IN THE MATTER OF The Unemployment Insurance Act
- and -
IN THE MATTER OF a claim for benefit by
Rachel ADEODU
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IN THE MATTER OF an appeal to an Umpire by the Claimant
from the decision of a Board of Referees given at
EDMONTON, Alberta, on June 27, 1991.
DECISION
REED, J.
The claimant appeals a decision of the Board of Referees which disentitled her to benefits because she could not prove availability. She is a foreign student and can work in Canada only under the authorization of a work permit.
The claimant finds it quite unreasonable that she should be disentitled to benefits because of restrictions that are placed on her by the government when co-workers who May not be as anxious to find a job as she is can obtain benefits. She finds it inconceivable that she should be required to pay unemployment insurance premiums, if it is known that because of the restrictions on her work permit she will never be able to take advantage of the benefits provided under that program.
Counsel for the Commission, on reviewing the file, noted that the outright disentitlement of the claimant was probably not correct. She noticed that the claimant's work permit did not limit her employment opportunities to the Department of Elementary Education as suggested in some of the documentation. The restriction was limited to employment with the University of Alberta. Counsel suggests that this restriction is similar to a claimant who has been employed in a small town and upon being laid off is given a period of time within which to find re-employment in that town before being required to broaden her job search. In the present case, Commission counsel suggests that a two week period within which to find re-employment within the university community would have been appropriate and that the claimant should be granted benefits for two weeks.
In CUB 13136 - Chen (January 21, 1987), it was held that the absence of a work permit did not necessarily constitute a finding of failure to prove availability. I quote in part from that decision.
The claimant's argument is straightforward. He first makes the obvious common sense argument that he has a moral if not legal entitlement to benefits:
In response to your letter dated May 7th 1986 informing me of your decision not to honour my application for unemployment benefits, I wish to inform you of my desire to appeal your decision. I find it unacceptable to believe that after your department has accepted my contribution for the full duration of my employment with "Rowntree Mackintosh Canada Ltd." you have now decided that I am not qualified to receive such benefits. It is my contention that by your acceptance of my contribution you have created in me a false expectation based upon such acceptance, knowing full well that "paragraph 25(a) and section 36 of the Unemployment Insurance Act" disqualified me totally from such benefits. Therefore under the circumstance its only fair for me to expect your department to honour my claim.
(Exhibit 7-1)
His second argument is more legal in nature. It is that the restrictions which existed with respect to his availability as a result of the need to have an Employment Authorization, were more technical than real. He argues that, as a matter of practice, in his case there would have been no difficulty in obtaining the requisite Employment Authorization. He contends, for example, that had he been laid off permanently by Rowntree he would simply have sought another job and, when he had done so he would have applied and obtained the requisite Employment Authorization. The claimant, as noted above, was laid off on March 31, 1986. At that time his application, for permanent resident status was in process. Indeed, he had obtained such status before the Board of Referees' heard his appeal on the unemployment insurance claim, on June 17, 1986.
What is missing from the evidence on file, of course, is any verification for the claimant's view as to the ease with which as a practical matter in his circumstances, he would have obtained the requisite Employment Authorization. Accordingly, I think the most appropriate procedure to follow is to ask the Commission to seek from the appropriate official in the Department of Employment and Immigration (the Deputy Minister if no other more appropriate official can be identified) verification of the claimant's views. If the restrictions imposed on the claimant by virtue of the need to have an Employment Authorization were more technical than real as he asserts then he would meet the availability requirements of the Unemployment Insurance Act, 1971. ...
In CUB 14357 - Mota ( October 9, 1987), the Chief Umpire had the following to say:
....
The applicant arrived in Canada on May 17, 1981. She had a valid student authorization which allowed her to study at the University of Waterloo, from which she has now received two post-graduate degrees. Her husband also studied at the University of Waterloo and is completing his PH.D. The couple always intended to finish their studies here and then return to Mexico.
As an authorized student, Ms. Mota was able, in May of 1985, to obtain an employment authorization which allowed her to work as a teaching assistant at the University. She worked in that capacity from May 1 to December 31, 1985. The employment was insurable and unemployment premiums were deducted from her salary.
On January 8, 1986 Ms. Mota filed a claim for benefits as her temporary appointment had terminated. From January to April, 1986 she received maternity benefits.
On May 14, 1986 Ms. Mota was again issued an employment authorization as a teaching assistant. She held a position from May 1 to August 31, 1986. The authorizations are apparently valid for one year. On October 15, 1986 she was offered another teaching assistant position. She accepted and her employer contacted the Immigration Department to ensure she was authorized to work. At that point, the Immigration officials realized that Ms. Mota had completed her studies on May 20, 1986. She was therefore no longer a student and, as her employment authorization had been issued on that basis, it had to be revoked.
Ms. Mota was now considered a visitor to Canada. Because her husband was still an authorized student, she was permitted to apply for another employment authorization from within Canada. However, because of her change in status, the standard which she had to meet in order to qualify was more stringent. She was consequently refused an authorization.
She filed a claim for unemployment benefits on October 28, 1986, which was refused. The Commission ruled that, as a non-immigrant person without a valid employment authorization, she was not available for work. She was disentitled for as long as that condition lasts.
....
It is necessary here to set out the requirements for such a person to obtain an employment authorization in Canada. They are governed by S. 20 of the Immigration Regulations, SOR/78-172, as amended. That section provides, in part:
20.(1) An immigration officer shall not issue an employment authorization to a person if,
(a) in his opinion, employment of the person in Canada will adversely affect employment opportunities for Canadian citizens or permanent residents in Canada; or
(b) the issue of the employment authorization will affect
(i) the settlement of any labour dispute that is in progress at the place or intended place of employment, or
(ii) the employment of any person who is involved in such a dispute.
...
(3) In order to form an opinion for the purposes of paragraph (1)(a), an immigration officer shall consider
(a) whether the prospective employer has made reasonable efforts to hire or train Canadian citizens or permanent residents for the employment with respect to which an employment authorization is sought
(b) the qualifications and experience of the applicant for the employment for which the employment authorization is sought; and
(c) whether the wages and working conditions offered are sufficient to attract and retain in employment Canadian citizens or permanent residents.
...
(5) Notwithstanding paragraph (1)(a) and subsections (3) and (4), an immigration officer May issue an employment authorization to
(a) a person described in paragraph 19(4) (f), (h), (i), (j) or (k)
(b) a person coming to or in Canada to engage in employment pursuant to
(i) an international agreement between Canada and a foreign country or an arrangement entered into with a foreign country by the Government of Canada or by or on behalf of one of the provinces other than arrangements concerning seasonal workers, or
(ii) an agreement entered into with a province or group of provinces by the Minister pursuant to subsection 109(2) of the Act.
(c) a person in possession of a valid and subsisting student authorization in respect of whom paragraph (1)(a) should not, in the opinion of the immigration officer, be applied for the reason that that person has become temporarily destitute through circumstances totally beyond the control of that person and of any person on whom that person is dependent for the financial resources referred to in paragraph 15(1)(b);
(d) a person whose employment is related to a research, educational or training program approved by the Minister.
(e) a person in respect of whom paragraph (1)(a) should not, in the opinion of the immigration officer, be applied for the reason that
(i) his employment will create or maintain significant employment, benefits or opportunities for Canadian citizens or permanent residents,
(ii) he is to be employed by a Canadian religious or charitable organization without remuneration, or
(iii) his employment would result in reciprocal employment of Canadian citizens in other countries; or
(f) a person described in paragraph 19(4)(e) and in respect of whom paragraph (1)(a) should not, in the opinion of an immigration officer, be applied for humanitarian or compassionate reasons arising from
(i) a state of war or other event causing serious disruption of public order in that person's country of last permanent residence before he came to Canada.
(ii) a recent serious natural disaster at that person's place of last permanent residence before he came to Canada, or
(iii) the fact that the person was, immediately prior to his coming to Canada, a member of a class designated by the Governor in Council pursuant to paragraph 115(1)(d) of the Act.
Several important points emerge from an examination of this Regulation. First, as a student, Ms. Mota had the opportunity [sic] to show that she did not have to fulfill [sic] subsections 20(1)(a) and (3) if she was temporarily destitute within the meaning of subsection 5(c). When she lost that status that opportunity was no longer open to her, which May be why she did not qualify for an employment authorization for her former position. Second, a visitor seeking authorization must either come within one of the other exemptions listed in subsection (5) or be able to fulfill [sic] the requirements of subsections (1) and (3). In order to determine if those requirements are met, an immigration officer must be able to consider the terms and conditions under which the visitor proposes to be employed. In other words, the visitor must have an offer for a specific job before he or she applies for an authorization. In terms of the Commission's ruling in this case, this creates quite a "catch-22" situation. The person must have an authorization to be considered available for work and therefore eligible for benefits, but she must have a job offer of suitable employment before obtaining an authorization. The question before us in this case is whether a person with no job and, therefore, no authorization can be considered available for work.
....
The Chief Umpire went on to answer that question affirmatively:
... I have said elsewhere that I do not believe that the Act requires that one be able to start work immediately (See the case of Robert Priest, CUB 13580). Other Umpire Decisions have recognized that a person in this claimant's position should not automatically be considered unavailable for work (See Reed, J. in Chen, CUB 13136 and Ramirez, CUB 10602). Provided Ms. Mota fulfills [sic] all the other requirements of availability, I do not think that the fact that she can only apply for an authorization after obtaining a job offer prevents her from being available.
That said, however, I hasten to add an important qualification. While she is not barred from establishing availability, Ms. Mota is under a rather large handicap in her attempts to do so. She is an analogous position to a claimant who, because of location of family commitments, is forced to place restrictions on the type of employment she can accept. In Ms. Mota's case, unless she can satisfy S. 20(5) of the Immigration Regulations, she is restricted to employment which will not adversely affect employment opportunities for Canadian citizens or permanent residents. Because of her peculiar circumstances, Ms. Mota's job search must establish that she is seeking that kind of work and stands some chance of obtaining it. If that requirement is fulfilled, she should then be entitled to a reasonable period of time in which to obtain such employment, as is every other claimant who is subject to restriction. During that time she May collect benefits. The usual period allowed in cases of restricted employment is eight weeks.
....
I note that none of this jurisprudence was cited to the Board of Referees by the Commission in its Observations. It is always disturbing to find the Commission citing unbalanced or out-dated jurisprudence to the Boards. In this case, the Commission referred to CUB 8763 - Tenjo et al. (December 6, 1983) and CUB 9991 - Wagner (January 23, 1985) but not to the more recent jurisprudence noted-above. This is not fair. One knows that Boards of Referees are highly dependent upon the material which is put before them by the Commission. The Commission has an obligation to ensure that such information is balanced and not out-dated.
There is, in addition, the very recent decision in CUB 21910 - Lin ( October 2, 1992). If May be that this decision and the material cited therein May have influenced the Commission, in this case, to suggest that the claimant's position was close that that of an individual who loses employment in a small community. As noted such individuals are allowed a certain period of time within which to obtain re-employment in that community before being required to broaden the geographical scope of their job search. The question that remains, on the basis of that analysis, is why two weeks is said to be the appropriate time period. I quote from the decision in Lin and the reference made in that decision to the Joulani case, No. 118-512, July 15, 1991:
The board concluded that [at] a minimum, the Commission had not allowed the claimant sufficient time to restrict his job search to Carleton University (CUB 14357 suggests eight weeks as a minimum, for example, and some others, like CUB 2392 have allowed up to four months) especially since the restriction in on [is an] involuntary one. The Board further noted that CUB 8763 had been denied solely on the basis of an invalid work authorization, even though the claimant's conclusion that since the claimant has a valid work permit and is actively seeking work at Carleton University, he is not unduly restricting his availability pursuant to Section 14(a) of the U.I. Act, even though prospects of summer employment at that University are limited.
Mr. Justice Muldoon in Lin went on to cite the Federal Court of Appeal decision in Attorney-General of Canada v. Dodsworth, [1984] 2 F.C. 193, where a married woman who followed her husband to an area of little or no employment was given two months to find employment in that area before being disentitled to benefits. I note that in CUB 16657 - Plante (May 19, 1989), the Umpire indicated that the jurisprudence seemed to indicate that in cases where the question was one of removal to an area of little or no employment, two to three months was appropriate, although the period of time allowed would vary with the length of the claimant's work history.
I accept the Commission's analysis of the appropriate legal rules to apply. I reject, however, the two week period as appropriate. I find a two month period far more in keeping with the jurisprudence in this area.
For the reasons given the claimant's appeal is allowed and the claimant's entitlement to benefits is to be calculated on the basis that she should be allowed a two month period of benefits within which to find re-employment in the University of Alberta community before being disentitled to benefits.
B. Reed
UMPIRE
OTTAWA, Ontario
December 9, 1992.