CUB 71384

GUY GOULARD, Umpire

The claimant filed an initial claim for benefits which was established effective on July 30, 2006. The Commission was later informed that during his benefit period, that is from September 13, 2006 until October 26, 2006, the claimant had been out of Canada. The Commission imposed a disentitlement for the period the claimant had been out of the country. This decision created an overpayment of $2,643.00. The Commission further determined that the claimant had knowingly made false or misleading statements in regard to his claim and imposed a penalty in the amount of $1,322.00 as well as a notice of violation.

The claimant appealed the Commission's decisions to a Board of Referees which allowed the appeal. The Commission appealed the Board's decision on the issue of the disentitlement only. This appeal was heard in Vancouver, British Columbia on October 31, 2008. The claimant was present and represented by a representative.

In his appeal to the Board of Referees, the claimant did not contest having been out of the country for the period stated above. He explained that he had travelled to London, England to pursue employment opportunities. He had been informed in regard to a franchise opportunity that he hoped he could bring back to Canada. While in England, he had continued to look for employment in Canada via the internet. He was able to find employment in Canada and came back to Canada on October 26, 2007 for a job interview. He obtained that employment and started working on November 6, 2007.

In his Notice of Appeal to the Board of Referees, the claimant added that while he was in England, his father became ill and he delayed his return to Canada to care for his father.

The claimant appeared before the Board of Referees with his representative. He filed documents describing a franchise opportunity he had looked into. He also filed a medical report indicating that his father had been ill in June 2007. This did not indicate what the claimant's father's condition would have been in September and October 2007. At the hearing, the claimant reiterated that he had gone to England to look into employment opportunities. He indicated that, while he was in England, his father had become ill and had been hospitalized with a stroke. He indicated that he had decided to stay and assist with his father's serious medical situation. In the Board's decision it is stated that the medical report filed (exhibit 11-1) indicated that the claimant's father was still hospitalized and that matters had been complicated by issues of cancer. That medical certificate relates only to the claimant's father's condition in June 2007 and has no mention of any issues with cancer. I do not understand how the Board could arrive at this conclusion. There is no evidence in the appeal file as to the nature of the claimant's father's illness and medical condition in September and October 2007.

The Board of Referees reviewed the evidence and concluded that the claimant was entitled to his employment insurance benefits during his absence from Canada pursuant to paragraphs 55(1)(d) and (f) of the Employment Insurance Regulations. The Board allowed the claimant's appeal.

On appeal from the Board of Referees' decision, the Commission submitted that the Board erred in law and in fact when it allowed the claimant's appeal. The Commission submitted that, even if the claimant was found to have been able to benefit from paragraphs 55(1)(d) and (f) of the Regulations, this would have entitled him to only 21 days of benefits. Counsel for the Commission conceded that the claimant could be entitled to 14 days of benefits to conduct a bona fide job search pursuant to paragraph 55(1)(f) of the Employment Insurance Regulations. He submitted that the claimant could not benefit from a second exception pursuant to subsection 55(1) of the Regulations. The Commission noted that there was no relationship between paragraphs 55(1)(d) and (f) of the Regulations.

The claimant's representative acknowledged that the claimant could not be entitled to more than 21 days of benefits specified in paragraphs 55(1)(d) and (f) of the Employment Insurance Regulations. He submitted that the claimant should be entitled to 21 days of benefits pursuant to paragraphs 55(1)(d) and (f) of the Regulations as he was in England to look for employment and extended his trip due to his father's illness.

Paragraphs 55(1)(d) and (f) of the Employment Insurance Regulations read as follows:

55.(1) Subject to section 18 of the Act, a claimant is not disentitled from receiving benefits for the reason that the claimant is outside Canada

d) for a period of not more than seven consecutive days to visit a member of the claimant's immediate family who is seriously ill or injured;
f) for a period of not more than 14 consecutive days to conduct a bona fide job search.

It has been determined in various cases that a claimant cannot benefit from two different exclusions pursuant to section 55 of the Regulations for the same factual situation (CUBs 58260, 62367A and 63157). In CUB 63157, Justice Marin wrote:

"The claimant had the right to leave the country for seven consecutive days pursuant to section 55(1)(d) of the Regulations; unfortunately, he could not take an additional seven days of leave without interruption. In the claimant's view, the law is unreasonable. It is not my duty to comment on the law: it is my duty to apply it.

t is clear that the law is reflected in CUB 58260 in which Haddad J., as Umpire, stated the following:

The legislation does not permit combining the two reasons to permit entitlement for an additional seven days. The exemptions are not conjoined with the word "and". They are separated by the word "or"."

Although in CUB 68174 I decided that the claimant could combine two exceptions pursuant to subsection 55(1) of the Regulations, this was based on the particular circumstances of the case where the claimant had travelled out of the country to visit her gravely ill father and, while she was out of Canada, her father died and she extended her stay to attend the funeral. I found that the two exceptions in that case were related and that the claimant should be entitled to both of them. In the case at bar, the claimant travelled to England to look for employment opportunities. He came back when he had confirmed a job interview in Canada. The purpose of his trip was not to visit his ill father. Furthermore, he did not provide any evidence to confirm that his father was gravely ill at the relevant time.

I therefore find that the Board of Referees erred in law and in fact in deciding that the claimant was entitled to benefits during the entire period of his absence from Canada.

Accordingly, the appeal is allowed. The Board of Referees' decision is set aside. The uncontested facts in this case allow me to enter the decision the Board should have entered.

The claimant's appeal from the Commission's decision is allowed to the extent that he is entitled to 14 days of benefits pursuant to paragraph 55(1)(f) of the Employment Insurance Regulations. The Commission's decision is otherwise confirmed.

Guy Goulard

UMPIRE

OTTAWA, Ontario
November 14, 2008