CUB 72689

GUY GOULARD, Umpire

The claimant applied for employment insurance benefits on October 5, 2007 and an initial claim was established effective September 30, 2007. The claimant requested an antedate of his claim to July 2, 2007. He submitted a second application for benefits on January 3, 2008 and again requested to have his claimant's reports antedated to July 2, 2007. The Commission refused the requests to antedate the claim because the claimant had not shown good cause for his delay in applying for benefits. The Commission also determined that the claimant had not established his availability for work and imposed an indefinite disentitlement effective September 30, 2007.

The claimant appealed the Commission's decision to a Board of Referees which allowed the appeal to the extent of backdating the claimant's reports to September 30, 2007 and dismissed the appeal on the issue of backdating the claim to July 2, 2007 and on the issue of availability. The claimant appealed the Board's decision. This appeal was heard in London, Ontario on June 2, 2009. The claimant was present and represented.

There were three issues before the Board of Referees.

The first issue was in regard to the claimant's request for an antedate of his application submitted on October 5, 2007 to July 2, 2007. The reasons given by the claimant for not applying for benefits before October 2007 was that he was waiting for his record of employment and believed he would soon be starting a new job in Colorado. Both these reasons have been found not to constitute good cause for a delay in submitting an application for benefits (CUBs 17905, 17191 and 57707 on the issue of the lack of a record of employment and CUBs 14150, 24154 and 47921 on the issue of hoping to obtain employment). I therefore find that the Board's decision on this issue is well founded on the evidence and on the jurisprudence.

The second issue concerned the claimant's request to antedate his reports on the claim he had established September 30, 2007. The Board allowed the claimant's appeal to the extent of backdating his reports to September 30, 2007. The Commission did not appeal the Board's decision on that issue.

In regard to the last issue before the Board, whether the claimant established his availability for employment, I find that the Board erred in law in arriving at its decision. The Board appears to have found that, in order to establish that he had secured employment, the claimant had to provide a signed contract. There is no such requirement under the Employment Insurance Act or in the jurisprudence. The test established by the Federal Court of Appeal in Faucher (A-56-96) is that a claimant must show that he had a desire to return to work as soon as a suitable job is available, he must express that desire through efforts to find a suitable job and he must not set personal conditions that might unduly limit his chances of returning to the labour market.

In this case, the claimant established that he had secured employment. Even if he did not have a signed contract, he provided a letter from his prospective employer stating what his position would be and the salary he would be making. The letter (exhibit 19-1 to 3) stated: "We require the services of ..." [the claimant] and went on to indicate that they anticipated requiring his services for a one-year period. Had the claimant not encountered problems in entering the United States, he would have been able to start his employment. The Board found that the claimant had placed undue limits on his opportunities to work. The reason the claimant was unable to travel to start working was totally beyond his control as was well established in the evidence. I am satisfied that the claimant did all he could to resolve his problem as stated in exhibit 7-2. This is also confirmed in two letters from the Police who felt the claimant should never have been put in the position he was. The claimant had even taken training he required for his new position. This training however would not have helped him find employment in the area where he lived. The claimant pointed out that his employability was restricted due to a previous injury. He had also explained that any employment he could have considered would have been temporary given the fact that he had found employment in his field and for which he had trained. The Board of Referees failed to take all of this evidence into consideration. In CUB 3863, Justice Collier stated that, in that case, it would have been a complete retreat from common-sense to suggest that the claimant be required to look for employment out of the field she had been trained and had worked in for several years while she waited to resume her work as a supply teacher. In CUB 28027, Justice Noël stated that it was the prudent thing to do for a claimant not to accept a temporary position for which he was not fully trained and which could jeopardize his return to another seasonal position. Justice Noël found that the claimant had shown good cause for not availing himself of the offered job opportunity in his circumstances.

Furthermore, the claimant's situation is analogous to one where a claimant is awaiting a recall. The claimant had worked for the same employer previously and had been offered employment again. The jurisprudence has established that a claimant waiting to be recalled to his employment is excused, at least for a reasonable period of time, from having to show an active job search (CUBs 1804, 14685, 14685 and 23283 as well as Charpentier (A-474-97). In CUB 14685, Justice Strayer wrote:

"It appears to me that the Board has proceeded on an erroneous interpretation of the law with respect to availability. The narrow issue before it was whether, between August 23rd and September 14th, (the claimant had stated, according to Exhibit 6), he would have accepted a temporary job if one had been offered to him. The Board seems to have interpreted section 25 of the Unemployment Insurance Act to mean that no matter what the circumstances a claimant must be searching for work. I accept instead, with respect, the statement of Mahoney J. in CUB 5085 which involved a claimant who was laid off with the "promise of early recall" but with no date fixed for recall. The Commission disentitled him effective the Monday after the Friday of his lay-off. Mahoney J. stated:

In my view, a person laid off in circumstances such as the Claimant is entitled, for a reasonable period thereafter, to look upon the promised recall as his most probable avenue to suitable employment and to act accordingly.

In other words, the test for availability and inability to obtain suitable employment are objective tests having regard to the circumstances. The Board seems to have considered them automatically to require a job search regardless of the imminence of the known date of recall."

The jurisprudence has also established that the Commission must give notice to a claimant that he must enlarge his job search (CUBs 14708, 15389, 16823 and 18846). In CUB 15389, Justice Teitelbaum wrote:

"In CUB 14708 the Chief Umpire stated at page 7:

Fair treatment required she be given both a warning and a reasonable opportunity to establish her availability either by an adequate job search or by obtaining a Commission referral.

In CUB 12842 Mr. Justice Cullen restated the principle that a claimant should receive notice of and be given an opportunity to correct an existing situation:

First, it is not proper to disqualify the claimant for these reasons without first warning her that too restrictive a search may affect her right to benefits. If there is a problem with her claim, surely the claimant has a right to be the first to know.

At any rate, a claimant should be given an opportunity to correct these things before he/she is simply cut off.

I agree with this principle. In the instant case the claimant was not warned and was not given a reasonable period to find himself another type of work. He was declared to be disentitled from the first day on which he would normally have been entitled to receive benefits. There was accordingly an error of law here."

I therefore find that the Board made several errors in law in arriving at its conclusion that the claimant had not established his availability for employment. I find that, taking all of the claimant's circumstances into consideration, he has established his availability for employment pursuant to the Employment Insurance Act as interpreted in the jurisprudence.

Accordingly, the claimant's appeal is allowed on the issue of availability and dismissed on the issue of the antedate request to July 2, 2007. As the Commission did not appeal the Board's decision in regard to the antedate of the claimant's reports to September 30, 2007, that decision is not affected.

Guy Goulard

UMPIRE

OTTAWA, Ontario
June 23, 2009