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  • CUB 25402


    - and -

    IN THE MATTER of a claim for benefits by the estate of
    Christopher PHILLIPS

    - and -

    IN THE MATTER of an appeal to an Umpire by the claimant
    from the decision of a Board of Referees given at
    London, Ontario, on April 14, 1993


    CULLEN, J.

    Unhappily Mr. Christopher Phillips died shortly before this hearing and the estate was represented by his mother and his sometime employer, Daryl Clarkson.

    This appeal came on for hearing before me at London, Ontario, on August 15, 1994. The claimant is appealing a unanimous decision of the Board of Referees ("the Board") in which it upheld the Commission's decision that Christopher Phillips ("the claimant") was ineligible to receive benefits because he did not work for a minimum number of weeks in insurable employment in his qualifying period.

    From April 26, 1992 until August 15, 1992, the claimant was employed by Forest City Administrative Services. He was employed for 16 weeks. On August 26, 1992, the claimant applied for unemployment insurance benefits. It is the claimant's position that he told the Insurance Officer that he wished to begin a new claim. The claimant was informed by letter (dated September 28, 1992) that he would receive benefits. In addition, this letter informed the claimant that his claim would be processed as a renewal of a previous claim set up for him on December 29, 1991 ("the old claim"). This old claim terminated on December 26, 1992, at the expiration of the benefit period.

    The claimant filed another application for benefits on January 26, 1993. He was informed by letter (dated February 11, 1993) that his application for benefits was denied. He was informed that he had only worked 16 insurable weeks in his qualifying period. A minimum of 17 insurable weeks are required in order to receive benefits. The claimant appealed this decision of the Commission to the Board of Referees.

    The Board agreed that the claimant had accumulated 16 weeks of insurable employment during his qualifying period and that the claimant was not eligible for an extension of the qualifying period. In addition, the Board accepted that the rate of unemployment for the claimant's residing economic region was 8.4% and the number of required weeks of insurable employment was 17. The Board unanimously upheld the Commission and dismissed the claimant's appeal. However, the Board went on to say:

    The Board and the claimant agreed that he does not have the qualifying weeks of insurable employment but felt that the wrong issue was brought forward by the Commission. The claimant's representative questioned the validity and accuracy of Exhibit 6 as the claimant was more concerned about the processing of his renewal claim versus the request for a new claim to be initiated.
    It was strongly evident to the Board that the issue of appeal should have been whether the claim was properly terminated. The Board found that claimant and his representative to be credible and believed that the claimant requested a new claim, in the Fall, 1991, be initiated.

    I find these statements of the Board troubling.

    The claimant is appealing the decision of the Board of Referees. The claimant has not indicated on what ground or grounds he seeks to appeal. In this case, I feel that I must address two issues. First, did the Board err in upholding the decision of the Commission to deny the claimant benefits because he had not worked a minimum number of weeks in his qualifying period. Second, did the Board fail to exercise its jurisdiction or err in law by not considering whether the claimant's benefits had been wrongly terminated.

    Section 6 of the Unemployment Insurance Act, R.S.C. 1985, c. U-1, as amended ("the Act") governs eligibility for benefits. To receive benefits under the Act, a claimant must meet two criteria. First, a claimant must have an interruption of earnings. Second, a claimant must have a minimum number of insurable weeks of employment in the period preceding the claim (the "qualifying period"). The minimum number of weeks for a person who is not a new entrant or a re-entrant to the work force varies with the regional unemployment rate applicable to the claimant. Section 7 of the Act defines the "quailing period". It is the shorter period of: (1) the 52 weeks preceding the commencement of a claim; or (2) the period between the start of a prior benefit claim and the start of a new benefit claim. According to subsection 9(3), a new benefit period will not be established for a claimant if a prior benefit period has not terminated. However, a claimant may request that an already established benefit period be cancelled and a new one begun (subsection 9(6)).

    The Board was correct in finding that the claimant had suffered an interruption of earnings. It was also clear that the claimant worked 16 weeks in his quailing period. Although the minimum number of weeks in the Fall of 1992 was 16 weeks, by January 1993, when the claimant reapplied for benefits, the minimum number of insurable weeks of employment had increased to 17. These facts were not in dispute at the Board. I can find nothing in the record to suggest that the Board failed to observe a principle of natural justice or that it incorrectly applied the law in respect of eligibility or Qualifying period. I can find no error in the Board's decision to deny benefits to the claimant based on his lack of a minimum number of insurable weeks of employment.

    However, I now turn to the second issue: should the Board have considered whether the claimant's benefits were wrongly terminated, particularly since they found the representative credible and believed that the claimant requested the initiation of a new claim in the Fall, 1991.

    Pursuant to section 63 of the Unemployment Insurance Regulations, C.R.C. 1978, c. 1576, as amended ("the Regulations"), the Board may only deal with a "decision" of the Commission as it is. It has no jurisdiction to deal with a matter not properly before it (CUB 17888, CUB 14858A). In practical terms, this means that a party may not raise an issue at the hearing which was not part of the decision upon which the appeal was based. The Board cannot go beyond the decision and address issues not properly before it. To do so is an error of law and jurisdiction.

    The decision before the Board concerned the termination of benefits because the claimant did not work a minimum number of weeks in his qualifying period. The decision did not consider the possible wrongful termination of benefits. The Board was correct in law in not deciding this secondary issue; it had no jurisdiction to look beyond the decision per se. However, judging from the statements the Board made regarding the credibility of the claimant and his representative, I take the sense of the Board's decision to be that the real issue in question should have been the possible wrongful termination of benefits. If the Board considered the decision of the Insurance Officer irrelevant to the real matter in question, it should have referred the case back to the Commission. In not doing do, it failed to exercise its jurisdiction and erred in law.

    Having found that the Board refused to exercise its jurisdiction and erred in law, section 81 of the Act now confers upon me the power to give the decision that the Board ought to have made or refer the matter back for re-hearing. In the circumstances of this case, I choose the latter option and the matter shall be referred back to the Board for rehearing in accordance with these reasons.

    The appeal of the claimant is allowed.

    "B. Cullen"


    August 22, 1994