CUB 74009

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 the claimant employment insurance benefits from February 10, 2008 to September 10, 2008 because he was not in Canada. The claimant also failed to prove his availability for work (exhibit 4).

This appeal was heard in Toronto on December 18, 2009. In view of the absence of the claimant, this appeal is decided on the basis of the record.

In this case, the claimant filed an initial claim for employment insurance benefits on September 24, 2008 (exhibit 2-1). He worked for his last employer until February 7, 2008 when he was laid off. From February 10, 2008 to September 10, 2008 he went to Ghana to care for his ill father (exhibit 3).

The Commission imposed a disentitlement for the duration of his absence from Canada. The Commission imposed a disentitlement for the same period from February 10, 2008 to September 10, 2008 because the claimant had not proven his availability for work.

The claimant disputes the decisions of the Commission. He states that he went to Ghana to fulfil his customary obligations to his father. He continued job searches on the Internet and was available for work (exhibit 5-1).

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

"(...) As per section 55 of the Regulations subject to section 18 of the Act, a claimant is not disentitled from receiving benefits for the reason that the claimant is outside Canada 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.

The claimant was outside of Canada from February 10, 2008 to September 10, 2008, to visit his ill father. As a result, the Commission determined that the claimant's absence for the first seven days did fall under an exception listed in Section 55 of the Regulations and respectfully recommends that the BOR allow benefits for the first seven days of the claimant's absence, modifying the definite disentitlement to February 18, 2008 to September 10, 2008.

(...) Issue 2 Availability for Work

The Commission reviewed the facts and determined that the claimant had not proven that he was available for work because he was absent from Canada and his home area and therefore, could not prove his availability for work.

There is no exemption from the requirement of proving availability when a claimant goes away to be near a sick relative. Nevertheless, on the passive sense, availability can be accepted as proven where such an absence is for one week or less. Thus, if it is clear that the claimant has made arrangements to be reached without delay in the event of an employment opportunity and is ready to return home within the next 24 hours or at the most 48 hours, availability will be considered proven. Beyond that seven-day period the claimant becomes subject to a disentitlement as of the eight day of the absence.

(...) The Board of Referees concludes that ...

The only prescribed exceptions to the disentitlement pursuant to subsection 37(b) are contained in section 55 of the EI Regulations. The claimant's situation was only covered in paragraph 55(1)(d) of the EI Regulations which provides that the disentitlement pursuant to subsection 37(b) of the Act does not apply 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. The claimant was outside of Canada from February 10, 2008 to September 10, 2008, to visit his ill father. The claimant's absence for the first seven days did fall under an exception listed in Section 55 of the Regulations therefore this benefit period is allowed for the seven days modifying the definite disentitlement to February 18, 2008 to September 10, 2008 (Exhibit 6.2). He is not covered by any other of the exceptions provided in section 55 of the Regulations.

The claimant may have continued to look for work while he was outside of the country, but as Umpire Stevenson states in CUB 70462, the claimant did not travel to Ghana to conduct a bona fide job search there and so the claimant cannot be exempted from disentitlement for this reason.

DECISION
Issue 1: The Board of Referees unanimously dismisses this appeal with modification.

Issue 2: The Board of Referees unanimously dismisses this appeal."

I agree with the decision of the Board of Referees, which is a detailed analysis of the facts and the law in this case. There will be a minor modification in that, I accept the recommendation of the Commission that the Board of Referees allow benefits for the first seven days of the claimant's absence, modifying the definite disentitlement for not being available for work from February 18, 2008 to September 10, 2008 (exhibit 6-4).

The jurisprudence in this matter is quite clear.

For purposes of assisting the claimant to better understand the law, I quote Umpire Goulard in CUB 63362A when he states:

"(...) Subsection 37(b) of the Employment Insurance Act provides:

37. Except as may otherwise be prescribed, a claimant is not entitled to receive benefit for any period during which the claimant

(b) is not in Canada

The only prescribed exceptions to the disentitlement pursuant to subsection 37(b) are contained in section 55 of the Employment Insurance Regulations. The claimant's situation was only covered in paragraph 55(1)(d) of the Employment Insurance Regulations which provides that the disentitlement pursuant to subsection 37(b) of the Act does not apply for a period of no more than seven consecutive days to visit a member of the claimant's immediate family who is seriously ill. He was not covered by any other of the exceptions provided in section 55 of the Regulations. The Board, therefore did not err in confirming the Commission's decision in regard to the disentitlement."

As far as availability is concerned the Federal Court of Appeal in Cornelissen-O'Neill (A-652-93) held that the burden is on the claimant to prove availability and this is a statutory requirement of the legislation that cannot be ignored.

I agree with the representations of the Commission to the Board of Referees when it states that the claimant did not travel to Ghana to conduct a bona fide job search there. He cannot be exempted from disentitlement for that reason (exhibit 6-5).

Accordingly, I conclude that the Board of Referees did not err in fact or in law.

For these reasons, the appeal of the claimant is dismissed with the modification that the disentitlement for not being available for work shall be for the period of February 18, 2008 to September 10, 2008.

Maximilien Polak

UMPIRE

Montreal, Quebec
February 5, 2010