CUB 69340

GUY GOULARD, Umpire

The claimant worked for the Ministry of Children and Youth Services until March 10, 2007. She applied for employment insurance benefits and an initial claim was established effective March 12, 2007. The Commission later determined that the claimant had left her employment without just cause and imposed a disentitlement from March 12 to April 27, 2007. The Commission further determined that the claimant was not available for work during the period March 12 to April 27, 2007 as she was attending a course. The Commission imposed a disentitlement for that period pursuant to subsection 18(a) of the Employment Insurance Act.

The claimant appealed the Commission's decisions to a Board of Referees which unanimously allowed the appeal on the issue of just cause for leaving employment but dismissed the appeal on the issue of availability for work. The claimant appealed the Board's decision. This appeal was heard in North Bay, Ontario on September 28, 2007. The claimant was present.

The only issue under appeal was the claimant's availability for work during the period March 12 to April 27, 2007. At exhibits 2-12 and 2-13, the claimant indicated that she was attending a full-time course at the Ontario Correctional Services College which ran from March 12 to April 27, 2007. The classes were given from Monday to Friday form 8:30 am to 4:30 pm. The claimant's intention was to devote her time to her course rather than to find work. She added that the course was an intense seven-week course away from home. It was not that she did not want to work but that she was unable to do so due to her course.

The claimant appeared before the Board of Referees but only addressed the issue of the just cause for leaving her employment. On this issue, the Board accepted the claimant's reasons as constituting just cause for leaving her employment. The Board noted that the claimant had submitted she should be allowed her benefits on a compassionate basis. The Board reviewed the evidence and found that the claimant was not available during the period of her course due to the fact that she could not have worked during this period given the intensity of the course. The Board dismissed the claimant's appeal on the issue of her availability for work.

On appeal of the Board's decision, the claimant stated that she could not understand why the Board found that she had shown just cause in leaving her employment to take a course but that she still could be disentitled during the duration of the course. She submitted that her particular circumstances should have allowed her to be entitled to her benefits during the period of her course.

Subsection 18(a) of the Employment Insurance Act provides:

18.4 Aclaimant is not entitled to be paid benefits for a working day in a benefit period for which the claimant fails to prove that on that day the claimant was

a) capable of and available for work and unable to obtain suitable employment;

It has been well established in the jurisprudence that a presumption arises against a claimant attending a full-time course that he or she is not available for work and that, although this presumption can be rebutted, this should only be in exceptional circumstances (CUBs 40147, 11989, 25153). In this last decision, Associate Chief Justice Jerome wrote:

"In order to rebut the presumption of non-availability in cases of this nature, a claimant must be able to demonstrate, by way of very convincing evidence, that obtaining employment is his principal concern and his interest in the course of instruction is only secondary."

And, 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 acknowledged that she could not be available for work during the period of her course.

The claimant undoubtedly made an excellent personal decision to improve her employment opportunities and be able to move to work closer to her family but, under the provisions of the Act, she was required to prove her availability for work, which she has not done.

I do regret that there is no provision in the Act that would allow me to find some possible interpretation to be of assistance to this claimant. Unfortunately, the clear provision of subsection 18(a) of the Act, as interpreted by the Federal Court of Appeal, leaves me no such discretion. This has been stated very clearly in the case of Earl Ralph Currie, CUB 11077, where Justice Strayer stated:

"It is apparent from the material filed by the claimant and the submissions made by him to me that he regards the Act and the Regulations as unjust and that is why he considers that he has been denied "natural justice". It must be emphasized that the Umpire can only grant relief where some error such as a procedural deficiency can be found in the decision of the Board of Referees. The Umpire cannot correct what are regarded by some as weaknesses or errors or injustices in the legislation adopted by Parliament or the Regulations adopted by the Governor in Council."

An Umpire's jurisdiction is limited by section 115(2) of the Employment Insurance Act. Unless the Board of Referees failed to observe a principle of natural justice, erred in law or based its decision on an erroneous finding of fact made in a perverse manner or without regard for the material before it, an Umpire is required to dismiss an appeal.

In this case the Board of Referees did not so err. It arrived at the only decision it could make, given the evidence and the applicable legislative provisions.

Accordingly, the appeal is dismissed.

Guy Goulard

UMPIRE

OTTAWA, Ontario
October 26, 2007