CUB 79278
IN THE MATTER of the EMPLOYMENT INSURANCE ACT
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IN THE MATTER of a claim by
M.C.
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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 November 2, 2011,
at Charlottetown, Prince Edward Island
DECISION
J. M. BORDELEAU, Umpire
This is an appeal by the Commission from the decision of a Board of Referees which found that the claimant had proven her availability for work pursuant to paragraph 18(a) of the Employment Insurance Act (the Act).
The claimant renewed her claim for benefits effective August 21, 2011. She indicated that she was on a leave of absence from Atlantic Superstore as she was returning to school.
The claimant was taking a full time course at NSCC from September 7, 2011 to June 23, 2012. She attends school 5 days a week from 8:30 am to 5:00 pm and spends a total of 75 hours a week in the classroom and doing homework, but she stated she is available for work on Saturday from 8:00 am to 10:00 pm and on Sunday from 8:00 am to 8:00 pm.
The claimant was notified that benefits could not be paid to her as of August 19, 2011 as she was enrolled in a training course of her own initiative and had not proven her availability for work.
The claimant felt that she was being penalized for furthering her education. She stated that she had established a pattern of full-time work while attending university.
The issues before me are: (a) whether the Board erred in law, and the applicable standard of review, when it ignored evidence in the file and failed to apply the legal test for availability, and (b) whether the Board erred in fact and in law, and the applicable standard of review, when it decided that the claimant was available for work while in a full-time course.
In order to qualify for regular benefits a claimant must show that he or she is available and capable of working but unable to find suitable employment. Availability is established by three factors: the sincere desire to return to the labour market as soon as suitable work is offered, the expression of such desire through job search efforts, and not setting personal conditions that unduly limit the chances of returning to the labour market; Faucher v. Canada (EIC), A-56-96; Canada (A.G.) v. Bois, A-31-00.
In the present case even though the claimant testified before the Board of Referees that she was available for work 35 hours per week, this contradicts her consistent testimony that she can only work on weekends because her course is full-time Monday to Friday. By her own statement she is already employed to the fullest extent of her availability. The claimant did work for her present employer 32 hours per week while attending university but, as she confirmed, this schedule would be impossible while enrolled in the program at NSCC.
The jurisprudence has established that a claimant who is restricting his or her availability and who is only available for employment outside the course schedule has not proven availability for work within the meaning of the Act Canada (A.G.) v. Gagnon, A-556-04.
There is a presumption that a claimant enrolled in a full-time course of instruction is not available. This presumption of fact can be rebutted only by proof of exceptional circumstances; Canada (A.G.) v. Loder, A-699-02.
In the present case the claimant has not rebutted such presumption. Her main goal was not to find suitable employment but rather to pursue her studies until completion.
The Board of Referees erred in law when it found that the claimant was available for work within the meaning of paragraph 18(a) of the Act. Accordingly, its decision is rescinded and the Commission’s appeal is allowed.
J. M. Bordeleau
UMPIRE
Ottawa, Ontario
May 31, 2012