IN THE MATTER OF THE Unemployment Insurance Act, 1971
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IN THE MATTER OF a claim for benefit by
BERTRAND, T.
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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 on
November 3, 1993 at Belleville, Ontario
CORRESPONDING FEDERAL COURT DECISION: A-577-94
McGILLIS, J.
The appellant appeals from a decision of the Board of Referees ("the Board") dated November 3, 1993 which concluded that he was not available for work due to his attendance at a course to which he was not referred by the Commission under section 26 of the Unemployment Insurance Act ("the Act").
The appellant was laid off from his job and applied for unemployment insurance benefits on August 12, 1993. He advised an employee of the Commission that he was planning to attend a meat-cutting course for twenty weeks beginning on August 30, 1993 and would be unable to seek employment during that period. The appellant was advised that there would be "no problem" receiving benefits. He completed the form which he was given by the employee and began his studies. He was subsequently disqualified from receiving benefits on the basis that he was not available for work due to his attendance at a course of instruction to which he was not referred by the Commission under section 26 of the Act.
On October 8, 1993, the appellant and his father met with another employee of the Commission and were told that, in August 1993, the appellant had been given the wrong form. The employee helped the appellant to complete the form required under section 26 of the Act and immediately approved his application for benefits. If the appellant had not been given the wrong form by an employee of the Commission in August 1993, he would have received benefits for the period from August 30 to October 7, 1993.
In its decision, the Board of Referees upheld the decision of the Commission that the appellant was not entitled to receive benefits for the period in question, but made a "strong recommendation" that the Commission review the case under section 26 of the Act.
Errors made by employees of the Commission occur frequently, often creating situations of object unfairness and great hardship for claimants. The question of the legal effect of an error made by an employee of the Commission was considered by the Federal Court of Appeal in the leading case Granger v. C.E.I.C. (1986), 69 N.R. 212 (F.C.A.); appeal to the Supreme Court of Canada dismissed, February 1, 1989. In the majority decision, Pratte, J.A. concluded that "...any commitment which the Commission or its representatives may give, whether in good or bad faith, to act in a way other than that prescribed by law would be absolutely void and contrary to public order." [See also Barzan v. M.E.I (No. A-373-92, decision dated April 1, 1993, F.C.A.)].
In my opinion, the principle enunciated by the Federal Court of Appeal in Granger v. C.E.I.C., supra is limited to situations in which an error made by an employee of the Commission would create a result "...other than that prescribed by law. " In the case at bar, the appellant was lawfully entitled to the benefits and, absent the purely administrative or clerical error of the employee, would have received them for the period in question. I have therefore concluded that, in the circumstances of this case, the error made by the employee of the Commission cannot constitute a valid basis for depriving the appellant of benefits to which he would otherwise have been lawfully entitled.
Counsel for the Commission argued that the appeal to the umpire was barred by subsection 26(8) of the Act which provides that "no decision referring or refusing to refer a claimant to a course or program... is subject to appeal under section 79 or 80. " I do not agree with this submission. The facts of the case reveal that, due to the error of the employee in providing the wrong form, the appellant was not referred by the Commission to the course which he was taking. Accordingly, "no decision referring or refusing to refer... " the appellant to a course was ever made by the Commission within the meaning of subsection 26(8) of the Act.
Since the facts in the matter are undisputed, I have decided to exercise my power under section 81 of the Act to give the decision which the Board should have given.
The facts of this case establish unequivocally that, absent the purely administrative or clerical error made by an employee of the Commission, the appellant would have been lawfully entitled to receive benefits for the period from August 30 to October 7, 1993. The appellant is therefore entitled to payment of the benefits in question.
The appeal is allowed.
D. McGillis
UMPIRE
OTTAWA
September 6, 1994