CUB 68578

GUY GOULARD, Umpire

The claimant filed an initial claim for benefits effective January 9, 2006. She submitted two Records of Employment, which showed that she worked for Nadeau Ferme Avicole Ltée from June 6, 2005 to September 2, 2005 and from December 27, 2005 to January 6, 2006, and that she accumulated 571 hours of insurable employment during the first employment period and 69 hours during the second employment period. The Commission found that the claimant voluntarily left her employment without just cause on September 2, 2005 to go back to school. The Commission imposed an indefinite disqualification, effective January 9, 2006, under sections 29 and 30 of the Employment Insurance Act. The Commission found that, after voluntarily leaving her employment without just cause, the claimant did not accumulate the number of hours of insurable employment required to have a benefit period established. The claimant accumulated only 69 hours of employment, but required 630 hours in order to be eligible to receive benefits. Finally, the Commission found that the claimant did not show that she was available for work within the meaning of section 18(a) of the Act because she was taking courses at the Université de Moncton. The Commission therefore imposed an indefinite disentitlement effective January 9, 2005 to April 30, 2006.

The claimant appealed from the Commission's decisions to a Board of Referees, which allowed the appeal on the issues of voluntary leaving and hours of employment for the establishment of a benefit period but dismissed the appeal on the issue of availability for work. The claimant appealed from the Board's decision to an Umpire, and the hearing took place in Edmundston, New Brunswick, on June 12, 2007. The claimant attended the hearing.

On a questionnaire about her training program (Exhibits 2-15 to 2-17), the claimant indicated that she was taking a training course in multidisciplinary sciences at the Université de Moncton. Her courses were held on Mondays, Tuesdays, Thursdays and Fridays at various times. The claimant indicated that she intended to look for a full-time job rather than continue her studies. She added that during the previous twelve months she had worked and gone to school. She also provided a list of employers from which she had sought employment. The claimant indicated that she was available for work within the meaning of the Act.

In Exhibit 9-3, the claimant reiterated that she was available for work and provided another list of employers from which she had sought employment. The claimant added that she was prepared to leave her courses if she found a good job, and reiterated that she had worked and gone to school before.

The claimant attended the hearing before the Board of Referees, which reviewed the evidence and stated, among other things, that:

The claimant is challenging the Commission's decision. She confirms that she is currently studying, but that she is continuing looking for employment, in which she has not yet been successful. She contends that should she find a good job, she would be willing to devote herself entirely to it. She says that she could also have a job while studying, just as she had done previously. From 1992 to 1995, she worked 20-25 hours a week, and from 2002 to 2004, she worked 15-20 hours a week all the while taking classes.

The Board dismissed the claimant's appeal on the issue of availability for the following reason:

Regarding the third issue under appeal, availability, the Board of Referees finds that the claimant failed to prove her availability for work while taking a training course.

In her appeal, the claimant submitted that the Board ignored the evidence and submissions she provided to the effect that she had always been available for work and that she had been actively looking for a job, but that she had been unsuccessful. She stated that she explained to the Board that she had a work-study history and that she was prepared to drop her courses if she found a good job.

The issue of a claimant's availability when taking training courses full time has been the subject of numerous decisions over the years. The following principles emerge from the case law:

• A claimant's taking full-time courses creates the presumption that the claimant is not available for work and that presumption, in certain exceptional cases, may be eliminated when a claimant brings convincing evidence to the contrary (Laurie Martel (A-1691-92), Faucher (A-56-96), Poirier (A-57-96), CUB 44426, CUB 52783, CUB 52807).
• It is up to the claimant to show convincing evidence of availability within the meaning of the Act. That may be based on a history of work while taking a training course, a serious job search and a willingness to accept any suitable job available (Landry (A-719-91), CUB 18481, CUB 18897, CUB 46198).

In this case, the claimant indicated on more than one occasion that she was available for work and that she intended to find permanent full-time work rather than continue her studies. The claimant had a work-study history and provided lists of employers from which she had sought employment. The claimant also indicated that she was prepared to leave her courses to accept a good job. The Board of Referees even stated this evidence, but then seemed to completely dismiss it without explaining why it did so.

I am of the opinion that the Board erred in fact and in law when rendering its decision. The claimant submitted evidence that showed that she was available for work within the meaning of the Act, as consistently interpreted in the case law.

Consequently, the claimant's appeal is allowed and the Board of Referees' decision on the issue of availability for work is rescinded.

Guy Goulard

UMPIRE

OTTAWA, Ontario
June 28, 2007