IN THE MATTER of the UNEMPLOYMENT INSURANCE ACT
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IN THE MATTER OF a claim by
Andrea MacDONALD
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IN THE MATTER OF an appeal to an Umpire by the Canada
Employment and Immigration Commission from a decision by
the Board of Referees given on October 22, 1991,
at Halifax, Nova Scotia
DECISION
ROULEAU, J.
The Commission is appealing the unanimous decision of the Board of Referees which reversed the Insurance Officer's determination that the claimant had not proven that she was available for work because she was only willing to accept work with CN Rail and because she was attending a course which prevented her from looking for and accepting suitable employment. The Officer had based his decision on paragraph 14(a), section 23 and subsection 40(1) of the Unemployment Insurance Act.
The Claimant filed for benefits on May 8, 1991. She had been employed by CN Rail from July 1989 until May 1991, when she was laid off due to a work shortage. After drawing benefits for 13 weeks, she filled out a training questionnaire indicating that she would be attending University full-time commencing September 11, 1991, and that she remained available for work on a call-back basis with CN. The Commission advised the claimant that her benefits were being suspended from September 11, 1991 because she had not proven that she was available for work. The Commission determined that her full-time attendance at school rendered her unavailable for work, and that her declared intention to only accept work from CN was an undue restriction on her field of search.
On October 2, 1991, the claimant appealed to the Board of Referees who, in a unanimous decision, allowed the appeal based on "new information" introduced by the claimant. The evidence showed "that the claimant went to university in 1990 and had a job and paid Unemployment Insurance premiums during this time". The Board found that, based on this information, the claimant "has established a history of attending a course while still working for CN". They also found that the claimant "is on call by CN and had worked hours in September and October, 1991".
The Commission's appeal is based on subsections (b) and (c) of section 80 of the Act which read:
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
(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.
The Commission submits that the claimant's Training Course Information form indicates that from September 11, 1991 until April 1992, the claimant would be attending (5) university courses Monday through Friday during fluctuating hours. The course cost was estimated to be $2,500.00. Since deciding to attend the course, the claimant admitted that she has not made any effort to find work outside of the employment she had held on an on call basis with CN since July 1989. The Commission further submits that from January 1991 to April 1991, an 18 week period during which the claimant was scheduled to attend classes, she did not work during 8 of those weeks and only had minimal earnings in four of the other weeks.
To support its position,the Commission relies on Marshall CUB 14023 where Jerome, ACJ states:
It is naturally assumed that the demands of full-time enrolment in a course 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. Each case must be decided with reference to the claimant's circumstances and the particular course in issue.
The following factors must be considered: the status of the course, e.g. full-time or part-time, the tuition paid, the flexibility of the course hours, the duration of the course, if suitable employment is found, the pattern of attendance at courses while employed, and the claimant's efforts to find employment.
With respect to their submissions regarding the claimant's restricting her employment search to one employer, namely CN, the Commission quotes Watrich CUB 16505:
There are numerous decisions to the effect that, when a claimant has good cause to believe that he will be called back to work by his former employer, he shall be granted a reasonable period before being disentitled to benefits on the grounds of not seeking other employment. Not only would his chances of obtaining other employment be considerably reduced if a possible employer, who received an application for employment, knew that the applicant was only seeking employment while waiting to be called back by his former employer, but it would also be unfair on the claimant's part if he did not reveal his intention to the employer.
The Commission submits that the claimant has been allowed sixteen weeks of benefits (May 5 to September 7, 1991) "to seek and even secure employment outside of the sporadic terms agreed to with CN. The fact that the terms of the employer/employee contract conform with the claimant's hours spent on university studies negates a finding of availability within the meaning of the Act."
The issue to be determined here is whether or not the claimant is available for work should an opportunity for suitable employment arise. There are two aspects to the issue: 1) is there something in the claimant's life that would make it impossible for her, from a practical point of view, to accept work should it arise; and, 2) should the claimant be actively seeking employment. In response to the first issue, the Board of Referees found, as a matter of fact, that the claimant had established a history of attending courses while working for CN. There is evidence on the file which supports this finding. By considering this issue, the Board is fulfilling the obligation set down in Marshall, supra, to decide each case "with reference to the claimant's circumstances and the particular course in issue". It is not the role of an Umpire to interfere with a Board's finding of fact except in situations where the findings are so obviously unreasonable, unsubstantiated or contrary to the evidence that they constitute an error of law. This is not the case here. The conclusion that the Board drew from this finding, namely that the claimant is capable of once again holding down a full-time job while attending school, is not unreasonable.
The second issue was also addressed by the Board. They found that the claimant remained on call with CN, and had worked hours in September and October 1991, while attending university. The evidence indicates that the hours of work fluctuated from week to week. There was no evidence presented that at any time CN had offered work to the claimant and she had declined that work. I am sure that if this evidence existed, it would have been presented to the Board by the Commission. The conclusion that the Board drew, and one which in my opinion they were entitled to draw, was that the claimant was employed, and worked whenever her employer offered her the opportunity to do so. This finding distinguishes the case at hand from Watrich, supra, where the claimant was not employed at the time of his claim. There was no obligation on the claimant to jeopardize this existing employment in the hope of finding other employment.
I find no reason to interfere with the decision of the Board. The Commission's appeal from the unanimous decision of the Board of Referees is dismissed.
P. Rouleau
UMPIRE
OTTAWA, Ontario
October 13, 1993