CUB 58371

A. Gobeil, Umpire:

The Commission is appealing a Board of Referees' decision reversing one that it had given on October 3, 2002 regarding the claimant in the following terms:

[Translation}

"We wish to inform you that we are unable to pay you benefits from September 2, 2002.

You were taking a training course on your own initiative. Therefore, you cannot be considered as eligible for work."

The Board of Referees wrote:

[Translation}

"EVIDENCE AT THE HEARING

During the hearing, the claimant demonstrated to the Board of Referees that he was still look for employment and that he would be willing to abandon his courses if he found a suitable job.

The claimant said that his training was spread out over 17 periods, which represented a total of less than 15 hours a week, including homework.

He has two free days a week, Wednesdays and Fridays, and he mentioned that he can change his course schedule, if necessary, if his teachers agree.

FINDINGS OF FACT, APPLICATION OF LAW, DISPOSITION

The Board of Referees unanimously considers that the claimant is available for work and, consequently, allows his appeal and reinstates his entitlement."

In the Bois decision (A-31-00), the Honourable Justice Desjardins mentions the three criteria for availability brought forward in the Faucher decision (A-56-96):

"1. a wish to return to the labour market as soon as suitable employment is offered;

2. an indication of this wish by efforts to find such suitable employment;

3. absence of personal conditions that unduly limit chances of returning to the labour market."

In this case, the claimant has always said that he wanted to return to the labour market.

According to the Board of Referees, the claimant "has demonstrated that he was still looking for employment". I have no reason not to believe this statement. The hearing before the Board of Referees was not recorded.

Lastly, the claimant told the Board of Referees that his training represented a total of less than 15 hours a week, including homework. His course schedule can be changed if his teachers agree and he has two free days a week (Wednesdays and Fridays).

However, in the document entitled "Information on Training Courses", which he completed on September 26, 2002, while the course had started on the previous September 2, the course schedule is from 8:00 am to 3:00 pm on Mondays, from 10:00 am to 3:00 pm on Tuesdays, from 10:00 am to noon on Wednesdays, from 8:00 am to 4:00 pm on Thursdays and from 10:00 am to 11:00 am on Fridays. He said that with this schedule he has 21 hours of course time, which can include from eight to nine hours of homework. In the same document, question 15 asks him to identify the days and hours during which he is willing to work, taking into consideration the days and hours during which he is taking courses. He made no mention of days or hours.

These statements clearly contradict his testimony before the Board of Referees. Board members could have ignored or disregarded these statements and attached greater importance to the claimant's testimony, but they were under the obligation, after examining and assessing the two versions in the overall context of the evidence, to indicate why they were disregarding the first statement. They did not do so and this constitutes a error in law.

Case law is consistent in its assertion that the credibility of the parties and the witnesses must be left up to the Board of Referees who are in a better position to assess it since they can question and observe behaviour.

The case under study is a clear example of such a situation. In the absence of the claimant's testimony, how can I be in a position to weigh the evidence regarding the claimant's contradictory statements in order to dispose of them.

However, the claimant may perhaps justify his position before the Board and provide a reasonable explanation of the fact that his testimony is at odds with his initial statements.

The time that the claimant can possibly devote to regular work while he is pursuing his studies is critical in terms of the criteria established in the Faucher decision, particularly with regard to the third criterion.

This is why it seems necessary to me that the decision to consider or disregard the claimant's initial statements be taken as it should have been by the Board of Referees, at the risk of reopening the whole debate.

CONSEQUENTLY, I am ordering the return of this case to a newly constituted Board of Referees for rehearing.

Albert Gobeil

Umpire

Montreal, Province of Quebec
September 2, 2003