CUB 71768

GUY GOULARD, Umpire

The claimant filed an initial claim for employment insurance benefits which was established effective July 30, 2007. The Commission was later informed that during his benefit period, that is from April 6 to April 24, 2007, the claimant had been out of Canada. The Commission determined that the claimant was not entitled to benefits for the period he was out of the country. The Commission also determined that the claimant had not proven his availability for work while he was out of Canada and imposed disentitlements for this period. These decisions resulted in an overpayment of $1,234.00. The Commission further determined that the claimant had knowingly provided false or misleading information in regard to his claim and imposed a penalty in the amount of $454 as well as a notice of violation.

The claimant appealed the Commission's decisions to a Board of Referees which dismissed the appeal. He appealed the Board's decision. This appeal was heard in Vancouver, British Columbia on January 21, 2009. The claimant was present.

Throughout his appeal, the claimant did not contest the issue of the disentitlement imposed pursuant to subsection 37(b) of the Employment Insurance Act for the period he was out of Canada. He contested the disentitlement based on non-availability and the imposition of a penalty and notice of violation as he maintained that he had not knowingly provided false or misleading information in regard to his claim. He stated that he had secured employment prior to leaving Canada on vacation and that he therefore did not have to continue to prove his availability for work.

In his evidence before the Board of Referees, the claimant reiterated that he considered himself available for work as he had accepted a new employment which had taken months of protracted efforts and expenses to obtain. He stated that, even while on holidays, he had attended two trade fares with a mind to find a product he could possibly eventually develop in a business on his own account. He submitted that, as he had only two weeks of benefits left, it would not have been possible to look for a job for such a short period of time.

The Board of Referees' conclusions on the issues of availability and knowingly providing false or misleading declarations read as follows:

"In this case, the claimant admits to being out of the country, on a personal holiday. The Board does not accept the claimant's explanation that he was available while outside of Canada, on holidays, because he had demonstrated his strong wish to return to the workforce by accepting a job which would start on his return from vacation. The claimant was no longer looking for employment having accepted a job offer and while he was on holidays, he was not looking for alternate work, so he was not available within the meaning of the law.

...

The Board finds as fact that the explanations given by the claimant at his appeal hearing do not prove that he did not knowingly make a statement that he knew was false when he filled out his report card. The Teledec Report clearly asks if the claimant was "ready, willing and capable of working each day, Monday through Friday during each week in his report". The claimant clearly did not truthfully answer the question. In the weeks he was away, he could not work because he was on holidays. He therefore, knowingly misrepresented his availability."

On appeal from the Board of Referees' decision, the claimant reiterated that he had considered himself available during his absence from Canada as he has secured employment which was scheduled to start on his return. He added that he has always been straightforward with the Commission and generally in all his actions and would not have knowingly provided false or misleading information to the Commission. He still cannot understand why he would have been required to establish his availability for work when he had accepted employment that was to start in the immediate future.

In this case, the claimant had found employment which was to start in two weeks. The following comments by the Umpire in CUB 14685 would apply to the case at bar: "In the circumstances it was not incumbent on the claimant to go through the form of a futile search for temporary employment for a period of two to three weeks prior to the known date of recall." Although in this case the claimant was not waiting for a recall, he had secured employment after months of efforts. It would have been futile to look for employment for that short period. Even if the Board could find that the claimant had not proven his availability for those two week, that question is moot as the claimant has accepted that he was not entitled to benefits for that period.

The claimant had repeatedly stated that he considered that he did not have to establish his availability for work as he had found employment that was to start in the immediate future and that he had thereby proven his availability. To support a finding that a penalty and a notice of violation are warranted for knowingly giving false or misleading statements, it must be shown that the claimant knew that his declarations were false or misleading. In A-438-02, Justice Linden wrote:

"In order to be subject to a penalty under section 38(1)(a) it is not enough for the representation to be false or misleading; it must be made by the Applicant with the knowledge that it is false or misleading.
... this Court made clear that the knowledge of the Applicant concerning the falsity of the offending statement had to be decided on a subjective basis. In Purcell this Court declared:

The Board must decide on a balance of probabilities that the particular claimant subjectively knew that a false or misleading statement had been made."

In the present case, the claimant had provided an explanation as to why he had indicated he was available for work. The claimant's circumstances and explanations created at least a significant doubt that he had the subjective knowledge required to meet the test for knowingly providing false information.

Accordingly, on the issue of the imposition of a penalty and notice of violation, the appeal is allowed and the Board's decision on this issue is set aside. The Board's decision on the issue of the disentitlement pursuant to section 37(b) is not affected.

Guy Goulard

UMPIRE

OTTAWA, Ontario
January 30, 2009