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 ON REVIEW UNDER SECTION 102
CORNISH, D.J.
On September 14 of this year, I upheld an appeal by the Commission from the decision of the Board of Referees which had allowed Allan Tanner's appeal from the refusal of benefits by the Commission on the grounds that he was not entitled to benefits for a period while in a correctional institution because of the provisions of Section 45 of the Unemployment Insurance Act. This Section disentitles a claimant from benefits during any period he or she is in prison unless the claimant can bring himself or herself within the provisions of Section 55 of the Act which 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 January 1976)
On the hearing of the appeal, Mr. Joseph O'Donnell, President of Local 458 of the United Automobile Aerospace and Agricultural Implement Workers of America (UAW) representing the Respondent Allan Tanner was unable to produce evidence which satisfied me that the Superintendent of the Burtch Correctional Centre had granted Tanner temporary absence from his institution and so I allowed the Commission's appeal which was presented by Roslyn Levine.
On November 10, 1981 the Registrar of the Umpire forwarded to me an application for review pursuant to Section 102 of the Act which permits an Umpire to rescind and amend any decision on "the presentation of new facts or on being satisfied that the decision was given without knowledge of or was based on a mistake as to some natural fact". This application was made by the UAW President of Local 458 on behalf of Allan Tanner on the grounds that evidence had become available in the form of a letter from the Superintendent of the Brantford Jail indicating that Tanner had in fact been granted temporary absence. This letter reads as follows:
The above was admitted to this institution on 25 November, 1980, and transferred to Burtch Correctional Centre on November 28, 1980.
The above mentioned was granted a Temporary Absence to go to work at Massey-Ferguson Industries Ltd., but when the company was contacted there was no work available due to the layoff, so he was transferred to Burtch C.C. to alleviate the crowding at this institution.
The Registrar also enclosed a letter from the Legal Services of the Department of Justice opposing Tanner's application of the following basis:
The claimant has not established that he had been placed on a temporary absence program in order to seek and accept employment on an ongoing basis. The Commission submits that a temporary absence to work at Massey-Ferguson cannot be construed as satisfying the requirements of regulation 55, particularly when the facts do not demonstrate whether it was extended to cover other types of employment as well.
I find I am unable to agree with the view of the Department of Justice which seeks to place qualifications on grants of temporary absence pursuant to Section 18 of the Department of Correctional Institution Act R.S.O. 1970 Ch. 110, which are not in my opinion warranted by the text of this Section or by any precedent.
This application will be granted on the basis of new evidence and the appeal of the Commission will be dismissed and the decision of the Board of Referees upheld.
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Umpire
TORONTO
December 16, 1981