TRANSLATION
IN THE MATTER OF the Unemployment Insurance Act
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IN THE MATTER OF a claim for benefit by
Michel COMEAU
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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
Trois-Rivières on June 19, 1991.
DECISION
TEITELBAUM, J., UMPIRE:
This is an appeal to an Umpire by the claimant, Michel Comeau, of a unanimous decision handed down by a Board of Referees on June 19, 1991. The Board of Referees dismissed the claimant's appeal of the Insurance officer's decision that he was not entitled to benefits because the conditions under which he was available for work were too restrictive (Exhibit 25-1).
An appeal to an Umpire is conducted in accordance with section 80 of the Unemployment Insurance Act.
80. An appeal lies as of right to an umpire in the manner prescribed from any decision or order of a board of referees at the instance of the Commission, a claimant, an employer or an association of which the claimant or employer is a member, on the grounds that
(a) the board of referees failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
(b) the board of referees erred in law in making its decision or order, whether or not the error appears on the face of the record; or
(c) the board of referees based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.
In the case before us, the claimant is basing his appeal on paragraphs (a), (b) and (c) of section 80 of the Act (Exhibit 26-1).
Facts
The claimant was employed with Distribution Pharmacies Universelles Inc. from June 3, 1988 to March 17, 1990, and was laid off due to lack of work (Exhibit 2-1).
On March 26, 1990, the claimant filed a claim for benefit (Exhibit 2) and filled out a questionnaire concerning training courses, in which he stated that he had started a full-time course at the University of Quebec at Trois-Rivières (Exhibit 4). He indicated that he took this course while working during the period from June 3, 1988 to March 16, 1990, and also stated that his course calendar could not be changed and that he was not prepared to give up his courses to accept a job (Exhibit 6). However, the claimant did state that he was interested in doing part-time work while continuing with his studies (Exhibit 5-1).
In the light of this information, a benefit period was established on March 25, 1990.
On September 14, 1990, the claimant filled out a second questionnaire. In this document, he indicated that he had started a new term at the university on September 4, 1990, and he reiterated his statement that he was not prepared to change his course calendar or to give up his courses for a full-time job (Exhibit 7). However, he reaffirmed his intention of looking for part-time employment while pursuing his studies (Exhibit 9-1).
In the light of the above, the Commission sent the claimant a letter dated October 15, 1990, in which it notified him as follows:
We have assessed your availability in relation to your continuing with your training course.
We decided that for the moment, your studies did not constitute a circumstance having the effect of making you disentitled to benefit.
However, we shall reassess your availability during the month of November or December 1989.
This notice is not an authorization to take a course under section 39 of the Unemployment Insurance Act, and does not free you from your obligations under the Act.
On December 18, 1990, the claimant filled out a third questionnaire, in which he stated that he was going to take courses in the 1990 winter term, commencing on January 7, 1991 (Exhibit 14-1). The claimant again affirmed his intention of obtaining part-time work while pursuing his studies.
Finally, on January 17, 1991, the Commission informed the claimant of the disentitlement that was to become effective as of January 7, 1991 (Exhibit 16):
The fact that you were taking a course to which you had not been referred by the Commission entailed certain restrictions in regard to your availability, so that your chances of finding suitable employment were greatly reduced. Payment of benefits will therefore be suspended as long as you continue to take this course.
[Exhibit 15-1]
This notice was sent in accordance with section 14(a) and 23 of the Act.
In his letter of February 6, 1991, the claimant lodged an appeal with the Board of Referees (Exhibit 17).
Decision of the Board of Referees:
The Board of Referees unanimously decided to uphold the Commission's decision.
After this whole benefit period, after receiving the notice of October 15, 1990 (Exhibit 10), and after filling out the questionnaire for students (Exhibits 13-1 and 2), the claimant persisted in looking for part-time work that could be reconciled with his studies, although he had changed the kind of employment he was looking for.
In Exhibits 14-1 and 2 dated December 18, 1990, the claimant once more stated that he was looking for part-time employment and was taking his course.
After more than nine months of benefits, we believe that the claimant's real status is that of student, and that this status is confirmed, in a way, by the fact that he was looking for part-time work.
In these circumstances, we think that the claimant benefitted from a reasonable period of time, for although he was not informed of this fact as such, he was given a copy of leaflet EMP 3366 with the notice of October 15, 1990.
Although the claimant somewhat modified his requirements along the way, he did not eliminate the presumption weighing against him, namely that he was not really in the labour market and that his aim was to continue with his studies.
[Exhibits 25-1 and 25-2]
The claimant appealed this decision.
Submissions of the claimant:
The claimant argues that the Board of Referees, in not considering whether the Commission was obliged to give him notice before imposing disentitlement to benefit, infringed a principle of natural justice. The claimant further argues that the Board of Referees (1) erred in law in finding that the claimant had been granted a reasonable period of time, and (2) erred in fact because it did not take into account the material before it.
Submissions of the Commission:
The Commission argues that it has not been proved that the Board of Referees did not observe the principal rules of natural justice or that the Board, in making its decision, erred in fact or in law.
The Commission also argues that there is no provision in the Act that obliges the Commission to give the claimant reasonable notice or to grant him a reasonable period of time before suspending his benefits. The Commission further maintains that even if it was obliged to grant the claimant a reasonable period of time, in the present case the claimant benefitted from the lengthy period from March 16, 1990 to January 7, 1991.
Finally, the Commission argues that it has not been proved that the decision of the Board of Referees is based on an erroneous finding of fact. In the Commission's view, the Board's decision is based on the evidence on the record.
Questions at issue:
Discussion:
In the case at bar, the relevant provision is section 14(a) of the Act:
14. A claimant is not entitled to be paid benefit for any working day in a benefit period for which the claimant fails to prove that the claimant was either
(a) capable of and available for work and unable to obtain suitable employment on that day.
Every case must be evaluated in the light of its own particular circumstances and according to the provisions of the Act. In the case of a student who is pursuing studies on a full-time basis, there is a presumption of fact that he is not available for work. This presumption May be reversed where claimants can prove that their timetable of studies May be modified and that they are prepared to give up their studies for an offer of full-time employment, or where claimants can establish a history of part-time employment during their full-time studies (see Smith, CUB 10060).
In my own decision in D'Amours, CUB 17533, I stated:
I agree entirely with Pinard J., when he stated the following in CUB 12968:
"The claimant had a duty to prove his availability. An abundant and consistent case law establishes that a student taking courses to which he was not referred by the Commission is not entitled to benefit during his studies."
As Umpire, I cannot vary the finding of the Board of Referees concerning the claimant's availability because in my opinion, the Board did not make this finding in a perverse or capricious manner or without regard for the material before it. It seems to me that the Board of Referees' decision is based on evidence on the record. The claimant was a student at university who limited his availability when he acknowledged that he was prepared to accept only jobs whose hours did not conflict with his schedule of courses.
Furthermore, the claimant benefitted from a period of four months to find a part-time job before disentitlement was imposed. In my view, the claimant was unable to prove his availability to hold suitable employment. Consequently, as far as the question of the claimant's availability is concerned, I do not see any error in the decision of the Board of Referees, in respect of the Board's interpretation of either the facts or the law.
However, even though the finding on availability must remain unchanged, there is one other question to settle, namely whether the Commission should have notified the claimant of his imminent disentitlement before suspending his benefits.
There is no provision in the Act that expressly requires the Commission to give the claimant reasonable notice or to grant the claimant a reasonable period of time before imposing disentitlement to benefit upon him. According to the recent case law on unemployment insurance, however, the principles of equity and natural justice require that claimants be notified by the Commission of their disentitlement before their benefits are suspended. On this subject, see Jelen, CUB 14701, Nichols, CUB 16823, Cook, CUB 19338 and Tétrault, CUB 20316.
This principle was clearly stated in Tibbles, CUB 15771, by the Assistant Chief Umpire, on page 3:
The principle is that one should be given a reasonable length of time to find suitable employment in her own area, but at the end of that time, if the restriction still exists, the claimant will no longer be entitled to benefits. Because of the difficulty in determining what is reasonable in each case, it has been held that claimants should receive a warning from the Commission when they have persisted in restricting their job search too much for too long. This warning is not required by the Act or Regulations, but by the same principle of fairness, if the conditions entitling the claimant to benefits are going to change, the claimant is entitled to know and be given a reasonable opportunity to bring herself within the new conditions.
Moreover, in Nichols, CUB 16823, MacKay J. applied the principles of equity and came to the conclusion that the Commission must alert the claimant to the need to extend the scope of his job search, and must accord the claimant a reasonable period of extended search before informing the claimant of his or her disentitlement to benefit. In this regard, MacKay J. stated the following:
In my opinion, the principles of fairness and natural justice are breached when the Commission retroactively disentitles a claimant from benefits for reason that the search is too restrictive in scope when all along the claimant May have been led to believe that he or she was conducting an adequate job search. In those circumstances a warning to the claimant is required that the search is considered to be too restrictive and unless the search is extended continuation of benefits May be jeopardized.
... ... ...
For the Commission to suddenly and without warning say "the conditions under which you are willing to accept employment are too restrictive" and to disentitle the claimant to benefits retroactively is in my opinion unfair. If the Commission had concluded in August that the claimant was unduly restricting her job search then they should have warned her of that, advised her to broaden her search and provided a reasonable period of time for the broader search to be made before issuing a Notice of Disentitlement.
In the present case, I find that the Board of Referees erred in holding that the Commission followed the principles of equity and granted the claimant a reasonable period of time for a broader job search before issuing him the notice of disentitlement.
In the case at bar, the claimant clearly indicated from the outset that he was looking for part-time employment, on the basis of a restrictive timetable of availability. On the basis of this information, the Commission granted the claimant entitlement to benefit. Furthermore, between March 1990 and December 1990, the claimant filled out two questionnaires, in which he indicated that he was restricting his job search to part-time work. It was only in a letter dated October 15, 1990 that the claimant was notified that the Commission would reassess his availability during the month ofNovember or December 1990.
In my opinion, there is nothing to indicate that prior to the notice of disentitlement of January 17, 1991, the Commission attempted to warn the claimant that his job search was too limited and that payment of his benefits might be suspended if he did not extend his search.
Consequently, the notice of disentitlement was not an adequate warning. The principles of equity and natural justice require that the Commission warn the claimant that he must extend his job search and grant the claimant a reasonable period of time to take action to comply.
The length of the period of extended search before benefits are suspended is based on several factors, and depends upon the particular circumstances of each case. In Jelen, CUB 14701, the Assistant Chief Umpire stated that an important factor to consider is the duration of the period during which the claimant received benefit. In that decision, the Assistant Chief Umpire held that after eight months of benefits, four weeks constituted a reasonable period of extended search, although in some cases a period of eight weeks had been deemed appropriate.
Finally, in Tétrault, CUB 20316, Rouleau J. was of the opinion that four weeks would have constituted a reasonable period of notice, after five months of unemployment.
In the present case, the claimant received benefits for approximately nine months before being notified of his disentitlement on January 17, 1991. In the light of the case law, a reasonable period of notice in this case would have been two weeks.
Conclusion:
In conclusion, I find that the Board of Referees erred in fact and in law when it held that the Commission had granted the claimant a reasonable period of extended job search before issuing the notice of disentitlement. The principles of equity and natural justice require that the Commission warn the claimant of the need to extend his job search. Moreover, the claimant was entitled to a reasonable period of extended search for suitable employment before disentitlement was imposed upon him.
The claimant's disentitlement should therefore not be retroactive, but should commence two weeks after the date on which the Commission's decision was communicated to him, namely January 17, 1991.
Consequently, the appeal is allowed in part, in respect of the change in the date of disentitlement.
"Max M. Teitelbaum"
UMPIRE
OTTAWA
July 15, 1993