CUB 72341

GUY GOULARD, Umpire

The claimant filed an initial claim for benefits which was established effective March 4, 2007. The Commission was later informed that during his benefit period, that is from May 13 to June 12, 2007, the claimant had been out of Canada. The Commission determined that the claimant was entitled to benefits for the period from May 13 to May 20, 2007 pursuant to paragraph 55(1)(d) of the Employment Insurance Regulations as he had travelled to another country to visit a member of his family who was ill. The Commission also determined that the claimant was not entitled to benefits for the remainder of the period he was out of the country. The Commission also determined that the claimant had not been available for employment during the period of his absence from Canada and imposed a disentitlement during the period from May 21 to June 12, 2007 pursuant to subsection 18(a) of the Employment Insurance Act. These decisions resulted in an overpayment of $1,350.00.

The claimant appealed the Commission's decisions to a Board of Referees which allowed the appeal. The Commission appealed the Board's decision. This appeal was heard in Kingston, Ontario on April 7, 2009. The claimant was present.

The claimant had explained that he had gone to another country to visit three members of his immediate family who were gravely ill, his father, mother and sister. He also stated that, before leaving for the other country, he had accepted a job at a University which was scheduled to start on July 1, 2007. He submitted that it would not have been realistic to search for employment in his field of research for only one month. He therefore considered that he did not have to establish his availability by looking for other employment.

The claimant appeared before the Board of Referees and stated that he had been a medical doctor in the other country before coming to Canada in 1999. Since then he had worked as a medical researcher. While in the other country visiting gravely ill members of his family, the claimant had continued to search for employment in Canada via the Internet as his contract with the University was only for three months. He added that, at the end of his three month contract, he had been hired on a renewable one-year contract at the University.

The Board of Referees reviewed the evidence and concluded that as the claimant had actively searched for employment while in the other country, he had established his availability for work during his absence. In regard to the disentitlement for being out of the country pursuant to subsection 37(b) of the Employment Insurance Act, the Board found that the claimant was entitled to three successive periods of seven days of exception to the disentitlement pursuant to 55(1)(d) of the Regulations as he had visited three members of his family who were gravely ill. The Board allowed the claimant's appeal.

On appeal from the Board of Referees' decision, the Commission submitted that the Board had exceeded its jurisdiction and had erred in law in deciding that the claimant was entitled to 21 days of benefits while out of the country pursuant to section 55 of the Regulations and in deciding that the claimant had proven his availability for employment during his absence. Counsel for the Commission stated that the fact that the claimant had visited three members of his family who were gravely ill was not contested. On the other hand, the Commission submitted that the purpose of the claimant's trip to the other country was to visit his family members. The Commission submitted that the fact that there were three members of the claimant's family who were ill did not entitle him to benefit from 21 days of entitlement as all family members could be visited during the seven days allowed pursuant to 55(1)(d) of the Regulations. The Commission also submitted that the claimant could not be considered as available for employment while he was in the other country even if he had secured employment prior to leaving and he continued his search for further employment while in the other country.

The claimant reiterated that he had gone to the other country to visit three members of his family who were seriously ill. Given that he was recognized as a doctor in the other country, his presence was important. He also confirmed that he had a job waiting for him upon his return and that he had taken the time prior to the start of his new employment to visit his sick family. He submitted that the Board of Referees' decision was well founded on the evidence.

The Federal Court of Appeal established in Walsh (A-304-07) that it is possible for a claimant to benefit from a combination of exceptions pursuant to subsection 55(1) of the Regulations. The facts in that case were different from those in the case at bar. In Walsh, the claimant had gone abroad to visit her father who was gravely ill. While the claimant was with her father, he passed away. The claimant then stayed to assist with the funeral arrangements. I found that, had the claimant returned to Canada following the death of her father, she could have returned for his funeral and would have been entitled to the exceptions in paragraphs 55(1)(b) and (d) of the Employment Insurance Regulations which provide:

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

b) for a period of not more than seven consecutive days to attend the funeral of a member of the claimant's immediate family or of one of the following persons, namely,
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;

I concluded that the claimant could combine the two exceptions provided in paragraphs 55(1)(b) and (d) of the Regulations. My decision was confirmed by the Federal Court of Appeal.

The facts in the case at bar established that the claimant travelled to the other country to visit three members of his family who were ill at that time. I am of the view that to interpret paragraph 55(1)(d) of the Regulations to mean that the duration of the period a claimant can be absent from the country while receiving benefits can be multiplied by the number of family members the claimant is travelling to visit, would extend beyond what was intended by Parliament. This position was taken by Umpires in CUBs 58260, 62367A and 63157.

I therefore find that the Board of Referees erred in law in deciding that the claimant was entitled to benefits during his absence from Canada beyond the seven days that had been allowed by the Commission. In regard to the issue of the claimant's availability during the period of his absence, he did not have to establish his availability during the seven days he was allowed to travel pursuant to paragraph 55(1)((d) of the Regulations. As I find that he was not entitled to benefits beyond those seven days, the issue of his availability is moot.

The uncontested evidence in this case allows me to enter the decision the Board should have made. Accordingly, I allow the Commission's appeal and rescind the Board of Referees' decision. I note for the purpose of clarity that the claimant was entitled to seven days of benefits during his absence pursuant to paragraph 55(1)(d) of the Regulations.

Guy Goulard

UMPIRE

OTTAWA, Ontario
April 24, 2009