CUB 60534

GUY GOULARD, Umpire

The claimant established a claim for benefits effective April 29, 2002. The Commission later determined that the claimant was not available for work as he had failed to show that his intention was to seek and accept employment. The Commission imposed an indefinite disentitlement to benefits effective April 29, 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. This appeal was heard in Vancouver, British Columbia on March 9, 2004. The claimant was present.

In this file there appears to have been a very early position taken by the Commission that the claimant would not receive benefits, a position that the Commission appeared to have been unwilling to reconsider whatever the claimant may state or do.

The Board of Referees to a large extent accepted the Commission's position and simply rejected the claimant's evidence and submissions by stating that it found little evidence to support the claimant's contention that his intention was to seek and accept employment.

A review of the file reveals that the claimant indicated, in his application for benefits, that he was ready and willing to work. At the first reported interview with a Commission agent on July 11, 2002, the claimant stated that he was looking for work but that it was difficult to find work because of his age, 63. He indicated that there was no work in Ashcroft where he resided but that he went to Whistler and Vancouver to look for work. That interview focused on the claimant's residence. The claimant was told that he should start keeping track of his work search.

The next reported interview is from July 25, 2002 (Exhibit 8). A decision had already been made to refuse benefits "based on the facts and evidence on his claim file". This decision had been based on the Commission's finding that the claimant had not accumulated the minimum hours of insurable employment. Again the interview focused on the claimant's place of residence. The interviewer wrote that the claimant had stated he was 63 years old and semi-retired and only wanted to work in Whistler for the winter months. Although this statement was repeatedly contradicted by the claimant, it is referred to in the Commission's submissions to the Board and in the Board's decision.

Next follows an interview on August 26, 2002, following a Board's decision to the effect that the claimant had the required hours of insurable employment to establish a claim. The investigation now focuses on whether the claimant had been unemployed and available for work since April 28, 2002. The claimant explained that he has closed a self-employment business he had operated until the previous year. He again stated that he was willing to work in the Ashcroft or Whistler areas. He indicated that he was looking for work in the fitness field. He indicated that he had talked to former clients of his company and had contacted two golf clubs for possible employment.

On August 30, 2002, the claimant has been informed that his claim is denied. During an interview on that date (Exhibit 10), the claimant indicated that he has contacted people in the tourism industry in regard to possible employment but no work was available. He also indicated that he had contacted a sports outlet in Whistler but nothing was available for him. He stated that there was a misunderstanding in the July 25 interview; he explained that he was willing to work in any position relative to his skills and that he was not limiting his desire to work in Whistler in winter but that this was a prospect. Claimant added that he had also communicated with a few fitness clubs but had not been able to find work. He is then told to prepare a list of all his contacts for employment.

On August 31, 2002, the claimant faxed a list of possible employers he has contacted. The list includes some 30 contacts. No specific names of persons are mentioned but the telephone number is stated as well as the number of times he called and the reply when one was given.

In an interview on September 3, 2002, the claimant explained the list he had provided to the Commission and reiterated that he would be willing to work anywhere. He is told that there will be no change in the Commission's position.

The Commission's position is stated as follows in its Representations to the Board of Referees (Exhibit 15-1):

"The Commission reviewed the facts and determined that the claimant had not proven that he was available for work because he failed to show that his intention has been to seek and accept employment. The claimant states that he is semi retired and only want to work in Whistler in the winter months. His employment history confirms this. His job search is vague with no dates of contact and in most cases he spoke with no one and left a message only that he had called. The Commission therefore imposed an indefinite disentitlement from April 29, 2002 pursuant to subsection 18(a) of the Act (Exhibit 11)."

This contains blatant misrepresentations. The claimant had denied only being interested in working in Whistler during winter. His employment history in Whistler was explained by the fact that he had been self-employed during most of the period covered. The claimant had indicated at Exhibit 13 that "he called all employers listed and either spoke to someone or left a message for a call back and that where he listed "machine" or "message" he had not spoken to anyone. For more than 12 of the contacts, the claimant had given the name or position of the person he talked to or left a message for. On only 12 of the contacts is it indicated "message" or "machine". Although no dates are stated, there is not much vagueness, there is a business name, a telephone number and, in most cases, names of persons are stated.

Before the Board, the claimant reiterated that he had made all the contracts he listed and had provided some resumes. He explained that he has a place to reside in Whistler, Ashcroft and Vancouver and that he is looking for full-time employment.

The Board could reject the claimant's extensive evidence but it had to explain why it did so. Subsection 114(3) of the Employment Insurance Act requires that the Board's decision must include a statement of the findings of the Board on the issue of facts. That section reads:

114(3) A decision of a board of referees shall be recorded in writing and shall include a statement of the findings of the board on questions of fact material to the decision.

In the Parks decision (A-321-97) Mr. Justice Strayer wrote:

"We are all in agreement that the Board erred in law in failing to comply adequately with subsection 79(2). Specifically we are of the view that it was incumbent on the Board to state, at least briefly, that it rejected critical parts of the evidence of the applicant on grounds of credibility, and why it did so."

And in the McDonald decision (A-297-97) Mr. Justice Linden wrote:

"It is imperative for Boards of Referees to address the issues actually presented to them carefully and to explain their findings in coherent and consistent reasoning. Anything less is unacceptable."

The Board's failure to explain why it totally rejected the claimant's extensive and probative evidence in favour of the Commission's very subjective position constitutes a critical flaw in the Board's decision. I can only conclude that the Board based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.

I see no need to return this matter before a new Board as there is ample evidence, as stated above, on which to find that the claimant had shown that he was available for work.

Accordingly, the claimant's appeal is allowed and the Board's decision is set aside.

Guy Goulard

UMPIRE

OTTAWA, Ontario
March 19, 2004