CUB 74064

DENIS DUROCHER, Umpire

The Commission appeals the decision of the Board of Referees of December 23, 2008, which reversed the Commission's previous decision denying employment insurance benefits to claimant.

Ms X could not perform the duties of her employment as a factory worker, because of severe pain in her hands, wrists and arms, as attested by her doctor. Surgery was not a good option for her; but a change of employment was. She decided that employment, as "Personal Support Worker" would be suited for her, not requiring physical implication of her hands and arms. Having only factory experience during all her working years, she needed a five months course that was offered, in order to obtain that position. She applied for the course and had to pay the fees before it started.

After an agreement with her employer, she left and immediately applied for benefits and authorization of the course. She was told that she could do so and completed a training course information sheet (exhibits 5-1 to 5-3), as requested. She was not then told that she had to file a request for a course preauthorization, and began the five months course.

In a first decision, the Board of referees examined the question of availability for work, deciding that claimant was available. An error of an employee of the Commission was not a valid base to deprive her of benefits. The Board of Referees believed claimant when she said she was mislead in stating that she would devote her time to courses of instruction rather than finding work. I note that on the same form (exhibit 5-2), she answers that she will accept "clerical work, no typing/repetition" to the question: "What type of work will you accept while attending your course?"

The Board of Referees stated jurisprudence in support of its findings citing "in extenso" CUB 49959 in the matter of the Employment Insurance Act and X, which itself cited relevant jurisprudence.

Its conclusion was to "request the Commission to review the claimant's file in lieu of the information presented at the appeal hearing. The Board of Referees has chosen to allow the claimant's appeal, but only if the course meets the criteria set out by the Commission."

The Commission did review the file and, through additional representations, stated that "claimant had contacted "Return to Work Action Plan" which denied sponsorship. The Commission has no authority on such programs and cannot intervene" (exhibit 13). It requested the Board of Referees to complete its decision on the question at issue e.g. availability to work. Claimant filed a list of jobs which were advertised and which she could not occupy.

The Board of Referees recited more or less the same decision as the previous one, adding clarification remarks, and being satisfied by the answers of claimant. The Board of Referees allowed the claimant's appeal.

The Commission submits in its appeal to the Umpire that there is a presumption that a full-time student is not available for work. But claimant should not have relied on her impressions. While earlier stating she was not available, she said the opposite at Board of Referees' hearings. The Board of Referees should not have believed her as to her availability statements.

The Commission's appeal is dismissed for the following reasons.

The presumption above referred to is one of fact, and therefore can be rebutted. Such presumption is derived from facts. When the facts are in contradiction, the presumption does not follow. And it is up to the decision maker to adjudicate on the question of whether these facts constitute a presumption or not.

However, whether a full-time student is available is a question of fact. The Board of Referees, in this instance, judged that claimant was credible.

An Umpire will not intervene on questions of fact to substitute his view of the facts for those of a Board of Referees, unless the latter are not sustainable on the material before it. This is not the case here, as twice the Board of Referees came to the same appreciation of the facts. I stated earlier that on the form supplied by the Commission (exhibit 5-2) she stated that she would accept clerical work, while attending her courses.

It is not for the Umpire to assess anew the credibility of the claimant, the Board of Referees being in the better position to do so.

And, also, the process at the Umpire's level being of the nature of judicial review, the Umpire is limited to verifying whether the Board of Referees had evidence upon which to decide the way they did. The Umpire may not substitute his own views if the decision is reasonable and based on evidence, even if he would personally find otherwise.

The reasons of the Board of Referees in this matter are based on evidence found in the docket at the hearing and are not inconsistent with the law.

I, therefore, dismiss the Commission's appeal.

Denis Durocher

UMPIRE

Montreal, Quebec
January 22, 2010