CUB 49959

IN THE MATTER of an appeal by the claimant
from a decision of a Board of Referees given
on October 7, 1999, at Sarnia , Ontario

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 left his employment to attend a full time course and was not available for work.

The claimant worked for the St. Clair Catholic District School Board from February 7, 1990 until March 12, 1999. On June 17, 1999, he applied for employment insurance benefits. His Record of Employment indicated that he had left his employment because of a shortage of work. A claim for benefits was established effective June 13, 1999. The claimant later advised that he had commenced a full time course of instruction. The Commission concluded that he was not available for work and imposed an indefinite disentitlement to 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 Sarnia, Ontario, on October 3, 2000. The claimant was present. The Commission was represented by Mr. Derek Edwards.

The claimant left his employment with the St. Clair Catholic District School Board because he had been told there would be cut-backs and he had found a job in Vale, Colorado. Because the claimant's wife was not permitted to work in the U.S.A., he came back to Sarnia. His claim was then established.

On July 5, 1999, the claimant commenced a full time course as a Microsoft Certified Systems Engineer. On August 3, 1999, at the request of the Commission, the claimant completed a Training Course Questionnaire in which he indicated that he could not change his course schedule to accept work and that the school policy did not allow him to accept work. He indicated he could only work on weekends and he was doing so. He also indicated that his intention was to devote his time to the course of instruction rather than to find work. To the question "Do the conditions of the (student) loan or grant permit you to work?", he answered "no".

The claimant had not been referred to this course by an employment counsellor, although other students in the program had been so referred.

The Commission determined that the claimant had failed to prove he was available for suitable employment and imposed an indefinite disentitlement effective July 5, 1999.

FINDINGS AND REASONS OF THE BOARD

1. Robert White was denied benefits by the Commission because in their view he was engaged in a training program which he had initiated himself and from which he was unwilling to deviate from his goal.

2. The Claimant explained how he had taken the initiative in enrolling in the training program at great expense to himself. He indicated that there were other students in his class who were sponsored and funded by HRDC, and that what he was doing was similar but at no cost to the public purse. He sugggested that he was being penalised because he had been proactive.

3. Mr. White suggested that by making his own decision and proceeding with his goal he had saved a minimum three months of delay before he could have been authorised by the Commission to enroll in this prestigious program.

4. He also indicated that he had applied for jobs related to his area of expertise with Laidlaw, the Point Edward Casino and with Domino's Pizza, which is where he is presently working part time.

5. The Board of Referees heard the case presented by Mr. White and agreed with the logic on his case. They commend him for the initiative that he has shown. However they are bound by the limitations of the legislation which is specific in the requirement that all beneficiaries of the Employment Insurance program must prove on a daily basis their availability and capability of work.

DECISION OF THE BOARD

The Board of Referees denies the Appeal.

In his presentation before me, the claimant argued that he had not left a job to take a course but that, on his return from the U.S.A., he thought he would take a course that would secure his chances of a permanent job. He knew that the Commission had approved the course he opted for and when he completed the Training Course Questionnaire, he thought this questionnaire was for the purpose of having his course approved. He stated that he gave the answers which eventually caused him to lose his right to benefits because he believed that to answer otherwise would jeopardize his chances of having the program approved. For example, he thought if he stated that his intentions were not to devote himself to the course and to accept employment this would affect his progress with the course and would be seen as an indication he was not taking the course seriously. He also indicated that he was seeking whatever employment he could find and that if he found a position he could have accepted it and continued his course on a part time basis. He stated he had been proactive in starting the training program without first seeking approval to save the months it would have taken to get approval which he thought would eventually be granted. He reiterated that he was searching for work during his course and would have been available if he had found some. He has now secured full time employment.

In the Landry decision (A-719-91), Mr. Justice Hugessen of the Federal Court of Appeal writes:

"While it is true that there is a presumption that a person enrolled 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'."

"An extensive and consistent line of authority has long since confirmed that a student taking full-time courses is not available for work within the meaning of the Unemployment Insurance Act. This rule is subject to two exceptions. The first concerns a student sent on a course by the Commission: that is not the claimant's position. The second exception covers a student who over the years has established a record that he held full-time employment while studying: that is not this claimant's position".

The Federal Court of Appeal disagreed with the Umpire and reversed his opinion. The work place has evolved since. I, like the Federal Court of Appeal in the Landry case, do not agree that the option of attending a full time training program should be curtailed by too stringent restrictions. For workers, wishing to extradicte themselves from a work environment which perpetuates the cycle of short term employment and reliance on employment insurance benefits, a training program might be the best option. I agree with the principle enunciated in the Floyd decision (A-168-93), that the employment insurance system is not meant to subsidize claimants who leave the work force to attend school. On the other hand, to subsidize a training program for a worker with limited skills who is already unemployed and receiving benefits might be an investment of federal funding which will, in the long term, reduce that worker reliance on government support during periods of unemployment.

In the Lestander decision (CUB 18337), Justice Muldoon summarized the jurisprudence that had developed up to then as follows:

"The general rule is that a claimant is not available for employment when educational courses are followed full-time, as stated in CUB 11227 VALL and CUB 13800 STAMP. Unemployment Insurance is not intended to subsidize a claimant while he or she is at school, college or university, no matter how meritorious his or her intentions and desire for self-improvement. Reference is made to CUB 14550 DAKIN. Despite the general rule, attendance at a course of instruction does not in itself warrant disentitlement for not being available, since there is no automatic prohibition. CUB 12381 CAREY and CUB 14677 KAASGAARD are noted in that regard. The claimant may be able to rebut the presumption that attending school renders him or her unavailable for work and show that he or she is indeed so available, but the claimant bears the onus of that. CUBS 7841, 7910, 10512, 13800 and 13920 are noted. The usual tests of availability apply as noted in CUB 10415 MOORE."

The presumption that a claimant who is enrolled in a full-time training program is not available can be rebutted if there are exceptional circumstances and the claimant is available for employment.

- the claimant did not leave his employment to attend the course, he was already unemployed and receiving benefits and had no emminent prospect of full-time employment;

- the opportunities for employment in the field the claimant had worked in were diminishing;

- the training program was a short term (3 months) program focussed on a growing field of employment;

- the claimant had been told that he should have no problem in securing permanent employment on completion of the program;

- the program was an "approved program". Other students' participation was funded through the employment insurance system;

- the claimant had found part-time work and was looking for more. He stated that he needed all the work he could find to support himself and his dependents. He also stated that if he had found full-time work, he would have accepted it and pursued his course while working.

On the issue of availability, the Board found that the claimant was not available. Board members indicated that they agreed with the claimant's logic in taking the course and commended him for the initiative he had shown. They nonetheless denied the appeal, indicating that they were "bound by the limitation of the legislation which is specific in the requirement that all beneficiaries of the employment insurance program must prove on a daily basis their availability and capacity of work". The Board does not indicate why they disbelieved the claimant's evidence that he would have accepted full-time employment had he found such. The Board might have put too much emphasis on the claimant's answers in the Training Course Questionnaire. The claimant has provided a credible explanation for those answers.

It may well be that the claimant would have been more prudent in obtaining the Commission's approval prior to starting the training program. He explained that he was proactive because he did not want to lose more time in his search for a solution to his inability to find stable and secure employment that would allow him to properly support his dependants.

I therefore find that the claimant has demonstrated a number of exceptional circumstances in his case which warrant an exception to the rule of disqualification from benefits while attending a full-time training program. I am also satisfied the claimant has shown that he was available for work.