CUB 73932

LOUIS de BLOIS, Umpire

The claimant is appealing from the unanimous decision of the Board of Referees to uphold the disentitlement imposed on him by the Commission under section 18(a) of the Employment Insurance Act (the Act) because he failed to prove that he was available for work while taking a training course.

The relevant facts of this case are summarized below.

The claimant had a claim for Employment Insurance benefits established effective November 9, 2008.

The Commission provided background from the claimant's Employment Insurance file. In November 2007, the Commission established a claim for regular Employment Insurance benefits, and the claimant received benefits from November 25, 2007 to November 8, 2008; 32 weeks of benefits were paid.

The claimant worked for his usual employer from April 6, 2008 to August 1, 2008. After that, he made a personal choice to undertake a training course beginning on August 6, 2008 and ending on November 15, 2009. His course was given from Monday to Friday, in the mornings and afternoons.

He could not change his course schedule; he had to follow that exact schedule, which took 35 hours a week.

The evidence in the docket shows that, in August 2008, the claimant asked Emploi-Québec for authorization to take the welding course in question, but his request was denied. He confirmed that he was able to work only part time because of his course schedule. However, he has no history of working and going to school at the same time. He added that he conducted three job searches in November 2008 but that he could conduct more searches if necessary in order to collect Employment Insurance.

On December 23, 2008, the Commission informed the claimant that it imposed an indefinite disentitlement on him as of November 10, 2008 because, according to the evidence in the docket, he was taking a training course on his own initiative and it could not consider him to be available for work.

On January 9, 2009, the Commission was informed that Emploi-Québec referred the claimant to an employment program, namely, a welding training course.

Emploi-Québec authorized the training course as of January 4, 2009 only, and that authorization cannot be retroactive to August 2008.

The Commission determined that the claimant failed to prove his availability for work while taking the above-mentioned course because it was a full-time course and because the claimant was not authorized by Emploi-Québec to take the course until January 4, 2009; the Board of Referees upheld that decision by the Commission.

The issue is whether someone who takes a full-time course is available for work. That is a question of fact that must be analysed in light of the specific circumstances of each case.

There is a presumption that a claimant is not available for work when he or she takes a full-time training course on his or her own initiative, when the course has not been approved by the Commission or a provincial authority designated by the Commission.

The Board of Referees analysed the claimant's appeal in accordance with the provisions of section 18 of the Act, whereby a claimant is not entitled to be paid benefits for a working day in a benefit period for which the claimant fails to prove that, on that day, he or she was capable of and available for work and unable to obtain suitable employment.

The Board of Referees correctly based its decision on CUB 69249, in which Goulard J. made the following statement:

It has been well established in the jurisprudence that a presumption arises against a claimant attending a full-time course that he or she is not available for work and that, although this presumption can be rebutted, this should only be in exceptional circumstances (CUBs 40147, 11989, 25153). In this last decision, Associate Chief Justice Jerome wrote:

"In order to rebut the presumption of non-availability in cases of this nature, a claimant must be able to demonstrate, by way of very convincing evidence, that obtaining employment is his principal concern and his interest in the course of instruction is only secondary."

When asked about this aspect, the claimant acknowledged that he completed three job applications in November 2008 and that he would have completed more if he had been informed that he had to do so in order to collect Employment Insurance benefits.

In the decision in CUB 63479, Goulard J. decided that ignorance of the law does not excuse a person from failing to comply with it.

The Board of Referees correctly referred to the decision given by Dubé J. in CUB 15439, in which he concisely summarizes the three basic principles that apply to the issue of the right of a full-time student to collect Employment Insurance benefits. He wrote as follows:

Normally, registration in a full-time course of study has the effect of disqualifying a claimant from receiving benefits since his availability for work is then in doubt (CUB 9903). To prove that he is entitled to benefits in this situation, a claimant must show that in the past he established a pattern in which he worked regularly while continuing to study (CUBs 9903, 10435 and 11146). The Unemployment Insurance Act, 1971 is not in principle responsible for subsidizing claimants' studies, except in the cases prescribed in section 39, when the Commission refers them to certain training courses.

The issue of availability for work when a claimant is taking a full-time training course has been the subject of ample case law in recent years. Availability must be demonstrated for the regular hours of every working day and cannot be restricted to the irregular hours that result from the training schedule and that significantly limit the claimant's availability. The onus is on the claimant to prove his or her availability.

A claimant's decision to take a training course rather than seek employment may be an excellent decision from a personal point of view but does not exempt the claimant from the obligation to prove his or her availability (Martel, A-1691-92).

In this case, the claimant set conditions limiting his availability to periods when he was not in class, that is, evenings and weekends. A claimant's availability is a mixed question of fact and of law based on the evidence in the docket. The evidence in this case justifies the decisions of both the Commission and the Board of Referees, and in no way warrants the Umpire's intervention.

For these reasons, the appeal is dismissed.

Louis de Blois

UMPIRE

Quebec City, Quebec
January 15, 2010