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  • CUB 26841

    IN THE MATTER OF THE Unemployment Insurance Act, 1971

    - and -

    IN THE MATTER OF a claim for benefits by

    - and -

    IN THE MATTER OF an appeal to an umpire by the
    Commission from a decision of the Board of Referees given
    at New Westminster, British Columbia, on May 25, 1993




    This matter came before me at Vancouver, British Columbia on Monday, October 3, 1994.

    The Commission appeals the unanimous decision of the Board which allowed the appeal and referred the matter back to the Commission. The Commission appeals under Section 80(a) and (b) of the Act alleging that the Board of Referees failed to observe a principle of natural justice and erred in law in its decision.

    By Exhibit 1, the Commission determined that under Section 79(l) of the Unemployment Insurance Act the claimant must appeal to the Board of Referees within a period of 30 days in which the decision was sent to the claimant and will only allow an extension if there are special reasons as determined by the Commission. The decision went on to say that the claimant's decision was communicated to him on September 9, 1992 and he did not appeal within 30 days and the Commission found there was no special circumstances for the delay in appealing.

    The evidence discloses that the Commission communicated to the claimant on September 9, 1992 that he voluntarily left his job without just cause on August 7, 1992 and was disqualified for 11 weeks, the disqualification to begin on August 17, 1992.

    Presumably the Archambault factor would come into consideration on this disqualification. The claimant saw the Commission on August 17, 1992 where allegedly he was advised of his right to appeal.

    He quit his job to attend an English course on August 24, 1992 which was to last until January 22, 1993. I take it that the Commission gave him permission (See Exhibit 8.3) and indicated to him that his course was to begin on August 24, 1992 at 9:00 a.m. and was to continue for 21 weeks. This course was to be found in the Employment and Immigration's Language Instruction for Newcomers to Canada (LINC) program.

    What disturbs me about this case is that in the observations of the Commission to the Umpire found in Exhibit 19-1 in paragraph 2 the Commission indicated that the claimant voluntarily left his employment to attend the English language training and then went on to say that, as evidence by Exhibit 3, he was advised that he would be disqualified for a period of 11 weeks. The point that disturbs me was that the claimant was given permission to take the English course and he obviously had a build-up of insurable weeks and consequently should not have been disqualified for taking this course at the behest of the Commission. Consequently, he should not have been disqualified for leaving his job voluntarily without just cause.

    Commission counsel says I should only deal with the matter under Section 79(l). I disagree. I accept the fact that it is the commission and the Commission alone who determines whether or not the claimant should be disqualified but the law is quite clear, that the Commission must exercise its discretion judicially when it has the prerogative of making a determination judicially and the principle of the matter has been set down by Chartier et al v The Attorney General of Canada, A-42-90, where the court stated that the Commission, in extending the time for appeal beyond the 30-day period prescribed in Section 79(l) of the Act, must exercise its discretion on the question of whether or not there were special reasons for extending the time of appeal "on the basis of relevant considerations or without regard to relevant considerations".

    In this case I find that the Commission exercised its discretion "without regard to relevant considerations". In other words, by referring the claimant to a course of instruction when he was entitled to benefits, having the required number of insurable weeks. He should not have been found to have quit his position "voluntarily without just cause" and as a result therefrom, suffered disqualification of 11 weeks. I therefore make the decision that the Board of Referees should have made under Section 81 and allow the appeal by sending this back to the Commission to allow it to exercise its discretion judicially within the precepts of Chartier.

    The appeal is therefore allowed.

    Honourable A.H. Hollingworth


    Vancouver BC
    Oct 4/94