CUB 50001

IN THE MATTER of an appeal to an Umpire by the
claimant from a decision by the Board of Referees given
on June 18, 1998, at Belleville, Ontario

DECISION

Mr. Mate has waived his right to an oral hearing before the Umpire and accepts that a decision be rendered on the basis of the record.

This is an appeal from the unanimous decision of the Board of Referees sitting in Belleville, Ontario, the regional office of the Commission. The claimant is now in Hungary and did not attend before the Board of Referees.

Dr. Zoltan Mate is a teacher by profession and has a Ph. D. in both literature and education. After coming to Canada from Hungary he taught at the University of Manitoba in the Department of Education from 1987 until 1990. Apparently he left because of health reasons and needed a complete change of atmosphere. He moved to the North West Territories and was employed by the Baffin Divisional Board of Education in Iqaluit. I believe he was the school principal for some time but, the year prior to becoming ill, he had been a high school teacher.

At the end of the school year in June, 1997, he went to Hungary on a holiday and in August of that same year he became ill. He was at that time, and, I believe, presently still being treated at the Department of Neurology of the Hungarian Military Hospital in his country of birth. He did not file a claim for benefits until early 1998 since he was able to subsist on sickness benefits that the School Board in Iqaluit provided through its insurance carrier. His medical reports were obviously sufficient to satisfy the School Board's insurance carrier and he was paid the maximum sickness benefits up to and including December, 1997.

Some time in early 1998, Mr. Mate made an application for employment insurance sickness benefits. In its reply letter dated April 8, 1998, the Commission wrote as follows:

"I understand that you have applied for both EI and wage loss insurance.

I am prepared to approve your claim for benefits if you sign and return the following statement to me.

I agree to repay any employment insurance benefits received for the same time that I get wage loss insurance."

This document was executed by the claimant on April 20, 1998 and forwarded to the Commission at Yellowknife along with medical reports and assessments. By letter dated May 6, 1998, the Commission then advised the claimant that they acknowledged receipt of his correspondence but that before considering paying benefits they required additional information. They indicate that the medical information received relates to his condition as of August, 1997; that they require more up to date medical reports showing that he is still not capable of working. He replies with updated medical reports and, in this correspondence, relates that he was incapable of travelling. They reply that he must support this with medical evidence.

An internal memorandum prepared by the Commission indicates the following. It confirms that he fell ill on vacation in Hungary and was paid sick leave through the Board of Education until December, 1997; the fact that he is out of the country is part of the reason for the delay in making a decision. It refers to the outstanding claim he has made to the School Board insurers in which he is seeking long term disability payments. What is also informative in this internal memorandum which is dated May 8, 1998, which refers to the teachers having a permanent residence in the North, they may leave during the summer months but they may return in September. They are provided with a warehouse to store their furnishings in Montreal since their residence comes furnished. The closing paragraph of the memorandum reads as follow:

"It was also confirmed that medical treatment is available in the area where the claimant resides, there may only be a nursing station with one or two nurses available and a doctor makes occasional visits. However, if hospitalization is required the only hospital is in Iqualuit. If it is a serious illness patients are airlifted 2 hours south to either Ottawa or Montreal."

"He states he cannot travel but this statement is not supported by medical evidence?

Is treatment available in Canada or are the circumstances such that he can be paid?

If he can be paid based on medical evidence dated March 31, 1998, for how long?"

What follows in the file appears to indicate that the medical information was forwarded to HRDC in Belleville on May 13, 1998. A memorandum from Dr. G.E. Irwin, Exhibit 13-2, confirms the following:

"1. Yes this man was certified still ill and under treatment as of March 31, 1998.

2. Any treatment received in Hungary is available in Canada."

"Benefits cannot be paid to you while you are residing outside Canada. You are receiving medical treatment which is readily available in Canada where you normally work and reside".

Representations of the Commission to the Board of Referees summarize the facts and state that the Commission determined that the claimant was not entitled to benefits from March 1, 1998 because he has not submitted a medical certificate. They go on to state that it was reviewed in Belleville after it was transferred to the overseas unit and after additional information was obtained from the medical adviser. The observations further mention that it was determined that since medical treatment is available to him in Canada the provisions of exemption provided in regulation 55 does not apply - the claimant has submitted a medical certificate but this is not proof that the medical treatment is only available in Hungary. The observations then go on to quote a decision of Justice Rothstein, CUB 27413, which states as follows:

"It seems clear that Parliament, for better or worse, decided upon a very strict approach to the question of entitlement to unemployment insurance benefits for persons outside of Canada, presumably with a view to avoiding abuse of the unemployment insurance system. In paragraph 32(b) it enacted a clear and unequivocal restriction of unemployment insurance benefits for persons not in Canada. It established by regulation those exceptions it deemed appropriate. I do not see how it is open to an Umpire to attempt to interpret paragraph 32(b) in a broad and generous manner when Parliament has set out an exhaustive list of exceptions in section 54 of the Regulations."

"Until parliament amends Regulation 54 to include persons who must undergo medical treatment abroad as their illness prevents them from returning to Canada, this latter group remains subject to the application of subsection 45(b) [now 32(b)) of the Act. Accordingly, since the claimant was not in Canada from October 23, 1988 to November 26, 1988, she was not entitled to receive sickness benefits for this period."

A further decision was quoted, CUB 26045, a decision of Justice Gibson which dealt with someone who was vacationing in Florida. I scanned at this particular decision and it appears totally irrelevant.

The Commission's observations nevertheless conclude that the claimant situation is similar to that found in CUB 20711 and go on to state:

"It should be noted, however, that even if such proof is submitted, the fact remains that he is outside Canada and is receiving treatment that is available in Canada as evidenced by Exhibits 11 and 13."

The observations then attach the entire section 55 of the Regulations which is extremely lengthy but only paragraph 55(1)(a) is pertinent and I will comment on it later in this decision.

In his letter of appeal, the claimant attaches a summary of the diagnosis which is dated March 31, 1998 and which reads as follows:

"What is the estimated or actual date of recovery?

UNKNOWN

Comments: The patient is treated with cyclothymia syndrome and depression syndrome since 08.97. We have diagnosed permanent psychic decompensation. The treatment is antidepressive drugs. The ongoing treatment and supervision is necessary."

Following this submission, additional representations were prepared by the Commission suggesting that he has re-submitted the same medical certificate that was already on file. This does not support his statement that he cannot travel and the conclusion is "In the absence of proof otherwise by the claimant the fact remains that the claimant is outside Canada and treatment for his condition is available in Canada".

The Board of Referees found three issues which it had to consider: (1) Did the claimant have medical certificate to support his claim? (2) Benefits cannot be paid while he is outside of Canada? (3) He is receiving treatment which is readily available in Canada where he normally resides and works?

They acknowledged having the exhibits package before them. They concluded that while on vacation the claimant became ill and acknowledged that he stated in correspondence that he was unable to return to Canada because of illness. In their conclusion, they wrote the following:

"It is the unanimous opinion of the Board of Referees that the Commission requested that medical evidence be forwarded to them verifying that the Appellant was unable to travel because of his illness. It was also requested that proof that medical treatment was not available in Canada. When we examined Exhibit 6.2, the medical certificate issued by the Appellant's Doctor in Hungary, it does not state that the Appellant is forbidden to travel. We look at Exhibit 13.2 and we are advised that the treatment is available in Canada. We are also guided by jurisprudence as cited by CUB 27413 and CUB 20717. We cannot support the appeal."

I am absolutely satisfied and convinced beyond any doubt that this claimant was ill at the time he filed his claim for benefits. The medical evidence forwarded to the Commission was submitted to their medical expert who confirmed in Exhibit 13-2 "Yes, this man was certified still ill and under treatment as of March 31, 1998". This cannot be disputed.

In rendering its decision the Board relies on the jurisprudence cited by the Commission, CUB 27413 and CUB 20711. I agree Justice Rothstein did write as quoted in the observations. However, that case dealt with an individual who had left Canada to go to the United States to follow a course to which he had not been referred or recommended by the Commission.

In CUB 20711, Justice Denault was dealing with Regulation 54 when he determined that the claimant was not entitled to benefits. At that time, in 1991, Regulation 54(3) read as follows:

"A person who is a claimant in Canada is not disentitled from receiving benefits when admitted to a hospital or equivalent institution in a country other than Canada for the purpose of medical treatment not available in Canada:"

There is a considerable distinction between subsection 54(3) as it was and what is now paragraph 55(1)(a) of the Regulations. An exception is provided to disentitlement as follows:

"55(1) Subject to section 18 of the Act, a claimant is not disentitled from receiving benefits for the reason that the claimant is outside Canada

(a) for the purpose of undergoing, at a hospital, medical clinic or similar facility outside Canada, medical treatment that is not readily or immediately available in the claimant's area of residence in Canada if the hospital, clinic or facility is accredited to provide the medical treatment by the appropriate governmental authority outside Canada;"

(Emphasis added)

It should be noted that what is involved here is fifteen weeks of sickness benefits. It is not disputed that the claimant was ill at the time he filed his claim for benefits. This was confirmed by HRDC's own physician.

The point of contention is that Mr. Mate was outside Canada. The general rule under the legislation is that claimants who are not in Canada are not entitled to receive benefits. However, Regulation 55(1)(a) provides an exemption from this general rule whereby a claimant who is outside of Canada receiving medical treatment not readily or immediately available in the claimant's area of residence in Canada qualifies to receive benefits.

The fact before me clearly demonstrate that the medical treatment the claimant is receiving in Hungary is not readily or immediately available in Iqaluit, his area of residence in Canada. Accordingly, I am satisfied that he falls within the exemption provided for in Regulation 55(1)(a). Furthermore, it is not within the Commission's authority to require the claimant to return to Canada and take up residence in an area where treatment would be available. The Commission is bound by the unequivocal wording of paragraph 55(1)(a) of the Employment Insurance Regulations.

From the outset it appeared as though the Commission was prepared to allow benefits so long as the claimant undertook to reimburse the Commission should he be in receipt of wage loss insurance benefits (Exhibit 8-2). The Commission appears to have later changed its position and was not willing to pay the claimant benefits unless he was able to substantiate his inability to travel. However, his medical report states that his ongoing treatment and supervision is necessary. This is not refuted and contrary to the assertions of the Commission and the findings made by the Board of Referees, that medical evidence does indeed support a finding that Mr. Mate was not able to travel. In any event, there is no onus on the claimant to prove that he cannot travel. The only thing he must establish is that the treatment he is receiving in Hungary is not readily or immediately available in Iqaluit. This he has done.

For these reasons, the Board of Referees' decision is set aside and the claimant's appeal is allowed.