CUB 68476

GUY GOULARD, Umpire

The claimant established a claim for employment insurance benefits effective August 1, 2005. The Commission later determined that the claimant had failed to prove her availability for work as she was attending a course on her own initiative. The Commission imposed an indefinite disentitlement from November 20, 2005 pursuant to subsection 18(a) of the Employment Insurance Act.

The claimant appealed the Commission's decision to a Board of Referees which allowed the appeal. The Commission appealed the Board's decision. This appeal was heard in Toronto, Ontario on May 24, 2007. The claimant was present.

At exhibit 4, the claimant indicated that she had started a three month course in a Masters program at Dalhousie University which was to run from September 12, 2005 to December 7, 2005. The cost of the course was $3,154.00. Classes were given at varying times from Monday to Thursday. The claimant indicated that her intention was to either find full-time work rather than take her course or find full-time work while taking her course. She stated that she willing to change her schedule or quit her course to accept work. She was willing to accept employment at a salary of $60,000.00 or more in her field of expertise anywhere in Canada or in America. She stated that she had looked for employment and gave a list of employers she had contacted. She had been given interviews for some of the positions but had not been hired. The claimant had no history of combining full-time studies and full-time employment.

On October 14, 2005, the Commission informed the claimant that she would have until November 19, 2005 to find employment while pursuing her course. On November 1, 2005, the Commission sent a letter to the claimant asking her to provide information on her efforts to find employment. The claimant replied (exhibit 11) that she was looking for employment in her field of training and experience and that she would be willing to accept a salary comparable to what she has previously earned and even less if she could not find anything else. She wrote: "I accept both part time and full time offers as long as they are available for me. If there is a full time offer for me I can quit my job immediately. Working is my priority instead of studying. Going to school is the result of failure of finding any jobs." She gave her hours of availability until she could find employment. She confirmed that she would be willing to travel to accept employment. She also provided a list of her efforts to find employment but had not been successful in finding employment. She reiterated that her priority was to accept suitable employment.

In her letter of appeal to the Board of Referees, the claimant reiterated that she had been actively looking for employment and that the only reason she was still in school was that she had not been able to find employment. She had written exams for two positions and was hopeful that she might get one of these. She provided an updated list of her job searches.

The claimant appeared before the Board of Referees which reviewed the evidence, noting that the claimant's position was that she was attending school only because she could not find employment and that she had looked for employment in Canada and abroad. The Board allowed the claimant's appeal for the following reasons:

"The Board finds that the claimant had a previous work experience in her field of study.

The Board finds that the claimant has a master's degree in computer science from UNB.

Given the above, the Board finds that this claimant requires fewer hours to complete her course assignment.

Therefore the Board finds that constitutes exceptional circumstances. In addition, the claimant maintains that she will quit her course of studies if she finds a full time job."

On appeal, the Commission submitted that the Board erred in fact and in law in concluding that the claimant had established her availability for work notwithstanding the fact that she was attending a full-time university program. The Commission submitted that, once she has been given a reasonable time to find suitable employment, the claimant could not rebut the strong presumption of non-availability based on her attendance at a school program.

In this case, the Board of Referees accepted the claimant's evidence and submissions that her first priority was to find and accept full-time work and that she had made serious efforts to find such employment but without success.

In Lina Bois (A-31-00) Justice Desjardins outlined 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 at hand, the claimant has repeatedly stated that her first intention was to find and accept suitable full-time employment. She has presented evidence of her numerous efforts to find employment. She has indicated that she would have been willing to move practically anywhere to accept such employment. This evidence was not contradicted. The claimant found herself in the same position as many other well educated individuals who find it difficult to secure suitable employment.

The jurisprudence has unequivocally established that the Board of Referees is the primary tribunal for the finding of facts in employment insurance cases and that the role of an Umpire is limited to deciding if the Board of Referees appreciation of facts is reasonably compatible with the evidence before the Board (Le Centre de valorisation des produits marins de Tourelle Inc. (A-547-01), McCarthy (A-600-93), Ash (A-115-94), Ratté (A-255-95) and Peace (A-97-03)).

And, in CUB 43808, Justice Marin wrote:

"The Board is the trier of fact, and an Umpire does not easily trample upon such a finding as it had the best opportunity of observing witnesses, their demeanour and behaviour under questioning."

In the present case, the Board's decision is entirely compatible with the evidence before the Board and with the applicable legislative provisions as interpreted in the jurisprudence. The Commission has not shown that the Board erred in its decision.

Accordingly, the appeal is dismissed.

Guy Goulard

UMPIRE

OTTAWA, Ontario
June 1^st, 2007