together only intermittently over the 10-11 month
period, this was sufficient to establish a common-law relationship.
ANALYSIS AND DECISION
[12]
Pursuant
to subparagraph 29(c)(ii) of the Act, a claimant has just cause for
leaving her employment in order to accompany a common-law partner in a
different location. The issue therefore is whether the respondent had
established the existence of a common-law relationship prior to leaving her
employment and moving to P.E.I. to be with her partner.
[13]
It is not
necessary in this case to determine whether the weekends which the respondent
spent with her partner prior to leaving her employment are sufficient, as a
matter of law, to establish the existence of a common-law relationship.
[14]
Since
2000, the Act defines the term “common-law partner” as follows (Modernization
of Benefits and Obligations Act, 2000 S.C. ch.12, section 106, effective July
31, 2000 (SI/2000-76)):
|
"common-law
partner"
«conjoint
de fait
»
"common-law partner" , in relation to a claimant,
means a person who is cohabiting with the claimant in a conjugal
relationship, having so cohabited for a period of at least one year;
|
«conjoint de fait »
"common-law partner"
«conjoint de fait » La personne qui vit avec la prestataire
dans une relation conjugale depuis au moins un an.
|
[ My emphasis]
[15]
Neither
the Umpire nor the Board considered this provision and the cases on which they
rely all pre-date this amendment. In the present case, the period during which
the respondent was found to be in a common-law relationship cannot be said to
be “at least one year”. The evidence of the respondent in this regard, as it
was accepted by the Board and the Umpire, was that “her common-law relationship
was established approximately 10-11 months ago” (CUB 64918, p. 2).
[16]
In my
respectful view, the respondent’s testimony must be taken for what it says. A
relationship established “approximately 10-11 months ago”, does not allow for a
finding that the relationship had a duration of “at least one year”.
[17]
It follows
that the respondent’s partner was not a common-law partner under the Act when
she left her employment to be with him, and hence, a common-law relationship
cannot be said to have existed at that time.
[18]
For these
reasons, I would allow the application for Judicial Review, set aside the
decision of the Umpire and refer the matter back to the Chief Umpire or his
designate for re-determination on the basis that the respondent did not have
just cause for leaving her employment.
“Marc Noël”
“I concur
Alice Desjardins J.A.”
“I
agree
Johanne Trudel J.A.”
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