CORRESPONDING FEDERAL COURT DECISION: A-252-11
IN THE MATTER of the EMPLOYMENT INSURANCE ACT
and
In the matter of a claim for benefits by
F.R.
and
IN THE MATTER of an appeal to an Umpire by the Commission
from a decision of a Board of Referees given
July 29, 2010 at Kitchener, Ontario
GERALD T.G. SENIUK, Umpire
The Commission appeals the decision by the Board of Referees that the claimant was eligible to participate in the Career Transition Program pursuant to section 77.91 and subsection 36(10.1) of the Employment Insurance Regulations.
The Commission had determined the claimant was not eligible to participate in the Career Transition Program because she did not have a return to work action plan before August 23, 2009, pursuant to paragraph 77.91 (3)(c) of the Regulations.
Ms. F.R. appealed the Commission’s decision stating that she did meet the criteria for a long-tenured worker, and that her original appointment with the career case manager was prior to the August 22, 2009 deadline.
The Board of Referees held, in part, as follows (exhibit 16):
The Board of Referees finds that the claimant did everything that a reasonable person would do in that she filed immediately for regular El benefits online okay when her contract ended on August 11, 2009.
Within a week, she received and delivered her record of employment to the Kitchener El office. She was aware of the Second Career program because of her previous layoff when she was downsized from Clemmer lndustries and sought retraining at that time. However when she was able to find a job at Revera she chose to work rather than be on employment insurance benefits.
The Board of Referees finds that it is stated on Exhibit 14.3 section 77.91 (3) Pilot Project number 14 applies in respect of every claimant who meets the following criteria:
c) Within 20 weeks after the beginning of the claimant's benefit period or before August 23, 2009, if the benefit period began before May 31, 2009, the claimant has an active return to work action plan.
The Board of Referees finds that the claimant did in fact have her active return to work action plan in place within the 20 weeks after the beginning of her benefit period, which began on her layoff on August 11, 2009.
Since the claimant meets the requirement stated in Pilot Project number 14, the Board of Referees grants the appeal.
The Commission submits that the Board of Referees erred, in part, as follows (exhibit 18):
The Commission submits that the claimant does not meet the eligibility criteria for extended benefits in accordance with s. 77.91 (3)(c) EIR which stipulates:
(c) within 20 weeks after the beginning of the claimant's benefit period or before August 23, 2009, if the benefit period began before May 31, 2009, the claimant has an active return to work action plan;
The evidence is consistent that the claimant established a claim for sickness benefits effective March 15, 2009, and was paid 7 weeks of sickness benefits; she returned to work until August 11, 2009 and the claim was reactivated for regular benefits effective August 9, 2009. Accordingly, the Commission submits that the claimant's benefit period was correctly established effective March 15, 2009 - the date on which the benefit period began - in accordance with s. 10(1) EIA. Canada (AG) v. Chinook, A-117-97; Taylor v. Canada (AG), A-84-90
Therefore, in order to meet the requirements of s. 77.91(3)(c) ElR, the claimant had to have an active return to work action plan in place before August 23, 2009 as her benefit period began before May 31, 2009. The evidence shows that the claimant did not meet with an employment counsellor until September 1, 2009.
The issue of the amount of benefits the claimant was entitled to as a long-tenured worker surfaced early on in the process, and was cited as one of the issues by the Board of Referees. Although that issue was not included in the Board’s analysis or conclusion, the Commission submitted the following on that point (exhibit 18):
The Commission also submits that the claimant is not entitled to any further benefits after June 26, 2010. Although she met the criteria for 20 additional weeks of benefits under Bill C-50 in accordance with ss. 10(2)(a)(ii) and 12(2.1)(f) EIA, she was paid the maximum 50 weeks of combined benefits pursuant to s. 12(6) EIA as of June 26, 2010.
To the extent that that question remains not dealt with, I determine that the claimant has been paid her full maximum benefits pursuant to Bill C-50.
As regards the primary issue, the Board of Referees did not commit an error and made a decision that was within its jurisdiction to make. The requirements of the Act are respected by the Board, which applied the correct law requiring that an active work plan be in place within 20 weeks. In the circumstances of this case, it was reasonable for the Board to conclude that the facts before it, which the Board fully apprehended, amounted to an active work plan being in place.
The claimant had suffered as a result of some error not of her making that delayed the recording of her status as a long-tenured worker. Once the status was corrected, her concern was to retrain and to take advantage of the opportunity presented. She suffers from debilitating migraines and on August 22, 2009, as a result of a migraine, she cancelled a booked appointment with a career counsellor. The appointment was rescheduled for September 1, 2009, at which time she received the referral for training (exhibit 13). Had she kept the August 22, 2009 appointment, there would be no issue with the Commission over her eligibility. Had she known that the rescheduling would lead the Commission to take the action it did, she would have kept the meeting despite her great pain that day. However, as she explained at the Umpire hearing, she was not advised by letter of this deadline by the Commission until sometime in December, after the deadline had passed.
Based on all of these circumstances, the Board of Referees concluded that the claimant had an active plan in place as of August 22, 2009. Given these circumstances, the Board of Referees has not stretched the meaning of an active work plan so far as to exceed its jurisdiction to make reasonable findings of fact. This finding is reasonable and supported by the evidence.
Accordingly, the appeal is dismissed.
Gerald T.G. Seniuk
UMPIRE
Saskatoon, Saskatchewan
April 29, 2011