CUB 37351

The Honourable R.J. Marin

This appeal was heard by videoconference from Ottawa on January 10, 1997.

The nature of this appeal may not be unusual although the issues raised are different. The claimant, as a law student, articled with a law firm in Thunder Bay, Ontario. After his period of articling and before enrolling in the Bar Admission training course commencing in September of 1995 in London, Ontario, he obtained a letter from that law firm to the effect that should he 'successfully complete the Bar Admission training course, I will be hiring him on as associate with my firm'. The claimant then filed for benefits (Exhibit 2.1 of the appeal docket). In his Record of Employment, Question 20, there is a notation that the expected date of recall was unknown, a fact which is not entirely correct.

The claimant, at Exhibit 4.1, Question 11, states he proposes to devote his full time to the course of instruction rather than find work, although he indicates he would be prepared to accept employment commensurate with his experience, education and training at a pre-established remuneration providing his availability for seven days a week between 2:00 p.m. and 10:00 p.m. I also note at Exhibit 4.2 that there was a five-week interval between the completion of his employment and the beginning of the training course. On the basis of this information, an officer of the Commission ruled on October 23, 1995 that the claimant was not entitled to benefits based on ss. 14(a) and 40(l) of the Act.

In an extensive letter to the Board of Referees, the claimant relies on a prior decision of Walsh J. in St. Onge at CUB 5370 and on a decision by Mahoney J. in Kellar at CUB 5085 for support of the proposition that he is entitled to benefits.

I note that Walsh J. in the St. Onge matter dealt with issues which might best be examined in context. I reproduce hereunder his decision, more particularly, pages 2 and 3

Il a été décidé un grand nombre de fois que, lorsqu'un prestataire a des motifs raisonnables de croire qu'il sera rappelé au travail par son ancien employeur, un délai raisonnable doit lui être accordé avant qu'on le prive du bénéfice de ses prestations au motif qu'il n'a pas cherché un autre emploi. Or, non seulement ses chances de se trouver un autre emploi seraient-elles considérablement diminuées si un employeur éventuel à qui il adresserait une demande d'emploi savait qu'il ne se cherche du travail qu'en attendant d'être rappelé par son ex-employeur, et s'il ne lui révélait pas cette intention le prestataire serait injuste envers lui.

Dans le cas qui nous occupe, il ne s'est écoulé que six semaines avant que l'appelante n'ait été réengagée.

La jurisprudence est constants à l'effet qu'une décision unanime d'un conseil arbitral ne devrait pas être attaquée à moins, qu'il ne s'agisse d'une décision telle que le conseil n'aurait pas pu normalement la rendre en se fondant sur les faits qui lui ont été présentés. Or, si la décision du conseil arbitral est basée sur une stricte interpretation de la Loi, il appert qu'une grande partie de la jurisprudence qui aurait été pertinente n'a pas été présentée au conseil arbitral. Si cette décision était maintenue, elle irait à l'encontre de la jurisprudence existante sur la question de la disponibilité d'un prestataire qui ne se cherche pas un autre emploi durant la courte période de temps où il s'attend à être rappelé au travail par son ex-employeur. Cette décision serait également contraire à la jurisprudence qui a consacré le principe qu'un prestataire n'est pas obligé de demeurer oisif et ne rien faire, afin d'établir sa disponibilité en autant qu'il est prêt à abandonner toute autre activité occasionnelle qu'il a pu entreprendre (en l'ocurrence, un cours d'anglais dans un État américain limitrophe) si une offre d'emploi permanent se présente.

I note that, aside from suggesting that there must be a reasonable period allowed to the claimant who expects to return to a former employment (a recall situation), the circumstances in St. Onge are not necessarily applicable to the appeal before me. Without being unduly technical and while still subscribing to the principles articulated by Walsh J., the weight I would place on this decision is certainly not what the claimant purports it to be.

With respect, I must suggest that the quotation extracted from the decision of Mahoney J. appeals to me. Each case must be decided on the specific circumstances and, as stated by the Chief Umpire in CUB 24972, each case must be decided on its own facts. The Board of Referees gave an extensive decision in which it addressed all issues most adequately before unanimously dismissing the appeal on the ground that he had not proved he was available for work. The conclusion of the Board is reproduced for the benefit of the reader:

The claimant has not proved that he was available for work.

The claimant is in a course to which he was not referred by the Commission. In order to assess his availability for work during the time period in question the Board considered, the following:

1. He has spent a substantial sum of money to take the course and he is not willing to give up the course for employment.

2. The claimant has presented no evidence of a recent history of working while attending school. (ie. while attending law school)

3. He is not willing to change his course schedule in order to accept work, and, therefore, he is unavailable during normal working hours in a law office.

4. The claimant has failed to demonstrate any intent to find work. He has stated his intention is to devote himself to his course and this intention is supported by his lack of a job search.

Decision

It is the unanimous decision of the Board that the appeal be dismissed and that the decision of the insurance agent be upheld.

On appeal before the undersigned, the claimant skilfully argued that he was not laid off and, therefore, entitled to rely on a promise of recall. Consequently, he did not actively seek employment which is a usual requirement of 'availability' under the Act. As he states, 'all I had to do was attend the Bar Admission course and I was assured of employment'. As a subsidiary argument, he is asking that I find he should have be given a reasonable period of time to find alternative employment if I find that this is not a situation of 'recall'.

The Commission is of the view that his circumstances are really no different than other students in the Bar Admission course, namely, that the course requires full-time attendance, that the restrictions placed by attendees on their availability is simply not acceptable as the availability becomes too limited. The Commission also argues that, when a promise of employment is held in Thunder Bay and studies are being pursued in London, the argument of recall is somewhat weakened. Counsel also concludes by suggesting that the offer of employment is conditional and not firm.

With regret, I am not satisfied that my intervention in this matter would be justified in law. Before I set aside a unanimous decision of a Board of Referees, I must either find an error of law or fact; in order to find an error in law, I would have to ignore what I consider to be a fairly substantial number of decisions from this court on the issue.

In the Watrich matter at CUB 16505, the Court stated, however, that there should be a reasonable period of time allowed a claimant who, rightly or wrongly, relies on a recall. It is only to that extent that I propose to allow some degree of relief to the claimant. To borrow from the words of Mahoney J. in Kellar at CUB 5085, it is surprising that 'the disqualification was imposed immediately on the heels on a lay-off'. The claimant ought to have been given at least three weeks in August to seek alternative employment.

I am of the view that the claimant, before he attended the Bar Admission course in London, might have been directed by the Commission to seek employment or accept the consequences of his actions. Insofar as its ruling during the Bar Admission course, it is both sustained in fact and in law, and I support it.

The appeal is allowed in part as indicated above.

R.J. MARIN

UMPIRE

OTTAWA, Ontario
January 31, 1997