CUB 72640

R. C. STEVENSON, UMPIRE:

The claimant appeals from the decision of a Board of Referees dismissing her appeal from a Commission ruling that it could not pay her benefits from December 21, 2007 to January 15, 2008 because she was not in Canada.

The claimant had applied for benefits in May 2007 and a benefit period had been established. Her father died in Sierra Leone, her native country. Being a Muslim he was buried the same day. As a result of friends' generosity the claimant was able to travel to Sierra Leone and mourn with her family, albeit after the burial had taken place. She had been informed of possible employment opportunities in Sierra Leone and while she was there attended two interviews and met with a company that had previously employed her.

Section 37 of the Employment Insurance Act provides that except as may otherwise be prescribed, a claimant is not entitled to receive benefits for any period during which she is not in Canada. The prescribed exceptions are found in subsection 55(1) of the Employment Insurance Regulations, the relevant portions of which are as follows:

... 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 ...

(e) for a period of not more than seven consecutive days to attend a bona fide job interview;

(f) for a period of not more than 14 days to conduct a bona fide job search.

The claimant left Canada on December 14, 2007 and returned on January 15, 2008. Although she could not have arrived in Sierra Leone in time for her father's funeral the Commission did not disentitle her from receiving benefits for the first seven days of her absence, i.e. from December 14 to 20.

The Board of Referees said the claimant told them that she attended two interviews with a bank on December 28 and January 9 and attended a meeting with a former employer. She had worked in Sierra Leone on a three month contract in 2004.

The Board of Referees said:

Although the claimant did attend a job interview while out of the country and 2 meetings with a former employer the Board finds these were not "bona fide" job searches under section 55(e) and (f) of the Regulations. They were opportunities but not the reasons for the trip.

The claimant has submitted additional evidence in support of her appeal. A letter from her husband says, in part:

Prior to her departure we talked about the strong possibility of us re-locating back to Sierra Leone if any of the job interviews proved successful. Claimant and I worked in Sierra Leone but had to leave when the country was plunged into a full blown civil war. Both of us would have gladly embraced the opportunity to go back and work in Sierra Leone. For the claimant it would have been employment associated with Environmental Sciences and for me, community development.

A friend writes:

She has a contact in Sierra Leone who has been sending her information on job postings in Sierra Leone. I am very aware that she applied for a couple of positions in Sierra Leone and was invited for job interviews. Her major issue was the cost to go for the interviews was too much for her but when her dad past [sic] away many people made financial contributions to her which she used to the [sic] Sierra Leone.

In a written submission the claimant says:

Before I left for Sierra Leone, I was aware of two job postings and had applied for them. My problem was since I was not working, I could not afford to travel but the contribution that I received from friends when my dad past [sic] away made it possible for me to travel. I attended two job interviews; on December 28^th 2007 and January 9^th 2008. I waited for responses from the job interviews for another week. The interview that I had on December 28^th 2007 was with the Executive Director of CADEM, an environmental NGO that received funding from a Bank for an environmental program.

The Executive Director of CADEM has written a letter confirming that the claimant was interviewed for a position as Environmental Assessment Coordinator.

The evidence establishes that the claimant attended job interviews. It does not clearly establish that she was conducting a job search. The distinction may be a fine one but the interviews were for a position she was aware of before she left Canada.

The issue is not whether the interviews were the sole reason for the claimant's trip. The issue is whether she attended a bona fide job interview. That is a question of fact. The standard of review I must apply to the decision of the Board of Referees is that of reasonableness.

Having regard to all of the evidence I conclude that the Board's finding that the claimant's attendance at the interview was not bona fide was not reasonable.

The appeal is allowed and the decision of the Board of Referees is rescinded so as to allow the claimant's appeal from the disentitlement ruling for an additional seven days. The overpayment of benefits assessed against the claimant will be adjusted accordingly.

Ronald C. Stevenson

Umpire

FREDERICTON, NEW BRUNSWICK
June 10, 2009