Appealed to the Federal Court of Appeal (A-245-11)
IN THE MATTER of the EMPLOYMENT INSURANCE ACT
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IN THE MATTER of a claim by
F.S.
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IN THE MATTER of an appeal to an Umpire by the Commission from
a decision by the Board of Referees given on August 27, 2010
at Burnaby, British Columbia
L.-P. LANDRY, Umpire
The Commission appeals from a decision of the Board of Referees allowing the claimant's appeal from the Commission's decision to disentitle the claimant from benefits for her failure to prove that she was unemployed.
The claimant voluntarily left her employment with Northern Rockies Regional Municipality. Before the Board the Commission conceded that the claimant had left that employment for just cause.
Prior to leaving that employment the claimant attempted to begin a new career as a writer. Before the Board she indicated that she spent a considerable amount of her spare time in an attempt to build this new career while continuing to search for full-time employment.
The Board identified the issues in this case as follows:
"On such issues, the Board must determine, among other things, whether the claimant is capable of work, is she willing to work, has she made efforts to find work, and has she set personal conditions that unduly limit the chances of returning to the labour market. In other words, if the claimant is capable of working, have they been looking for work and do they have a desire to return to work if a suitable job is offered. The onus of proof is on the claimant to prove her availability for work."
After considering the claimant's evidence the Board concluded as follows:
"In this case, the Board finds as a matter of fact that the claimant is capable of working. We also find that the claimant is willing to work as she has been looking for work during her benefit period. Jurisprudence is very clear on the issue of availability, the Board must look at the intent of the claimant. In this case, the Board determines that the claimant, by her own admission, at the hearing indicated that if she was offered a suitable full-time job she would accept it. The claimant told the Board that she had started this project while she was working full-time and could do so now as well."
The claimant filed her claim for regular benefits on April 27, 2010. On July 13, 2010 she stated during a telephone interview that she was searching for work. However she also indicated that her intention was to become fully self-employed as a writer and that at that time "she would likely refuse employment if it had been offered to her" (Exhibit 7-1).
In her statement to the Board the claimant explained that she had started to write during the period of her former employment and she published a children's book. She made efforts to sell the book and at the time of the hearing she had been successful in selling 7 books with an income of $1.00 per book.
She maintained before the Board that she was hoping to eventually become a successful author. She has been spending her spare time to this aim while looking for employment. She explained that she lives in a remote area where job opportunities are quite limited. In those circumstances the time spent on job searches is of course limited and she therefore spends the balance of her time trying to develop her "business" as an author.
Attempting to earn a living by writing books does not compare to the more common situation of people attempting to develop a business by purchasing equipment, renting premises, publishing advertisements and seeking clients. The claimant wrote one book, at least in part, while she occupied full-time employment. The evidence allowed the Board to conclude that the claimant could be available for full-time employment while not abandoning her dream to become a recognized author.
The Board had to weigh the evidence of the claimant in light of her statements of July 13, 2010. It was open to the Board to conclude as it did that the claimant had shown that she was available and willing to accept full-time work should the opportunity arise. That conclusion is not unreasonable considering the whole of the evidence.
The Commission submits that the claimant was not unemployed during the period since as she stated she spent a considerable amount of time making social contacts through internet and attempting to develop her skill as a writer. In fact the evidence shows that the claimant did this to use her spare time as she was unemployed. She lived in a small community where the openings for work were very limited. She did not require a great amount of time to survey the prospective employers in her community.
The Commission submitted that the Board failed to determine specifically if the claimant was actually "unemployed" in view of the fact that the Commission's contention was that the claimant had an employment during the period in issue. It is clear from the context of the Board's decision that the Board considered that the claimant was unemployed during the period.
Considering all the circumstances I cannot conclude that the Board's decision is unreasonable. It would be difficult to consider as employment the efforts of the claimant to attempt to become recognized as a writer while awaiting the opportunity to obtain gainful employment.
In this case I have been advised that the claimant did provide to the Office of the Umpire her new address in Calgary. This information was supplied by telephone. However this information was not followed with a note on the appeal file. The notice of hearing was forwarded to the former address of the claimant and Canada Post re-directed the letter to the claimant's address in Calgary.
The claimant travelled to Prince George for the hearing. In view of those facts I recommend that the traveling expenses of the claimant be paid from her residence in Alberta to Prince George.
For those reasons the appeal is dismissed.
L.-P. Landry
UMPIRE
Gatineau, Quebec
April 29, 2011