IN THE MATTER of the EMPLOYMENT INSURANCE ACT
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IN THE MATTER of a claim by
N.T.
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IN THE MATTER of an appeal to an Umpire by the claimant
from a decision by the Board of Referees given on
October 13, 2010, at Mississauga, Ontario
LOUIS S. TANNENBAUM, Umpire
The issues under appeal are: 1) a disentitlement imposed for the period that the claimant was absent from Canada pursuant to section 37 of the Act; and 2) a disentitlement because the claimant had not proven he was available for work during his absence pursuant to paragraph 18(a) of the Act.
A hearing has not been requested therefore a decision will be made based upon the information in the appeal docket.
While receiving benefits the claimant travelled outside of Canada and did not properly report his absence to the Commission. Disentitlements were imposed by the Commission for the period of the claimant’s absence from Canada and also for his failure to prove he was available for work during the period of absence (exhibit 5).
An appeal by the claimant before the Board of Referees was dismissed (exhibit 15) and the claimant now appeals the Board’s decision before the Umpire invoking all three permissible grounds of appeal, namely denial of natural justice, error of law and error of fact (exhibit 16-2).
In dismissing the claimant’s appeal the Board of Referees concluded:
“The Board finds that the claimant was out of the country for the period of May 17, 2009 to May 25, 2009 (Exhibit 4-1). Therefore it resulted in an overpayment in the amount of $522.00.
In the case of W.C. (CUB 57237), Justice Goulard confirmed the principle, established in J.Q. (CUB 27413), that employment insurance benefits are not payable to those persons not in Canada except as specifically prescribed by the Regulations. The appeal does not fall within any of the exceptions in section 55 of the Regulations.
Issue 2: Availability
Pursuant to subsection 18(a) of the Act, a claimant is not entitled to be paid benefits for any day for which he/she fails to prove that he/she is capable of and available for work and unable to obtain suitable employment. Availability is a question of fact, which would normally be disposed of on the basis of an assessment of the evidence. Absence from home on a foreign trip is in direct opposition to the concept of availability. The Board found that the claimant in this situation fails to prove availability for work.
The Board finds that since the claimant was in Italy for the period beginning May 17, 2009 to May 25, 2009, he was unavailable for work.”
There is no evidence to support any of the grounds of appeal invoked. The Board properly applied the law to the facts in the present matter and rendered the correct decision. There is no reason for the Umpire to intervene.
For the above reasons the appeal is dismissed.
Louis S. Tannenbaum
UMPIRE
Ottawa, Ontario
December 14, 2012