IN THE MATTER of the EMPLOYMENT INSURANCE ACT
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IN THE MATTER of a claim by
DEREK CUNNINGHAM
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IN THE MATTER of an appeal to an Umpire by the claimant
from a decision by the Board of Referees given at
Sudbury, Ontario, on October 2, 1997
DECISION
James A. Jerome, Umpire
This is an appeal by the claimant from a decision of the Board of Referees which held he was not entitled to benefits as he failed to prove his availability for employment.
Mr. Cunningham was laid of from his employment with Polar Sound on April 17, 1997, due to a shortage of work. He applied for unemployment insurance benefits on April 18, 1997. A benefit period was subsequently established for him and he commenced receiving benefits.
On August 17, 1997, the claimant submitted a Training Course Questionnaire to the Commission indicating that he would be attending Laurentian University in September taking sixteen hours of courses over Monday to Thursday of each week. Mr. Cunningham stated that he wanted to find full-time work while taking the course and was willing to change his course schedule or take night classes should suitable employment become available.
Based on this information the Commission determined that the claimant was not entitled to benefits as he had failed to prove his availability for employment. The claimant appealed to a Board of Referees which dismissed his appeal stating its reasons as follows:
The claimant established a claim for benefits effective 20 April, 1997. The claimant is attending a course at Laurentian University from Monday to Thursday for a total of 16 hours per week. The course runs from September 8, 1997 to April 1998. The tuition fee is 3, 900.00.
The claimant appeared before the Board and the hearing was recorded. When questioned about the possibility of leaving his course or changing the hours of his course in order to accept work, the claimant was very hesitant. He is already in class 16 hours per week and has already paid $3, 900.00 as tuition.
The Act is very clear regarding availability for work stating a claimant is not entitled to be paid benefits for a working day in a benefit period for which the claimant fails to prove that on that day the claimant was capable and available for work.
In the present case the Board understands and sympathizes with the claimant but must conclude that the claimant has not proven his availability for work.
The claimant now appeals to an Umpire on the grounds that the Board based its decision on an erroneous finding of fact. He makes the following submissions in his letter of appeal dated March 16, 1998:
I was first laid off 17 April 1997 due to not enough work. I then returned to school in 8 September 1997, at which time my benefits were cut off. I was told that I was not eligible because had not gone to school with in [sic] the past year, and that I was not available. I do have experience of working and going to school, but not with in [sic] the past year... I have always been ready to accept work. I have always looked for work. The information I would like you to consider is this. I have continued to look for work since I applied. My first appeal was denied. I was recalled by former employer November 1997 and worked full-time until January 1998 when I was laid off due to a shortage of work... I was again recalled at the end of January and am now working 29 to 42 hours per week while attending full time studies at Laurentian University. I feel that the decision on my claim is not fair and ask that you review this one more time.
In order to be eligible for benefits it is incumbent upon a claimant to prove that he is available for employment. For the purpose of the Employment Insurance Act, this means a willingness to accept employment during the hours accepted as normal working hours in the labour market, as well as evidence of a genuine and ongoing job search. It is a claimant's attitude and most importantly, an active and sincere job search, which will establish whether the availability requirement is met.
When a claimant is attending a course of instruction there arises a presumption that he is not available for work. That presumption may be rebutted however, in cases where the claimant is able to adduce convincing evidence to the contrary. One of the most effective ways to rebut the presumption is for a claimant to demonstrate a history of full-time or part-time work while attending a course of instruction.
However, this pattern of combining work and school is not the only way to rebut the presumption of non-availability in cases of this nature. The mere absence of a history of full-time or pan-time work while in school does not automatically lead to the conclusion that a claimant is unavailable. In Landy v. Canada (A.G.) (1992), 152 N.R. 164 the Court of Appeal made the following observations:
While it is true that there is a presumption that a person enroled In a course of full-time study is generally not available for work within the meaning of the Act, at the same time it has to be admitted that this is a presumption of fact which certainly is not irrebuttable. It can be rebutted by proof of "exceptional circumstances". The work record mention by the umpire is only one example of such exceptional cases. althouth in fact it may be the one most frequently encountered. There may certainly be others.
(emphasis added)
Another exceptional circumstance in my view, is where a claimant, by conducting an active job search, has been able to establish his genuine intention and willingness to obtain employment while attending the course of instruction. When a claimant, such as Mr. Cunningham, continues to look for work and is ultimately successful in obtaining full-time employment while still enroled in school he must be seen as having satisfied the legislative requirement of being available and therefore being entitled to benefits.
For these reasons, the claimant's appeal is allowed and the decision of the Board is set aside.
James A. Jerome
Umpire
OTTAWA, Ontario
October 20, 1998