IN THE MATTER of the EMPLOYMENT INSURANCE ACT
- and -
In the matter of a claim for benefit by
Trevor CAREEN
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IN THE MATTER of an appeal by
the claimant
from a decision of a Board of Referees given
on January 7, 2000, at St. John's, Newfoundland
D E C I S I O N
GUY GOULARD, Umpire
The claimant appeals the majority decision of the Board of Referees (the "Board") which confirmed the Commission's determination that he did not qualify for regular employment insurance benefits because he was not available for work while attending a full-time training course.
The claimant worked for DALEY BROTHERS LTD from June 3 1999 until July 9, 1999. On October 2 , 1999, he applied for employment insurance benefits indicating he had left his employment because of a shortage of work. An initial claim for benefits was established effective October 3, 1999. The Commission later determined that the claimant was not available for work because he was attending school on a full-time basis and it imposed a period of disentitlement to employment benefits.
The claimant appealed the Commission's decision to the Board of Referees which, by a majority decision, dismissed the appeal. He now appeals the Board's decision to the Umpire.
This appeal was heard in St. John's, Newfoundland, on November 15, 2000. The claimant was represented by Mr. Tom Williams. The Commission was represented by Mr. David Demirkan.
The claimant argued that the Board of Referees erred in law when it decided that "the claimant has not proven his availability according to section 18(a) of the El Act", because the claimant being a fisher should have the issue of his availability determined under the Employment Insurance (Fishing) Regulations.
These Regulations were established in 1996. In the 2000 Annotated Employment Insurance Statutes by Karen L. Rudner, we find the following annotations on the E.I. Fishing Regulations: "The effect of these Regulations is to establish a separate scheme of employment insurance for fishers, which is accomplished by redefining crucial terms of the Act and providing definitions for concepts that apply exclusively to fishers.".
Subsection 9(3) of the Employment Insurance (Fishing) Regulations provides that:
9(3) A fisher is unemployed and available for work in respect of the fisher's emolument, engagement or operation of a business in fishing, whether it is an insurable employment or not, during the period referred to in subsection 8(11).
In its decision the Board state "the claimant is a fisher and applied for benefits as a fisher". I am therefore satisfied that the Board has erred by using section 18(a) of the Act instead of using subsection 9(3) of the Employment Insurance (Fishing) Regulations and other relevant sections of these Regulations to arrive at a determination of availability.
The Commission argued that a Regulation cannot override provisions of its enabling legislation. The purpose of these new Regulations is specifically to establish a new scheme of employment insurance coverage for fishers.
The matter should therefore be returned to a newly constituted Board to deal with this matter to determine if, in fact, the claimant falls within the definition of fisher under the Employment Insurance (Fishing) Regulations - and -, if so, whether he meets the requirements of availability under those Regulations.
Accordingly, the decision of the Board of Referees is set aside and the matter is referred to a differently constituted Board of Referees for a redetermination. The decision of the Board of Referees dated January 7, 2000 will be removed from the appeal docket.
GUY GOULARD
UMPIRE
OTTAWA, Ontario
November 30, 2000