CUB 43253

BLAIS J.

The claimant appeals from the decision given by the Board of Referees, which upheld the decision because she did not show that she was available for work while she was taking a training course.

The claimant stopped working on December 20, 1996 and filed an unemployment insurance benefit claim on February 7, 1997.

When the claimant filed her claim, she gave a fairly detailed description of her availability on the basis of the classes she was taking at CEGEP in the electrodynamics program, the classes for which began in August 1994 and took three-and-a-half years to complete.

The claimant also filed an unemployment insurance benefit claim on November 6, 1997, after another practicum in the summer of 1997.

Both claims were denied by the Commission.

The information appearing both on the claimant's questionnaire regarding her availability for work (Exhibit 4) and on a document providing training course information (Exhibit 7-1) could be interpreted as restrictions on her availability. However, her examination under oath, on pages 6 and 7 of the transcript, clearly shows that her priority was to find a job and that she remained available for any job that she might have been offered; she could have even postponed the completion of her studies at CEGEP if she had found a job in the meantime.

The case law demonstrates that a full-time student is generally not available for work given that the student must be shown to be available during regular working hours, not only on weekends.

The claimant clearly indicated that if her work and class schedules conflicted, she was able to seek help from other students and the cooperation of her teachers to obtain class notes and attend sessions outside her scheduled class hours.

The claimant clearly indicated that she had considerable flexibility and was able to ensure that her close colleagues could help her out if she encountered a scheduling problem.

At the time, the claimant was living in the Port-Cartier and Sept-Îles region, where the unemployment rate was around 20%.

The claimant also showed that she had looked for a job at Alouette, Québec Cartier Mining and IOC, which were all companies that ran on shift work and were not limited to the hours of 9 to 5.

Section 115 of the Employment Insurance Act indicates the grounds of appeal from a Board of Referees decision.

I acknowledge the presumption established by the case law indicating that a full-time student is not available for work.

The claimant can rebut this presumption by showing that she was referred to the training course by the Commission or that she had an appropriate history of combined work and study, prior to her employment application.

In Whiffen (Federal Court of Appeal, A-1472-92), Marceau J. indicates:

Availability is usually described, in the case law, either as a sincere desire to work demonstrated by attitude and conduct and accompanied by reasonable efforts to find a job, or as a willingness to reintegrate into the labour force under normal conditions without unduly limiting one's chances of obtaining employment.

In Faucher (Federal Court of Appeal, A-5696), with respect to the assessment of the evidence, Marceau J. makes the following statement:

We are of course fully aware that a claimant's availability is a question of fact, which should normally be disposed of on the basis of an assessment of the evidence, a function which is within the authority of the Board of Referees. However, in this instance we believe that the members of the Board, and the umpire after them, assessed the facts on the basis of a concept of availability that is not consistent with the concept defined by the Act, as it has been interpreted in the case law. There being no precise definition in the Act, this Court has held on many occasions that availability must be determined by analyzing three factors - the desire to return to the labour market as soon as a suitable job is offered, the expression of that desire through efforts to find a suitable job, and not setting personal conditions that might unduly limit the chances of returning to the labour market - and that the three factors must be considered in reaching a conclusion. On reading the reasons for decision of both the Board of Referees and the umpire, it appears that the third factor was the only one really given any weight, eclipsing the other two, and that the result was a conclusion that seems to have no real connection to the situation as it may be seen from all of the circumstances.

Furthermore, the Board of Referees acknowledged that the claimant had an appropriate history of combined work and study, even several such experiences, but indicated that because they had been several years ago, her history should not apply to the period in question.

In Hutchison (CUB 21322), Dubé J. indicates that although an appropriate history of combined work and study must be shown, nothing in the Act, the regulations or even the case law suggests that the appropriate history of combined work and study must be during the qualifying period:

On the other hand, the dissident member of the Board held that he could not find anything in the Act, the Regulations or the jurisprudence that would suggest that the history of attending courses and working at the same time must be in the qualifying period. I agree with the dissenting member. The claimant's claim may not be disallowed on that sole ground. Clearly, if she in previous years has been able to cumulate study and work at the same time in Halifax, she can do it again, bearing in mind that the courses are held during the day and that her work in the past has been night-work as waitress, bar tender, etc.

In MacPhee (CUB 22820), MacKay J. states:

However, a student can rebut the presumption that he or she is not available for work by demonstrating an established pattern of combining work and full-time studies. Mr. Justice Walsh sitting as Umpire, in CUB 7261, Girard, suggested that where there is proof that a student can engage in employment while studying full time, he or she may be considered available for work while in school:

(...)

In the case before me, the claimant argues that he has established a pattern of working part-time during school. He did so during his years in high school from 1982 to 1984 and also in his first year of university in 1985. However, from 1986 to 1991, the claimant's employment was all full-time and he was not engaged in a course of study.

He submits that it is not only the most recent employment but rather the entire working history of a claimant that must be considered to determine if there is an established pattern of part-time working during school. The Commission argues that the pattern must be established in recent employment.

(...)

While in only one of the above cases has the claimant's pattern of working during school hours been established some five or six years prior to his or her return to studies after a period of full-time employment, in my view the same principle applies even where the work and study pattern may not have been established ruing the course of the most recent employment. The claimant here has demonstrated that he had combined employment and studies not only during high school but also during first year university. Those were the years in which he had been engaged in studies. The fact that he then worked full-time, without engaging in studies simultaneously, ought not to discount the history of combined work and study when he had been enroled.

In light of the facts brought to the Board of Referee's attention, I feel that the Board did not attach enough weight to the evidence submitted by the claimant, particularly with respect to her flexibility with the classes she was taking at CEGEP and her job search.

The Board of Referees based its decision on an erroneous finding of fact made capriciously without regard for the material before it.

For all these reasons, the claimant's appeal is allowed, and the matter is referred back to a differently constituted Board of Referees for reconsideration and a decision.

(Case law consulted: Ana Francisca Romero (CUB 33603), Gisèle Coulombe (CUB 35820), Louis Le Duc (Federal Court of Appeal, A-134-95), Yvonne Endrew (CUB 30595), Lucien Dionne (CUB 38185), Marie Stolniuk (Federal Court of Appeal, A-686-93), Maureen Silkstone (CUB 32958), Jean Whiffen (Federal Court of Appeal, A-1472-92), Francine Henry (CUB 13473), Michael Bouchard (CUB 18037), Sarto Landry (CUB 20021))

Pierre Blais

Umpire

OTTAWA, ONTARIO
December 17, 1998