IN THE MATTER of the EMPLOYMENT INSURANCE ACT
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In the matter of a claim for benefit by
James CASHA
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IN THE MATTER of an appeal by the claimant
from a decision of a Board of Referees given
on December 3, 1999 at Brampton, Ontario
GUY GOULARD, Umpire
The claimant appeals from a unanimous decision of the Board of Referees (the "Board") which upheld the Commission's determination that he did not qualify for regular employment insurance benefits because he had not shown his availability in light of restrictions in his Employment Authorization.
The claimant worked for McNally and Sons Ltd. from June 27, 1997 until October 1, 1999. On October 5, 1999, he applied for employment insurance benefits indicating he had lost his employment because of a shortage of work. The Commission determined that the claimant had been working in Canada under a work permit that specified that the permit allowed him to work only for McNally and Sons Ltd. The Commission concluded that not being allowed to work for other employers, the claimant was not available and did not qualify for employment insurance benefits.
The claimant appealed the Commission's decision to the Board of Referees which unanimously rejected the appeal. He now appeals the Board's decision to the Umpire.
This appeal was heard in Windsor, Ontario, on October 4, 2000. The claimant was present. The Commission was represented by Mr. Derek Edwards.
In its decision, the Board of Referees states that the claimant had indicated that as an Engineer he qualified for work under the NAFTA and that once he would have found an employer able to offer him employment as an engineer, he needed only to present himself at a border crossing where he could obtain a work permit. The Board did not accept that, stating there was no way its members could predict the outcome of a Customs Officer's investigation. The Board concluded the claimant would only be considered available when in possession of an unrestricted work permit or some other form of status to remain a resident of Canada.
The issue of the applicability of the availability requirement under Section 18 of the Employment Insurance Act to claimants working under work permits was recently dealt within the Jozef Juris decision (CUB 44956). In that case, where the facts were very similar to those in the case before me, Justice Haddad wrote:
"The claimant is a Slovak immigrant and upon his arrival in Canada he was given a document issued by the Department of Citizenship and Immigration entitled "Employment Authorization" which authorized him to become employed by Acura Landscaping Ltd. but prohibited him, inter alia, from working for any other employer or in any other occupation or location. He pointed out during his oral presentation that he paid unemployment insurance premiums the same having been deducted by his employer from each pay cheque. Upon having been laid off he was capable of and available for work but was prevented from becoming employed by the restriction placed upon him by the terms of the Employment Authorization.
Sometime after having been laid off he applied a new Employment Authorization at a cost of $150 and in due course, a new document was issued removing the restriction to which he had been subjected. Pursuit of a new authorization indicates that claimant was available and ready to become employed. The restriction placed upon him frustrated his desire to work. A question arises as to the interpretation and application of section 18. In my view, that section applies to circumstance of unavailability created by a claimant by his absence or by engaging in an activity of his own choosing preventing him from satisfying the onus of proving availability. It is not intended to apply where unavailability is imposed upon a claimant in circumstances beyond his control when the claimant is ready, available and willing to accept employment. That claimant in this case finds himself having to pay insurance premiums pursuant to the provisions of one federal statute and then being informed that he is not entitled to benefits because of a restriction imposed pursuant to another federal statute."
The claimant is a professional engineer who lost the employment he was entitled to under a restricted work permit. He is told that, notwithstanding the fact that he has paid his employment insurance premiums while he was working, he cannot qualify for employment benefits until he has in fact secured employment which would be a condition to obtaining a work permit. I fully agree with Justice Haddad's reasoning and conclusion, section 18 is not applicable in the circumstances under review. The Board of Referees erred in law in its reliance on that section.
The appeal is allowed.
GUY GOULARD
UMPIRE
OTTAWA, Ontario
October 13, 2000