TRANSLATION
IN THE MATTER of the EMPLOYMENT INSURANCE ACT
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IN THE MATTER of a claim for benefits by
D.Q.
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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
February 3, 2011, at Gaspé, Quebec.
DECISION
GUY GOULARD, Umpire
The claimant filed a claim for benefits effective August 22, 2010. The Commission determined that the claimant did not prove that he was available for work because he was taking part in a training program. The Commission therefore imposed an indeterminate disentitlement on him effective December 6, 2010.
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. The appeal was heard at New Carlisle, Quebec, on July 27, 2011. The claimant attended the hearing and was represented by counsel A.B.
In his claim for benefits, the claimant had indicated that he was taking a training course at Cégep de Rimouski. The course began on August 23, 2010, and was scheduled to end on December 20, 2010. Classes were held on Monday, Wednesday and Thursday. He had to devote ten to fourteen hours a week to his classes. The claimant stated that if there were a conflict between a job offer and his course, he would leave the course and accept the job. He added that he was available and looking for employment.
In Exhibit 4, the claimant explained that he registered for a training program at the Cégep after being laid off and because he was unemployed. He confirmed that he would leave the course at any time to take on a full-time job. He again stated that he was looking for a full-time job in Gaspésie and in Rimouski. The claimant had been told to keep a list of his job searches.
In Exhibit 6, the claimant stated that he had decided to take a course instead of sitting around and doing nothing. He added that he had worked full time the summer before while taking a class eight to ten hours a week. He still had not found full-time employment, but was working for his former employer, who also had employees in Rimouski. He had worked on Monday mornings, Thursday afternoons and all day on Fridays. He stated that he had worked during the periods when he had no classes. He claimed that he had stayed in touch with the employer to see if any work was available. He had also gone job hunting at a sawmill, to which he had been referred by his school, but the sawmill was closing down. He added that he had looked for jobs in newspapers and on the internet. He had not contacted other employers.
In his letter of appeal to the Board of Referees, the claimant reiterated that he had previously worked full time while taking courses 25 hours a week. He said that an officer from the Commission had told him that he would have to do three to five job interviews a week if he wanted to keep receiving benefits. He stated that that was not possible because he was already working part time and employment was scarce in the region. He repeated that, instead of staying at home and doing nothing, he had decided to take a course in order to reduce his chances of going on unemployment again in the future.
The claimant attended the Board of Referees hearing by phone. He restated what he had already said in the appeal docket. He emphasized that he worked for his former employer doing electrical work. He confirmed that he was willing to accept a full-time job in his field or in any other related field. He stressed that full-time employment had priority over his training.
In a well-reasoned decision, the Board of Referees reviewed the evidence and the case law and concluded that the claimant had proven that he was available for work under the Employment Insurance Act. The Board allowed the claimant’s appeal.
In its appeal from the Board of Referees’ decision, the Commission submitted that the Board had erred in deciding that the claimant had established his availability for work. The Commission emphasized that the claimant had taken a training course and had not provided proof that he had been looking for employment, as the Commission had requested. The Commission argued that the claimant had placed personal restrictions on his availability by taking a training course and that the Board had failed to take this into account. The Commission stated that the Board had erred in fact and in law and that the Board’s decision should be overturned.
Counsel A.B. stated that the Board had taken all the evidence into consideration in making its decision. She stressed that the claimant had only 14 hours of classes a week, that he had been able to find work with his former employer and that he had repeatedly stated that he had been looking for a full-time job and would have left his course had he found such work in his field or in a related field. She also emphasized that the claimant had in the past worked full time while taking a training course. A.B. added that the claimant had not quit his job to take a training course, but had rather made the decision to do so while he was unemployed and continuing to look for full-time work, instead of doing nothing. He had returned to work for his employer a number of hours per week and searched through newspapers and the internet to find other jobs. He had explained why he did not go job hunting at other places of work and reiterated that there were very few jobs available in the region. A.B. stated that the Board’s decision was in fact reasonable and well founded on the evidence and the relevant case law.
The issue of whether the claimant proved his availability for work is a mixed question of fact and law. The standard of review is reasonableness. With regard to the legal aspect of the issue, case law has established that, in order to demonstrate availability for work within the meaning of the Employment Insurance Act, a claimant must meet three criteria: a desire to return to the labour market as soon as suitable employment is offered; the expression of that desire through efforts to find suitable employment; and not setting personal conditions that might unduly limit the chances of finding employment.
In this case, the claimant had not only looked for a job, but he had found one that enabled him to work a number of hours a week. He repeatedly stated that he had been looking for full-time employment. He said that he had consulted newspapers and the internet and that he had gone to see an employer. He had explained that there were few jobs in his region. There was no indication that the claimant could have found a full-time job had he not taken the course, or that doing so constituted a personal condition that limited his chances of finding full-time employment.
In addition, according to the case law (Le Centre de valorisation des produits marins de Tourelle Inc. (A-547-01), McCarthy (A-600-93), Ash (A-115-94), Ratté (A-255-95) and Peace (A-97-03)), an Umpire may not substitute his or her opinion for that of a Board of Referees, unless the Board’s decision appears to have been made in a perverse or capricious manner or without regard for the material before it. In this case, the Board’s decision appears to be entirely consistent with the evidence in the docket and the relevant legislative provisions as interpreted in the case law.
Consequently, the appeal is dismissed.
Guy Goulard
UMPIRE
Ottawa, Ontario
August 19, 2011