CUB 76898

IN THE MATTER of the EMPLOYMENT INSURANCE ACT

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IN THE MATTER of a claim by
X.H.

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IN THE MATTER of an appeal to an Umpire by the Commission
from the decision of a Board of Referees given on
April 22, 2010, at Richmond Hill, Ontario

DECISION

Mr. X.H came to Canada from Iran, where he was a Doctor of Veterinary Medicine. In order to practise veterinary medicine in Canada he was required to pass certain licensing examinations. He has a wife and child and took employment with an electronics business where he was paid on commission.

There is no dispute that he left this employment on August 8, 2009. The fundamental question was whether he left his employment in any .of the circumstances described in ss. 29(b) of the Employment Insurance Act, S.C. 1996, c. 23, and whether he had no reasonable alternative to leaving his employment immediately.

The Commission denied Mr. X.H.’s claim for benefits. The officer determined that he had not demonstrated just cause for voluntarily leaving his employment immediately. It therefore imposed an indefinite disqualification on the claim. The Commission also determined that he was not available for employment because he was attending a veterinarian course from February 1, 2010, which was the start date of his claim. Mr. X.H. had also asked that his claim be antedated to August 9, 2009, the day after his last day of work. He had not applied then because he understood that he needed to be laid off work in order to apply for benefits. When he learned otherwise, he applied, but the application was late.

The Board of Referees dismissed Mr. X.H.’s appeal with respect to his request to antedate his benefits. That part of the decision has not been appealed.

The Board of Referees allowed the appeal with respect to the question of voluntary leaving. The Board found that Mr. X.H. acted reasonably in leaving his employment because his commission income had been reduced by 50% resulting in $600.00 bi-weekly wage loss leaving a remainder which was insufficient to support his family. It was found that Mr. X.H. fell within the scope of s. 29(c) of the Act in that he experienced a significant modification of terms and conditions respecting wages or salary.

The Board also allowed the appeal with respect to the availability for employment. The Board accepted the evidence of Mr. X.H. that he had been looking for work before he left his employment and afterwards, and that with regard to qualifying to practicing his profession, Mr. X.H. was clear in stating that he has put that dream on hold.

The issues raised in this appeal are whether the Board erred in finding that Mr. X.H.’s circumstances fall under the exception of significant modification of terms and conditions respecting wages or salary and whether he was available for work.

The Commission submits that the Board erred in finding that the claimant had no reasonable alternative to leaving his employment because of the reduced commission income he was receiving. Specifically, the Commission says that there was no evidence to support that finding other than the evidence of the claimant at the hearing and this had to be viewed in light of the fact that he had not previously raised this as his reason for leaving. He had previously indicated that he left his employment in order to pursue his veterinarian license.

The Commission relies on statements recorded from the claimant as to his reason for leaving his employment including the following statement written by Mr. X.H. when he filed his appeal to the Board:

I immigrated to Canada as a Doctor of Veterinary Medicine in 2001. I have worked in Future Shop (Best Buy Canada) as a sales associate for about 8 years.

Within last 4 years I had done all my efforts to keep my full time job while studying for all stages of veterinary licensing.

Three times I have registered for North American Veterinary Licensing (NAVLE) and I failed because I was not able to study efficiently while I was working as a full time employee in a retail store.

In 2007 Canadian Veterinary Association added Basic and Clinical Science Exam (BCSE) to the licensing process as a prerequisite for NAVLE exam.

After 1.5 years while I was working as a full time employee I could pass this exam (BCSE) and again be eligible to take the North American Veterinary Licensing (NAVLE).

The fee for each NAVLE exam is $892.50 and candidates are not approved to take the NAVLE more than five times.

My full time job in Future Shop (Best Buy Canada) even could not pay my basic life expenses and I was dependant on borrowing money from banks to survive.

The only available way to save myself and my family from unclear future was getting my veterinary license so again and for the fourth times I registered for NAVLE Exam and I had to quit my job to study full time to pass this licensing exam and get back to my original profession after 9 years immigration to Canada and this time I pass. During this time I was only relying on borrowing money from banks for my family expenses. [sic]

This statement and other documentary evidence were considered by the Board in light of the statement made by the claimant at the hearing that there was a lot of misunderstandings and miscommunication in the docket and he wished to clear them up. Being a recent immigrant to Canada, the possibility of such misunderstandings and miscommunications may be heightened.

The Board found that the circumstances faced by Mr. X.H. constituted a significant modification of terms and conditions respecting wages or salary. Given the 50% reduction in income, that was not an unreasonable finding. Admittedly, the reduction appears to have occurred over a long time period; however, there is no time-frame set out in s. 29(c)(vii) of the Act within which the reduction must occur. The Board accepted the evidence of Mr. X.H. that he could not support his family on the reduced commission income, and in fact was borrowing to make ends meet.

An employee may be able to put up with a reduced income for some period of time and he may seek employment while he considers his options. However, at some point the employee is faced with fewer choices. In the case of Mr. X.H., having been unable to obtain alternate employment, he decided to focus on the pursuit of his veterinarian license.

While it may appear from the above statement by Mr. X.H. that he quit in order to study full time, the Board accepted his evidence at the hearing that he had been looking for another job before he quit and was available and looking for work thereafter. It accepted that he quit because of the inability to support his family on the reduced income and it appears to have accepted that at that time, the only alternative he saw to being able to support his family was to obtain his veterinary license.

I note that even in the above-noted statement filed with the Board, which the Commission relies upon, Mr. X.H. stated that My full time job in Future Shop (Best Buy Canada) even could not pay my basic life expenses and I was dependant on borrowing money from banks to survive [emphasis added].

In this case, the Board weighed the evidence before it. It did not ignore any evidence and it gave greater weight to the oral evidence and explanation of Mr. X.H. at the hearing. That is within its mandate and it is not for the Umpire to reweigh the evidence, even if I might have reached a different conclusion.

As noted, the Board accepted his evidence that he was always available for work. It appears that there was a misunderstanding about the course he had hoped to take in the spring of 2010. Had he taken it, then he would not have been available for work; however, he did not take the course and he was available for work.

For the above reasons I cannot find that the Board’s decision was unreasonable. The appeal before the Umpire is therefore dismissed.