CUB 17934

JEROME, A.C.J.:

This matter came on for hearing at Kitchener, Ontario, on August 18, 1989. The claimant appeals the unanimous decision of the Board of Referees upholding the insurance officer's determination that the claimant was not entitled to benefits from July 18, 1988, for the reason that she had not proven she was available for work as she was attending a full-time course of instruction.

The claimant applied for benefits effective June 19, 1988. She had been employed at Stanley Park Pro Hardware from March 17, 1988 until June 14, 1988, when she was laid off because the store closed. The claimant also submitted a Record of Employment from Kent Drugs, where she was employed from September 14, 1987 until November 13, 1987.

On July 16, 1988 the claimant informed the Commission that she was taking a word processing/secretarial course at the Anderkoch Institute. The Course ran Monday to Friday from 9:00 a.m. to 2:30 p.m. The claimant stated that she was seeking part-time employment while taking the course, but that the course schedule could not be changed and she was not willing to give it up. During a telephone interview with the Commission the claimant explained that while she had worked from 9:00 a.m. to 5:30 p.m. at the Hardware Store, during high school, she had worked part-time. Labour market information revealed to the Commission that in the previous three months fifteen part-time cashier positions had become available, mostly for Saturday and evening work.

The Commission disentitled the claimant from benefits commencing July 18, 1988, as she had not proven availability, due to the fact that she was attending a full-time course of instruction to which she had not been referred.

The claimant appealed the Commission's decision to a Board of Referees, submitting that she had a history of working afternoon and evening shifts, her courses would allow her to continue to work those hours and that she had a history of working while attending school. The Commission clarified these submissions, determining that the claimant had worked hours other than "nine to five" in 1985 and 1986, and that while working at Kent Drugs in 1987 the claimant had worked afternoons and evenings.

The Board of Referees found that the claimant had established a "full-time working habit" while employed at Stanley Park Pro Hardware, and that her period of employment there was within her qualifying period. On that basis the Board concluded that the decision of the insurance officer was correct. The Board dismissed the claimant's appeal.

The claimant now appeals from the decision of the Board of Referees pursuant to ss. 95(b) and (c) of the Unemployment Insurance Act. She has filed a lengthy written submission which makes the following points:

1. The claimant presented detailed information regarding her past employment, indicating that from 1983 to 1986 she had worked afternoon and evening shifts at various jobs while attending school.

2. Commencing September 1987, the claimant worked from noon to 9:00 p.m. and on weekends at Kent Drugs.

3. For the first two and a half weeks that the claimant was employed at Stanley Park Hardware she worked from 5:30 p.m. until -9:00 p.m. Thus, the claimant submits, she has not established a full-time working habit from March 1988, as found by the Board.

4. The claimant's employment with Kent Drugs, of a similar duration to that with the hardware store, was also in her qualifying period, and didn't involve "nine to five" hours.

The claimant further submitted that she had presented to the Board a history of part-time work while at school, and that the jurisprudence including CUB 13789, has held that in such a circumstance there is an exception to the general rule that students are not available for work. CUB 13171, she submits, requires that a claimant's entire past work history he considered, and not just her most recent employment. Finally, the claimant argues, citing CUB 14434, that the Board of Referees erred in law by not giving her a reasonable period of time to find employment within her established pattern.

The relevant statutory provisions in this matter are ss. 25(a), 36 and 39(1) of the Unemployment Insurance Act, 1971:

25. A claimant is not entitled to be paid initial benefit for any working day in a benefit period for which lie fails to prove that he was either

(a) capable of and available for work and unable to obtain suitable employment on that day.

30. Notwithstanding paragraph 25(b) and sections 30, 32, 32.1 and 32.2, a claimant is not entitled to be paid extended benefit for any working day for which the claimant fails to prove that the claimant was capable of and available for work and unable to obtain suitable employment.

39.(1) For the purpose of this part, a claimant is unemployed, capable of and available for work during any period lie is attending a course or program of instruction or training, or other courses or programs designed to facilitate the re-entry of a claimant into the employed labour force, to which he has been referred by such authority as the Commission May designate.

Umpires have, in previous jurisprudence, held that students attending non-referral Courses may, in rare circumstances, overcome the presumption that they are not available by showing a previous pattern of employment outside class hours. In CUB 10435 (Raven), Mr. Justice Walsh set out the requirements for a student to show availability:

It is of Course true that many students work part time while attending courses in order to supplement the funds required for their education. The jurisprudence is clear however that for a student attending full time courses it is only in very rare instances that he can meet the requirement of the Unemployment Insurance Act as to availability for work. Such exceptions have occurred when, for example, the student has in previous years succeeded in obtaining regular employment in late afternoon or night work or at hours outside the time when he would be taking courses, and that despite this he has been able to find enough time for his studies and class assignments to continue with his studies. These instances are quire rare and depend on the establishment of a pattern of such employment on previous occasions sufficient to rebut the presumption of' non-availability arising from attendance at a full time course.

These requirements were reiterated in CUB 14434 (Mackie), where I have stated:

Although the circumstances that will rebut the presumption are rare, the Board of Referees is under an obligation to consider whether they exist in each case.

Moreover, in CUB 13789 (Branton), I held:

Cases involving students' availability for work are not easy to resolve. The simple fact that a claimant has commenced a course of study does not automatically disentitle him to benefits. Naturally, it is assumed that the demands of full time enrolment do not permit a student to do justice to full-time employment. There is consequently a rather heavy onus on the claimant to satisfy the Commission and, in turn, the Board of Referees that he is still available for work. As a starting point, the claimant is required to establish a pattern of working while going to school. In order to allow the application the Board must find that such a pattern existed with this claimant in the past and that his intention to continue it is realistic with regard to both his commitment to the course and the availability of suitable employment. Finally, even if all these conditions are in place, the Board must be satisfied that the claimant has not failed to fulfill the other requirements of availability, including a substantial job search. If these issues are all determined in the claimant's favour, the Umpire's indicates that he should be given a reasonable time to find a job while attending the course.

I am of the opinion that this is one of the rare circumstances in which the claimant was entilted to collect benefits while attending a course of instruction. She has overcome the presumption that she was not available by clearly demonstrating a previous pattern of employment outside class hours. Her intention to continue this pattern was consistent with her commitment to the course in question, which occupied her only until 2:30 p.m. each day, and with the availability of suitable employment. The Commission's own labour market information indicated the availability of sufficient part-time cashier positions that the claimant's intention to seek employment of that nature was reasonable.

The Board of Referees based their decision upon their erroneous finding of fact that the claimant had established only a "full-time working habit". Their conclusion was, on that basis, an inappropriate one given the facts of this case, and I have consequently allowed this appeal.

James A. Jerome

CHIEF UMPIRE

OTTAWA
April 3, 1990