CUB 59837

GUY GOULARD, Umpire

The claimant established a claim for employment insurance benefits effective July 8, 2002. The Commission later determined that the claimant was not available for work as she was attending a full-time training course of her own initiative. The Commission imposed an indefinite disentitlement to benefits effective August 26, 2002.

The claimant appealed the Commission's decision to the Board of Referees which, in a unanimous decision, dismissed the appeal. The claimant appealed the Board's decision to the Umpire. This appeal was heard in Ottawa, Ontario, on December 9, 2003. The claimant was present. The Commission was represented by Ms. Catherine Lawrence.

In her Training Course Information Questionnaire (Exhibits 4-2 and 4-3), the claimant indicated that she was attending a 6 months Medical Laboratory Technician Training Program. The cost of the course is $7,465.61. The courses are given Monday to Friday 8:00 a.m. to 1:00 p.m. She stated that her intention is to devote her time to her course rather than find employment and that she is not willing to change her course schedule to accept work. She added that she would rather get her schooling done to get into the work force and that this will be easier once she is a Certified Laboratory Technician. She stated that she had not looked for work as her study load is very intense and that she will be seeking work as part of her Co-op placement. At Exhibit 5 the claimant stated that she was not available for work as she is attending school five days a week.

In her letter of appeal to the Board, the claimant submits that she registered in a course to improve her opportunity for full-time employment and that she is being discriminated against as other students in her course are receiving employment insurance benefits.

The Board reviewed the evidence and concluded that the claimant had failed to prove she was available for work.

On appeal, the claimant submitted that she was not aware of the requirement to obtain approval for a course prior to starting the course. She stated that the Commission should provide better information in this regard. She further stated that she would have been available for work every afternoon and evening. She submitted that the Commission's position will encourage people to continue receiving benefits while staying idle rather than attempt to improve their employability by educating and training themselves. At the hearing she basically repeated that she would have been available afternoons and evenings and had looked for work which she had found before the course ended.

It has been well established in the jurisprudence that a presumption arises against a claimant attending a full-time course that he or she is not available for work and that, although this presumption can be rebutted, this should only be in exceptional circumstances (CUBs 40147, 11989, 25153). In this last decision, Associate Chief Justice Jerome wrote:

"In order to rebut the presumption of non-availability in cases of this nature, a claimant must be able to demonstrate, by way of very convincing evidence, that obtaining employment is his principal concern and his interest in the course of instruction is only secondary."

In CUB 15439, Justice Dubé summarized very precisely and concisely three basic principles that apply to the issue of the right of a full-time student to employment insurance benefits. He stated:

"Normally, registration in a full-time course of study has the effect of disqualifying a claimant from receiving benefits since his availability for work is then in doubt (CUB 9903). To prove that he is entitled to benefits in this situation, a claimant must show that in the past he established a pattern in which he worked regularly while continuing to study (CUBs 9903, 10435 and 11146). The Unemployment Insurance Act, 1971 is not in principle responsible for subsidizing claimants' studies, except in the cases prescribed in section 39, when the Commission refers them to certain training courses."

And, in the more recent Lina Bois decision (A-31-00), Justice Desjardins again stated the principle that must be followed in determining the availability of a claimant who is attending a course of instruction. She wrote:

"... For that period there is no evidence of availability in the record that meets the three criteria of Faucher v. Canada Employment and Immigration Commission (1997), 215 N.R. 314, namely:

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 the case before me, the claimant had unequivocally stated that her intention was to pursue her course rather than look for work and that her availability would have been curtailed by her course requirements. At the time of the Commission's decision, the claimant was not in a position to look for work except as part of her job placement. This does not constitute availability as defined in the jurisprudence. The fact that other students in her course were entitled to receive benefits is not relevant as approval for training programs has to be obtained prior to the commencement of a course. It may well be that there should be a possibility for students who have already started a course to be considered for approval but that is not what is currently provided and one can understand that there are good reasons for the pre-approval requirement. As stated above, the Employment Insurance Act is not intended as a means for subsidizing claimants' studies, except in cases where the Commission refers them to certain training courses.

The claimant evidently made an excellent personal decision to improve her employment opportunities but, under the provisions of the Act, she was required to prove her availability for work which she has not done.

An Umpire's jurisdiction is limited by subsection 115(2) of the Employment Insurance Act. Unless the Board of Referees failed to observe a principle of natural justice, erred in law or based its decision on an erroneous finding of fact made in a perverse manner or without regard for the material before the Board, an Umpire is required to dismiss an appeal.

The claimant has not shown that the Board of Referees so erred. To the contrary, the Board's decision is well founded on the facts before it and on the relevant legislative provisions as interpreted in the jurisprudence.

Accordingly, the appeal is dismissed.

Guy Goulard

UMPIRE

OTTAWA, Ontario
December 22, 2003