CUB 74837B

MARIE-JOSÉE BÉDARD, Umpire

Background

C.D. (the claimant) appeals from the decision rendered by the Board of Referees on September 25, 2009.

The claimant did not attend the hearing even though she received the notice of hearing and she had notified counsel for the Canada Employment Insurance Commission (the Commission) that she would be attending the hearing.

The decision at hand is therefore rendered in light of the docket, the claimant’s written arguments, and the arguments submitted by the Commission at the hearing.

The claimant worked full time for the company EPR Experts-Comptables. When her employment ended, she filed an initial claim for Employment Insurance benefits effective May 18, 2008.

Commission’s decision

It was determined that the claimant was disentitled from receiving benefits under sections 9 and 11 of the Employment Insurance Act, S.C., 1996, c. 23 (EI Act) and section 31 of the Employment Insurance Regulations, SOR-96-332 (the Regulations) because she did not show that she was unemployed since she was working full working weeks. It was also determined that she was disentitled pursuant to section 18 of the EI Act because she did not prove her availability. The claimant appealed from this decision to a Board of Referees.

Board of Referees’ decision

In its decision of September 25, 2009, the Board of Referees dismissed the claimant’s appeal because the claimant was not able to show that she was unemployed and that she was available within the meaning of the Act and the Regulations.

Regarding the issue of whether the claimant was unemployed, the Board of Referees accepted that the claimant signed an agreement with her father to do an internship at his company starting on April 20, 2009. She and her father agreed that she would be working during business hours. She was at the office between 30 and 40 hours a week during regular office hours. The Board of Referees determined that this clearly constitutes a full working week, even though she was not paid. The work was not just incidental because the claimant had a work contract. In addition, this was a structured and official internship. Since the internship was carried out during business hours, the claimant could not reasonably take on another full-time job.

Regarding the issue of the claimant’s availability, the Board noted that the claimant’s testimony was vague in a number of areas and that the claimant was clearly trying to avoid incriminating herself. The claimant acknowledged that she did not actively look for work after being informed that she was entitled to benefits and that she apparently only started looking for work after the Commission asked her about her unemployment status and her availability. This job search was allegedly carried out after working hours. The Board of Referees stated that it could not set aside the claimant’s statement according to which she could not work 35 hours in her father’s company and work full time somewhere else. For these reasons, it was determined that the claimant did not show that she was available.

Issue

The claimant’s allegations as stated in her appeal from the decision raise the following issue:

Did the Board of Referees err in dismissing the appeal and in upholding the claimant’s disentitlement?

The claimant’s allegations

The claimant argues that the Board of Referees erred in dismissing the appeal regarding her lack of availability. She argued that this matter had already been settled and that the only issue on which the Board should have ruled was whether she was in fact unemployed within the meaning of the EI Act.

She also alleges that the Board of Referees should have applied section 31(2) of the EI Act instead of section 30, since section 30 applies to self-employed workers and she said that she was not a self-employed worker.

Applicable standard of review

The claimant alleges that the Board of Referees did not apply the correct legal test and the correct section of the Act in its decision. This is a question of law and the decision should be reviewed according to the standard of correctness (Martens v. Canada (Attorney General), 2008 FCA 240 (available on CanLII)).

Analysis

The claimant’s unemployment status and lack of availability

Under sections 9 and 11 of the EI Act, benefits are payable to an insured person who files an initial claim for benefits for each week of unemployment within a benefit period. Under section 11(1) of the EI Act, a period of unemployment is defined as a period during which a claimant does not work.

9. When an insured person who qualifies under section 7 or 7.1 makes an initial claim for benefits, a benefit period shall be established and, once it is established, benefits are payable to the person in accordance with this Part for each week of unemployment that falls in the benefit period.

...

11. (1) A week of unemployment for a claimant is a week in which the claimant does not work a full working week.

Under section 18(a) of the EI Act, a person who makes a claim for benefits is determined to be disentitled if the person does not show his or her availability by meeting the following requirements:

18. 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 the claimant was

(a) capable of and available for work and unable to obtain suitable employment;

(b) unable to work because of a prescribed illness, injury or quarantine, and that the claimant would otherwise be available for work; or

(c) engaged in jury service.

The claimant alleges that the Board of Referees erred by dealing with the two issues and also by dismissing her claim regarding her lack of availability. According to the claimant, the decision should only have dealt with her unemployment status because the other issue had already been settled.

In Charbonneau v. Canada (Attorney General), 2004 FCA 61 at paragraphs 9 and 10, 132 A.C.W.S. (3d) 70, the Federal Court of Appeal has determined that a claimant’s unemployment status is established by taking into account several criteria, namely the time factor and the claimant’s intention and willingness to seek and immediately accept alternate employment.

[9] Allow me to add, however, that not very far behind the time factor, in terms of importance, is the factor of the claimant’s intention and willingness to seek and immediately accept alternate employment. As Marceau J.A. pointed out in Jouan [22 D.L.R. (4th) 347 at paragraph 9, 52 A.C.W.S. (3d) 1412] The Act is designed to provide temporary benefits to those who are unemployed and actively seeking other work... A claimant will not be considered unemployed if, all the while he is receiving payments, he merely says he is available to work and does not undertake serious, real steps to find work for himself.

[10] In conclusion, if it is true to say that all the factors listed in subsection 30(3) of the Employment Insurance Regulations must be taken into consideration, the fact is that the time factor (paragraph (a)) and the intention and willingness factor (paragraph (f)) are of utmost importance. A claimant who does not have the time to work or who is not actively seeking work should not benefit from the Employment Insurance system.

In its decision, the Board of Referees took into consideration all of these factors and determined, as follows, that the claimant did not show that she was unemployed:

[Translation]
In terms of her unemployment status, the Board of Referees accepts that the claimant made arrangements with her father to do an internship at his company starting on April 29 [sic], 2009.

...

By doing a job or an internship or by working for more than 30 hours a week, the claimant was clearly working a full working week, even though she was not paid.

The Board of Referees also dealt with the issue of the claimant’s availability. In Faucher v. Canada (Canada Employment Insurance Commission), 147 D.L.R. (4th) 574 at paragraph 3, 71 A.C.W.S. (3d) 407, the Federal Court of Appeal determined that availability should be considered on the basis of three criteria: the desire to return to the labour market as soon as a suitable employment is offered, the expression of that desire through genuine efforts, and not setting personal conditions that might unduly limit the chances of returning to the labour market. The decision would seem to indicate that the Board of Referees considered these factors. However, as indicated below, the Board found that the claimant was not able to prove her availability:

[Translation]
Consequently, for the reasons cited above, the Board of Referees finds that the claimant did not prove her availability.

It appears from the Board of Referees’ decision that the Board dealt with the issues of the claimant’s unemployment status and her availability. The Board was correct in dealing with these two issues in its decision. It should be noted that the Commission had sent the claimant two different letters dated August 19, 2009. The first letter established the claimant’s disentitlement because she did not prove her availability. The second letter established that the claimant did not show that she was not working a full working week. The claimant appealed from these decisions to a Board of Referees. Even though the letter included with her claim indicates that the claimant was appealing only the issue of her availability, the Board of Referees’ arguments dealt with the issue of her unemployment status and her availability and the claimant never contested this.

Therefore, the Board of Referees cannot be criticized for taking the lead and examining the two issues in its decision in order to ensure that no errors were made. After reviewing the applicable factors, the Board determined that it would not allow the claimant’s appeal. The Board’s decision was detailed and well thought-out. Thus, there is no reason for me to intervene in this respect.

Application of sections 30 and 31(2) of the Regulations

Section 30(1) of the Regulations sets out what constitutes a full working week for self-employed persons as follows:

30. (1) Subject to subsections (2) and (4), where during any week a claimant is self-employed or engaged in the operation of a business on the claimant’s own account or in a partnership or co-adventure, or is employed in any other employment in which the claimant controls their working hours, the claimant is considered to have worked a full working week during that week.

Section 31 of the Regulations sets out what constitutes a full working week for employed persons as follows:

31. (1) A full working week of a claimant, other than a claimant referred to in section 29 or 30, is the number of hours, days or shifts normally worked in a calendar week by persons in the claimant’s grade, class or shift at the factory, workshop or other premises at which the claimant is or was employed.

(2) When the number of hours, days or shifts referred to in subsection (1) is the number that is normally worked by persons in part-time employment and is less than the number of hours, days or shifts normally worked in a calendar week by persons employed in full-time employment in the employment that is closest in nature to the claimant’s employment, the claimant is considered is considered to have worked a full working week when the claimant has worked the number of hours, days or shifts that are normally worked by a person in full-time employment.

The claimant argues that, according to her interpretation of what constitutes a full working week for the purposes of determining her unemployment status, the Board of Referees applied section 30 but it should have applied section 31(2).

Technically, the claimant is correct. The Board of Referees should have referred to section 31(2) of the Regulations and not section 30. However, upon reading the decision, it is clear that this is a clerical error, since the Board of Referees applied the correct criteria. In fact, the Board of Referees seems to have repeated the clerical error that appeared in the Commission’s position.

There is a well-known jurisprudential principle in administrative law according to which a typographical error that does not change the basis of a decision does not have to be revised (Petrova v. Canada (Minister of Citizenship and Immigration), 2004 FC 506 at paragraph 52, 251 F.T.R. 43.) This decision states as follows:

When a mistake is typographical in nature, the Court should not interfere with the decision, especially if the error does not appear to have been a misunderstanding of the evidence. ...

By analogy, this principle also applies in this case. The Board of Referees made a mistake by referring to section 30 instead of section 31(2) of the Regulations. This mistake does not affect the merits of the claim because the Commission’s arguments, as summarized by the Board of Referees, as well as the reasons for the decision, are based on section 31 of the Regulations, which was applied correctly and reasonably refers to the claimant’s situation.

For these reasons, the appeal is dismissed.

Marie-Josée Bédard
UMPIRE

Ottawa, Ontario
June 23, 2011