CUB 66469

Hon. David G. Riche

The issue in this case was whether or not the claimant had sufficient hours of insured employment to establish a claim pursuant to s. 7 of the Act.

The facts of the case are that the claimant was originally from the Cape Breton portion of Nova Scotia and had accumulated some 533 hours of insurable employment. She then moved to the Halifax region. By doing so this changed the rate of unemployment to 6.1%. This meant that she needed 665 hours of insurable employment to qualify. Therefore, for the Halifax area, she did not have sufficient hours of insurable employment.

The issue is therefore whether or not the claimant was ordinarily resident in Halifax region or whether she was ordinarily resident in Cape Breton.

The Board found that the claimant's long-term residency in Cape Breton was sufficient to permit her to qualify for benefits. They felt she should not be penalized because she went to Halifax in order to receive work. They therefore allowed her appeal.

The Commission's appeal is based on the argument that the claimant had moved to Halifax because she gave a Halifax address when she applied for benefits and gave a residential address which was also Halifax. Her effective date of April 24, 2005 was also Halifax. They also pointed out that the claimant had moved to Halifax and lived in an apartment so that she could attend to interviews because she wanted to get a job there. The claimant had also advised that she was going to have her fiancé move to Halifax.

I have examined the record of employment which is dated the 27^th of August, 2004. Following her separation from her employment, the claimant then went to Toronto and took a course at the George Brown College. She was there from September 2004 to April 2005. In April 2005 she moved to the Halifax area. The purpose of her move to the Halifax area was to seek employment. She then applied for benefits, having obtained a place of residence there. Her claim would start May 8, 2005, some two weeks after her move to Halifax.

I am referred to the decision of Strayer, J., sitting as Umpire in CUB 21968, where he stated: "By paragraph 52(1)(a) of the Unemployment Insurance Regulations the length of period of benefit which a claimant is entitled to depends on the rate of unemployment in the place where he was ordinarily resident in the week preceding the day of the week in which the interruption of earnings occurred or in which the claim for benefit was made. In this case that would be the week preceding the week in which January 24, 1991 fell, that being the date he applied for benefits. At that time he had been in Ontario some sixteen months and by his own statements he still hoped to find other employment in Ontario at that time."

Then the Umpire went on to state: "The test of where one is ordinarily resident involves a consideration of both subjective and objective facts. Further, the test must be applied to the situation which existed in the relevant week, namely in the week prior to the application for benefits on January 24, 1991."

Having considered this decision, it is my view that the claimant in this case had just moved to the Halifax area and one could not yet say that she was ordinarily resident there. Presumably if she did not get work there that she would move from Halifax and would no longer be a resident. Being a resident and being ordinarily resident are two different things. The claimant in this case was ordinarily resident in Cape Breton and then she went to Toronto for six months. She did not become ordinarily resident in Toronto because she was there six months. She remained ordinarily resident in Cape Breton. Then she moved to Halifax. Surely by acquiring accommodation there and applying for benefits within a matter of weeks would not make her ordinarily resident. It is my opinion that had the claimant remained there for a number of months and acquired a job, and was later joined by her fiancé, one would conclude that she had established some type of permanency in her residence. I do not believe that one could say that Halifax was yet her usual place of residence.

For these reasons I am satisfied that the Board of Referees were correct when they made the decision they did in concluding that the claimant was still resident in Cape Breton and the rates of unemployment for that area should apply to the claimant.

I do not believe that it is appropriate that an analysis be done of what took place in the future as a decision had to be made as of May 2005. The fact that the claimant later came to work in August of that year and now had a permanent position in Halifax would not make her ordinarily resident back in April and May. She may be ordinarily resident now that she has established a permanent job and residence. I don't believe that that time had arrived when she applied for her benefits. For these reasons the appeal of the Commission is dismissed.

David G. Riche

Umpire

July 24, 2006
St. John's, NF