TRANSLATION
IN THE MATTER of the EMPLOYMENT INSURANCE ACT
and
IN THE MATTER of a claim for benefits by
Terry GODIN
and
IN THE MATTER of an appeal to an Umpire by the claimant from the decision of a Board of Referees given on December 10, 2003, at Montreal, Quebec
DECISION
Quesnel, J.:
The Commission denied the benefits claimed because the claimant was taking a training course on his own initiative and was therefore not available.
The Board of Referees dismissed the appeal brought before it by the claimant.
Counsel for the claimant argued that the Board of Referees erred in deciding as it did.
He believes that the Board erred in law when it found that the claimant did not prove his work-study history, which could have allowed him to qualify for benefits even though it dated back more than two years.
He argued that there is no required time limit in the Act. In this regard, he relies on the decision rendered by an Umpire in CUB 43253.
The Federal Court of Appeal 1 stated that a claimant taking a full-time training course is deemed not available; however, this presumption could be rebutted by proof of exceptional circumstances such as a work-study history.
In the instant case, the claimant did prove that he had a work-study history while at CEGEP in 2001, 2002 and 2003. He received unemployment benefits at that time.
He submitted a list of the steps he had taken to find employment from August 2003 to December 2003, despite the Commission's decision to deny the benefits claimed as of August 31, 2003.
The Federal Court of Appeal 2 has held that, to successfully prove availability, a claimant must demonstrate his desire to return to the labour market, the expression of that desire through efforts to find a suitable job, and not setting personal conditions that limit the chances of finding a job.
The claimant proved that he was available for work, was willing to withdraw from his courses as soon as he was offered a suitable job, and that he continued to take steps to find employment. He says that he is available to work days, evenings or nights, on every weekday and on weekends.
Nowhere in its decision did the Board of Referees question the claimant's word regarding his availability. However, without stating its reasons for doing so, it tersely concluded that the claimant did not prove his availability.
It is the obligation of a Board of Referees to consider all the evidence before rendering a decision. Failing to consider certain relevant facts without stating why is an error of law. 3
Since the Board of Referees erred in refusing to accept a work-study history dating back more than two years, I am warranted in intervening to give the decision that should have been given in this case.
Consequently, the claimant's appeal is allowed. He is entitled to receive benefits as of August 31, 2003.
The decision in this matter rendered by the Board of Referees on December 10, 2003, is rescinded.
André Quesnel
Umpire
Montreal, Quebec,
December 10, 2004
3 Boucher (A-270-96) - EL Maki (A-737-97) - Rancourt (A-355-96) and Lépine (A-78-89)