CUB 73880

MAXIMILIEN POLAK, Umpire

This is an appeal by the claimant from a decision of the Board of Referees, which upheld the Commission's determination that it could not pay him employment insurance benefits because his work permit had expired (exhibit 5).

This appeal was heard in Calgary on November 25, 2009. The claimant's representative was present.

In this file, the claimant established an initial claim for employment insurance benefits effective February 22, 2009 (exhibit 2). The claimant is in Canada working under the Foreign Worker program valid until April 30, 2009 and he must leave Canada that date (exhibit 4). A disentitlement was imposed effective April 30, 2009.

The claimant disputes the Commission's decision, stating that he was already accepted by the AINP (Alberta Immigrant Nominee Program) for a change of status (exhibit 6-3).

It is important to quote the following extracts from the decision of the Board of Referees:

"(...) The claimant attended at his Appeal hearing and submitted documentation that showed a medical report from Citizenship and Immigration Canada showing that his application for Canadian citizenship for himself and his family was proceeding.

The claimant related that the application has been in progress for a prolonged period of time and implied that the delay was procedural and not of his own making.

He also produced a firm job offer from an Alberta employer once he is again issued a work permit.

(...) Findings of Fact/ Application of the Law:
In this case the Board finds as a fact that the claimant had entered Canada as a foreign national working on a work permit that expired on April 30, 2009.

In this case the Board finds as a fact that it is a fundamental requirement that the claimant was required to prove that there were no conditions or circumstances that would disentitle or disqualify him from receiving benefits.

In this case the Board finds as a fact that the expiration of the claimant's work permit and the expiration of his Social Insurance Number disentitled him from receiving benefits.

In this case the Board finds as a fact that, although it is sympathetic with the claimant's situation, it has no authority to amend the legislative requirements or to exempt the claimant from the legislative requirements.

Decision:
The claimant's appeal is dismissed."

In support of his appeal, the claimant's representative invoked CUB 44956 in which Umpire W.J. Haddad determined:

"(...) A question arises as to the interpretation and application of section 18. In my view, that section applies to circumstance of unavailability created by a claimant by his absence or by engaging in an activity of his own choosing preventing him from satisfying the onus of proving availability. It is not intended to apply where unavailability is imposed upon a claimant in circumstances beyond his control when the claimant is ready, available and willing to accept employment. The claimant in this case finds himself having to pay insurance premiums pursuant to the provisions of one federal statute and then being informed that he is not entitled to benefits because of a restriction imposed pursuant to another federal statute. In my opinion, section 18 is not applicable in the circumstances under review. The Board of Referees erred in law in its reliance on that section."

On October 8, 2009, the Commission advised the claimant as well as his representative that it had decided, after review of the decision of the Board of Referees, to recommend that the appeal be allowed in this case. This was confirmed by the attorney for the Commission at the hearing.

For these reasons, the appeal of the claimant is allowed.

Maximilien Polak

UMPIRE

Montreal, Quebec
December 31, 2009