IN THE MATTER OF the Unemployment Insurance Act
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IN THE MATTER OF a claim for benefit by
Ron MAZUR
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IN THE MATTER OF an appeal to an Umpire by the Claimant
from a decision of the Board of Referees given at
EDMONTON, Alberta, on October, 18, 1991.
DECISION
REED, J.
The claimant appeals a decision of the Board of Referees which disentitled him to benefits because he had not proven he was available for work while he was attending a course of study.
The Commission's decision reads as follows.
Based on the information which has been presented with your claim for benefit, we find that you are not entitled to benefits from July 1, 1991 to July 19, 1991 for the reason that you have not proven that you were available for work within the meaning of the Act while you attended a course of instruction to which you were not referred by the Commission. You placed restrictions on your availability which severely reduced your prospects [sic] of immediate re-employment during this period.
The conclusion which the Board reached can be found in its summary:
Bound by the Unemployment Insurance Act, by facts presented, and jurisprudence this Board, after careful consideration, finds that Ron Mazur was not eligible for benefits by reason that he was not available for employment. Mr. Mazur's course was during the normal working day and he was only willing to leave the course if he was offered a substantial wage. The hours of the course would have prevented him from seeking employment during this period.
It is not clear from the Board's decision whether the Board applied the proper legal test. This doubt is reinforced when one looks at the observations on the claimant's case made by the Commission to the Board. Those observations quote CUB 7261 - Girard (June 3, 1982). The excerpt from that decision indicates that as a general rule, full-time students are presumed not to remain on the labour market while at school. The decision deals with a student attending college from September through the academic year and who was seeking part-time employment around those hours. (He in fact left college in December when he discovered he was not entitled to benefits). In the Girard case, it was held that this full-time college student would only be entitled to benefits if there was:
proof that [it] is possible for the student in question to do so [that is work around his classroom hours] for example, that he succeeded in finding such employment in previous years.
CUB 7389 - Savard (July 5, 1982) was cited for the comment:
In spite of the sympathy and admiration one feels for young people who continue their studies instead of being unemployed, the Act stipulates that they May not do so on their own initiative and receive benefits.
And CUB 8210 - Baena (June 14, 1983) was cited and portions quoted which noted that the claimant in question in that case, had not been referred to the course by the Commission. The claimant had been referred to a similar course previously and had assumed that when the Commission did not respond negatively to her enquiry as to whether she could take the subsequent course, that approval had been given.
There is much more useful jurisprudence which could have been cited to the Board for its assistance. In addition, there is a tendency on the part of the Commission to consider that because a person is enroled in a course to which he or she has not been referred by the Commission, that person is automatically disqualified from receiving benefits. Jurisprudence has established that in each case it is a question of fact. Attendance at a full-time course of study raises a presumption of non-availability which the claimant must rebut. In CUB 12381 - Carey (July 17, 1986) at page 7 it was stated:
In its findings the Board acknowledged that the claimant had presented a strong case for availability but found that it must comply with the legislation governing such cases. In this comment I see the possibility that the Board May have been of the view that there was a legislative prohibition on the payment of unemployment insurance benefits to persons who are attending a full-time course of instruction. There is no such prohibition. Although the decided cases on the matter are overwhelmingly against benefits being paid to claimants under such circumstances the legislation does not preclude payment. Each case must be decided on its merits. Had Parliament decided, as a matter of policy, that the payment of unemployment insurance benefits to claimants attending full-time courses of instruction to which they had not been referred would be prohibited, it would have been a simple matter to provide for it in the legislation. The legislation contains no such provision. It contains the test of availability.
While the jurisprudence has consistently held that attendance at a course of study to which a claimant has not been referred by the Commission is, at least prima facie, evidence that he or she is not available for work, it is clear that proof of attendance at such a course of study is not in itself automatically grounds for disentitlement. The issue is always the larger one of availability.
If, for example, the course of study takes place outside normal working hours this does not lead to a finding of non-availability. If the hours of attendance are flexible so that the attender can choose them to accommodate both the course of study and a full time job then they will not be evidence of non-availability. Most importantly however it is the intention of the claimant in following the course of study which is important. If he or she can demonstrate that a genuine job search is being pursued and that had an offer of employment materialized the course would have been abandoned then there is no restriction on availability. Usually factors such as the payment of a considerable sum of money as a tuition fee, the enrolment in a course for academic credit, the enrolment in a full time course of study constitute strong evidence that the claimant did not intend to abandon such course even if suitable employment arose. Attendance at a full time course of study May often also be evidence that adequate job search efforts are not being made.
In CUB 10415 - Moore (April 11, 1985), a nurse who took a language training course three hours a day was held to be available for work - a nurse's normal working hours are 24 hours a day - she was prepared to take the unpopular shifts - she was taking a 3 hour day (morning course) 4 days a week to learn French.
In CUB 19821 - Mosher (May 9, 1991), the claimant's usual line of work was as a seasonal sub sea engineer. The course was not a typical "full-time" course of study and if work were available the claimant could leave the course at any time without loss of credit and could resume his studies at that same point at some future date, or conceivably even carry them on by correspondence. It was held that it was not rational to conclude that attendance at this course of study precluded the claimant from accepting suitable employment if it was available. The claimant had engaged in a job search not limited to Canada, while in attendance at the course, and had in fact left the course to work for a two-week period with Gulf Resources when employment arose. In addition it was held that the fact that the claimant was intending to return to employment with his previous seasonal employer was not in itself a factor precluding benefits.
In CUB 9431 - Lee, the claimant enroled in an English upgrading course. There was no academic credit given for the course; no significant financial investment required. The course of study was very individualistic (studying on one's own during classroom hours, and asking teacher's assistance only as required). It was held that the claimant had demonstrated availability.
In CUB 16773 - Ryan (June 22, 1989), the claimant was a teacher's aid. She was seeking the kind of part-time work she might hope to get in the summer. She was taking a part-time course of limited duration for the purpose of obtaining full-time employment in her profession in September. She had a conditional promise that such employment would be available to her if she took the course. The course was of four weeks duration - four hours a day. It was held that this was not the kind of case where the general rule of non-availability applies.
In CUB 19728 - Naimji (April 25, 1991) a supply teacher enroled in a 4 week course commencing July 4 to upgrade his teaching skills. The Umpire stated:
... The Board should also have looked at all circumstances to determine whether the claimant, by pursuing this course, was really making himself unavailable for work which might otherwise be available. The claimant was a trained teacher and he should not be expected, at least in the short run, to accept a manual labour job. It was obvious that supply teachers have difficulties finding suitable employment during school holidays. While they cannot insist on seeking only teaching jobs, which are virtually non-existent during this period, they are entitled to a reasonable period of searching for jobs where they can use some of their intellectual skills. It is also obvious, as the claimant points out, that employers are less likely to hire such people for what must be a short term of employment pending their return to teaching in the autumn. If the Board had taken all these circumstances into account, and they were put before the Board by the claimant, they should have concluded that the pursuit of this short summer course, which the claimant was prepared to abandon if suitable work were found, did not materially affect his availability for employment.
It remains a mystery to me as to why the Commission would choose to refer to the decisions in CUBs 7261, 7389 and 8210 in its Observations to the Board without also referring to CUBs such as 9431, 10415, 16773 and 19728.
The failure to cite balanced jurisprudence simply is not fair. In many instances, the Board of Referees relies on the Commission's description of the applicable jurisprudence in coming to its decision. There is an assumption that those references are accurate and conclusive. Claimants are usually unrepresented and do not know what jurisprudence exists or indeed even what facts or evidence should be presenting to the Board. It is always disturbing to find that the Commission either advertently or inadvertently has taken advantage in its own favour of the unbalance of access to information which exists.
In the present case the claimant, a supply teacher, enroled in a course to improve his French language skills. The course was of three weeks duration beginning July 2, 1991. The cost was $350.00. It was a non-credit course. He had enroled in the same course in the previous year and not been disqualified from receiving benefits on that account. In response to the enquiry "are you willing to change your course schedule in order to accept work?", the claimant answered "yes". In response to the question "At present, what is your intention? Check appropriate block below", the claimant checked the block "To find full-time work while taking the course of instruction".
In response to the questions of the Board, he indicated that if "something good" had come along, for example, a job at a salary of $46,000.00 per year he would have left the course. He respond with less alacrity when asked whether he would have left if offered a job at a salary closer to the minimum wage. The facts in this case fall squarely within the decision in CUB 19728. Reasoning similar to that decision applies as well in this case.
Accordingly for the reasons given, this appeal will be allowed.
B. Reed
UMPIRE
OTTAWA, Ontario
December 11, 1992