CORRESPONDING FEDERAL COURT DECISION: A-869-81
IN THE MATTER OF THE Unemployment Insurance Act, 1971
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IN THE MATTER of a claim for benefit by
ALLAN L. TANNER
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IN THE MATTER of an appeal to an Umpire by the
CEIC from the unanimous decision of a Board of Referees
given in Brantford, Ontario on 23 March, 1981
DECISION
CORNISH, D.J.:
Allan Tanner applied for benefits on August 5, 1980 stating that he had been employed by Massey Ferguson from 1 July, 1980 to 1 August, 1980.
The Commission asked Mr. Tanner why he had stated on his reporting card that he was ready and willing to work between 28 November, 1980 to 14 December, 1980 when during that period he was incarcerated at Burtch Correctional Centre from 28 November, 1980 to 14 December, 1980.
Mr. Tanner replied that he did not mention such incarceration because he felt that he was available for work while so incarcerated. (Exhibit 4-2).
The Commission issued a Notice of Refusal on February 17, 1981 on the strength of Section 45(a) of the Act and Section 55 of the Regulations. Section 55 reads as follows:
Inmates of an Institution
Sec. 55.(45) A claimant who is an inmate of a prison or similar institution and has been granted parole, partial parole or temporary absence, or a certificate of availability for the purpose of seeking and accepting employment in the community, is not disentitled from receiving benefit by reason only of section 45 of the Act. (28 Jan 76)
The Notice of Refusal concluded by stating that the Commission would be seeking the refund of benefits already paid to him.
Mr. Tanner appealed to the Board of Referees by a letter written on his behalf by Joseph O'Donnell, President of his Local 458 of United Automobile, Aerospace, Agricultural Implement Workers of America (UAW) dated March 2, 1981. The grounds stated were that Mr. Tanner felt the Board's decision was unfair.
The observations of the Commission to the Board of' Referees states at considerable length and were to be found in CUB 3530 dated May 28, 1974.
The claimant and Mr. O'Donnell appeared at the hearing before the Board of Referees.
The Board allowed the appeal on the grounds that the claimant was involved in a mass lay-off situation and was therefore not required to conduct job search activities during the period in question and evidence was available from the correctional institution that the claimant would be released to accept employment and therefore the claimant was in fact available for work during this period.
The Commission appealed this decision to the Umpire. At the appeal, the claimant and Mr. O'Donnell and Roslyn Levine appeared as Counsel for the Commission. The argument revolved around the question whether Mr. Tanner could be considered as having been granted temporary absence for the purpose of seeking and accepting employment in the community.
No evidence was produced that such temporary absence had been granted and hence I must allow the Commission's appeal.
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Cornish, D.J.
Dated at Toronto this 14th day of September, 1981
2011-01-10