CUB 75054

GUY GOULARD, Umpire

The claimant worked for Service d'aide à la famille until August 28, 2009. He filed an initial claim for benefits, which was established effective August 30, 2009. The Commission then found that the claimant failed to prove that he was available for work because he was taking a full-time training course. The Commission imposed an indefinite disentitlement on the claimant effective September 6, 2009.

The claimant appealed from the Commission's decision to a Board of Referees, which allowed his appeal. The Commission appealed from the Board's decision to an Umpire, and the hearing took place in Edmundston, New Brunswick, on July 5, 2010. The claimant was in attendance.

On his claim for benefits, the claimant indicated that he was taking a training course at Université de Moncton in Edmundston. The course began on September 14 and was scheduled to end on April 30, 2010. The program was full time, four days a week, and required 40 hours a week of the claimant's time. The claimant indicated that, if he were offered a job that conflicted with his course schedule, he would complete the course and wait for another offer of employment. He was looking for full-time work while taking the course. He intended to complete the course so that he could find a better permanent job. He had not yet had time to look for employment and he did not have a work-study history.

On appeal to the Board of Referees, the claimant indicated that, when he asked the Commission about receiving Employment Insurance benefits while taking a training course, he was told that his request was approved but that he had to provide certain documents, including a copy of his course schedule. He was unable to obtain a copy of his schedule until his classes began. Based on the information provided to him by the Commission, he took the necessary steps to go back to school.

The officer who met with the claimant provided the following information.

C.D. said that he met with the claimant on July 15, 2009. A.B. was accepted into the program on August 18. The claimant was asked to submit a copy of his schedule and his letter of acceptance. He did not submit them until September 8, which was after the deadline had passed. Had the claimant not delayed in submitting the requested documents, he would have been accepted into the program.

(Emphasis added)

The claimant attended the hearing before the Board of Referees and reiterated the information that was already in the appeal docket, namely, that he had met with C.D. on a regular basis and that his request to take a training course had been approved on August 18, 2009. He had to provide certain documents but he was not told that there was a deadline for doing so. He had to take some tests before receiving his course schedule, which he was not given until September 2. Since he had never been informed that there was a deadline, he was very surprised when he was told on September 8 that the deadline for submitting the documents had already passed.

The Board of Referees reviewed the evidence and allowed the claimant's appeal for the following reasons:

The Board of Referees maintains that when a person is referred to a course by the management of an authority designated by the Commission, under the Employment Insurance Act, he is said to be unemployed, able to work and available to do so for the entire period that he is taking a course or training program.

In this case, the Board of Referees finds that the claimant was referred to a course by the management of an authority as his courses were approved by an advisor on August 18, 2009.

As a result, the Board of Referees unanimously allows the claimant's appeal under section 18(a) of the Employment Insurance Act.

On appeal from the Board of Referees' determination, the Commission submitted that the Board erred in law when it found that the claimant proved that he was available for work during the period in which he had been taking a training course and that the Board exceeded its jurisdiction when it found that the claimant had been referred to a training course by an authority designated by the Commission.

The Commission submitted that the Board based its decision on the finding that the claimant should have been referred to his training course, which was not the case since he had not met all the conditions required to be referred to the course. The Commission submitted that the evidence did not establish that the claimant was referred to the course and that he therefore had to prove that he was available for work, which he did not do because he was taking a full-time training course.

In this case, the Commission officer testified that the claimant was accepted into the training program on August 18, 2009 (Exhibit 7). The officer indicated that the claimant had been asked to provide a copy of his schedule and letter of acceptance. He also confirmed that the claimant would have been approved for the course had the documents been submitted on time. There was no indication that there was a deadline by which the documents had to be submitted. The claimant indicated, both in the information in the docket and in his testimony before the Board, that he had never been told that there was a deadline for submitting the requested documents. The claimant was unable to obtain his course schedule until September 2.

Section 25(1)(a) of the Employment Insurance Act reads:

25.(1) For the purposes of this Part, a claimant is unemployed and capable of and available for work during a period when the claimant is

a. attending a course or program of instruction or training at the claimant's own expense, or under employment benefits or similar benefits that are the subject of an agreement under section 63, to which the Commission, or an authority that the Commission designates, has referred the claimant . . .

The Employment Insurance Act does not set out any conditions that claimants must meet to show that they have been referred to a training course. However, the case law has established that, before they are able to demonstrate that they have been referred to a training course under section 25(1)(a) of the Act, claimants must establish that they received authorization from the Commission before they registered for the course in question (CUB 54851). In CUB 54851, the claimant did not contact the Commission before registering for a training course. She assumed that she would be approved for the course but she was not. Riche J. also found that the claimant could not be considered to have been approved for her training course before she registered.

In this case, the only evidence provided by the Commission showed that a Commission officer told the claimant on August 18, 2009 that he was approved for his training course. The claimant was unable to obtain one of the documents he was asked to provide until he completed certain steps in the registration process. Based on this evidence, the Board found that the claimant did not just assume that he had been approved to take the course but that he believed that he had been referred to the course.

Under section 25(1)(a) of the Act, when claimants are referred to a training course, they do not have to prove that they are available for work.

The Umpire's authority is limited by section 115(2) of the Act. Unless the Board of Referees failed to observe a principle of natural justice, erred in law or based its decision on an erroneous finding of fact, the Umpire must dismiss the appeal.

The Commission did not demonstrate that the Board erred in such a way. On the contrary, the Board's decision is well founded on the evidence presented.

Consequently, the appeal is dismissed.

Guy Goulard

UMPIRE

OTTAWA, Ontario
August 12, 2010