In the Matter of the Unemployment Insurance Act
and In the Matter of an Appeal by the Claimant to the Umpire
from the Decision of a Board of Referees.
BETWEEN:
LORNA L. McConnell,
Appellant,
- and -
THE CANADA EMPLOYMENT
AND IMMIGRATION COMMISSION,
Respondent.
REASONS FOR DECISION
C. R. SMITH, Umpire
The facts in this case may be stated as follows. The Appellant is a young lady who, from the time she was about seven years old, has dreamed, hoped and planned to be a professional classical ballet dancer. From that age she trained and studied to achieve that goal, and has never had any training for any other line of work. As she put it in Exhibit 5(1): "My time and effort has been totally consumed with dance."
She has studied with professional dance schools under many teachers in Canada and in Minnesota, U.S.A. For a year and a half, ending February 1980, she was a member of the Minnesota Dance Theatre Company, which folded at that time due to lack of funds. She then studied for four months in the Professional Program of The Royal Winnipeg Ballet.
From September 1980 to March 1981 she danced for La Compagnie de Dance Toussaint in Montreal, at the end of which period her job was terminated due to lack of finances.
On March 19, 1981, she applied for unemployment insurance benefits, and was held to be entitled for a reasonable length of time to find work as a ballet dancer.
She immediately began making strenuous efforts to obtain work in her profession. She wrote to 24 ballet companies in all parts of the United States and all the companies in Canada except the Royal Winnipeg Ballet in her home city. In her letters she enclosed resumes of her experience and photographs.
On June 13 she auditioned for the Theatre Ballet of Canada. Prior to that she auditioned through the balance of March and the month of April at Les Grands Ballets Canadiens (6 weeks in all). She also auditioned for the Alberta Ballet, the Cleveland Ballet (June 6) and the Connecticut Ballet, June 4.
On June 15 she went to New York City and made the rounds of the ballet companies in that area, returning to Canada on June 20. All of these efforts were unsuccessful, but she persisted. She went to Minneapolis on July 13, was-auditioned for the Minnesota Dance Theatre and was successful in securing a job with that company, commencing September 21, 1981.
On each occasion when she left Canada she made contact with the local Commission office and was advised that being out of Canada in search of work would not affect her entitlement to benefit.
On July 6, 1981, the Appellant was notified that she was not entitled to benefits from June 21, 1981, because she had not proven that she was available for work as the restrictions she was placing on her acceptance of work meant that she could not be considered as being on the labour market since her chances of employment were very scarce.
By an amending Notice of Disentitlement dated August 27, 1981, the grounds of disentitlement were slightly altered to read:
"you have not proven that you are available for work and unable to obtain suitable employment because you are restricting your acceptance to the type of work you will accept (Ballet Dancer). This restriction limits the opportunities of employment for you to such an extent that your availability does not meet the requirements of the Act."
On the same date, August 27, 1981, a second ground of disentitlement was notified to her, stating:
"you are disentitled under Section 45 of the Unemployment Insurance Act and Regulation 54. Payment of benefit is suspended for the following periods of time (June 4, 1981, June 15 to 20, 1981) and (July 13 to 31, 1981) while you were out of Canada. Your presence in the United States is not covered by the terms of a Reciprocal Agreement for the payment of benefit."
The Appellant appealed to the Board of Referees against both grounds of disentitlement. On September 30, 1981, the Board unanimously disallowed both appeals. From that decision she has appealed to the Umpire.
If I were a judge of the facts, as was the Board, I might well have come to a different conclusion about a reasonable time having elapsed in which she could restrict her search for employment to her own profession as a ballet dancer. Bearing in mind that there are very few ballet companies in Canada and that dancers habitually seek employment all over North America and even farther afield, and further that ballet is a seasonal occupation, it may be thought that a longer period than the three months that were allowed might be considered reasonable. In some cases six months has been considered reasonable. After all, she did secure ballet employment within four months, to start with the season opening about seven weeks later.
What might or might not have been my decision if I were sitting as a judge of fact is, however, not material. The law is well settled, by uniform jurisprudence, that an umpire should not interfere with a decision of a Board of Referees based on fact, unless that decision is clearly wrong. The decision as to what is, in a particular case, a reasonable period during which a Claimant may restrict the kind of work he will accept to the work he is best qualified for is a discretionary judgmental decision based on the Board's view of the circumstances of the case. I find nothing to suggest that the Board did not consider all the relevant facts in this case, or acted improperly in any way, and certainly nothing to suggest that they were guilty of an error of law.
In the result the appeal against this ground of disentitlement is disallowed.
The appeal against disentitlement for the short periods the Appellant was in the United States auditioning for a job presents a different picture. I can understand the reasons for the rule that a claimant is disentitled from benefit while he is resident out of Canada, namely, that he is not available for work in Canada. However, I cannot imagine that a person who is in the United States for a very short time for the sole purpose of auditioning for a job is resident in that country, within any reasonable meaning of the word resident. In this case the three periods for which the Appellant was disentitled on this ground were respectively one day, five days and eighteen days, all of them fully taken up with auditioning and the last and longest of them resulting in a job. The nature of the ballet dancing profession, as I understand it practically compels a Canadian dancer to be ready to apply outside Canada for a job whenever for any reason jobs are scarce.
In my opinion the Board, and also the Commission, have given too narrow a meaning to the words "he is not in Canada" in Section 45(b) of the Act. I cannot think that they are intended to penalize a person in the position of the Appellant, who has been out of Canada for very short periods for the sole purpose of auditioning for work in the only occupation for which she has any training or experience and to which she has been devoting herself for a good many years. She was 23 years old during the period in question.
The appeal against this ground of disentitlement is allowed.
Umpire, D. J., F.C.C.
Winnipeg
October 15, 1982