Federal Court Decision #A-719-91 - SARTO,LANDRY v. THE DEPUTY ATTORNEY GENERAL OF CANADA, COMMISSION

JUDGMENT OF THE FEDERAL COURT OF APPEAL

Date:
October 28, 1992

Docket:
A-719-91

Umpire's Decision:
CUB 20021

"TRANSLATION"

CORAM:

HUGESSEN J.A
DESJARDINS J.A
DÉCARY J.A

BETWEEN:

SARTO LANDRY,

applicant,

v.

DEPUTY ATTORNEY GENERAL OF CANADA,

respondent,

and

CANADA EMPLOYMENT AND IMMIGRATION COMMISSION,

mis-en-cause.

Hearing held at Québec on Wednesday, October 28, 1992

REASONS FOR JUDGMENT OF THE COURT
(Delivered from the bench at Quebec
on Wednesday, October 28, 1992)

HUGESSEN, J.A.:

We are all of the opinion that the umpire erred in law when he stated:

An extensive and consistent line of authority has long since confirmed that a student taking full-time courses is not available for work within the meaning of the Unemployment Insurance Act. This rule is subject to two exceptions. The first concerns a student sent on a course by the Commission: that is not the claimant's position. The second exception covers a student who over the years has established a record that he held full-time employment while studying: that is not this claimant's position.

This observation on the state of the law is too categorical. While it is true that there is a presumption that a person enroled in a course of full-time study is generally not available for work within the meaning of the Act, at the same time it has to be admitted that this is a presumption of fact which certainly is not irrebuttable. It can be rebutted by proof of "exceptional circumstances". ¹ The work record mentioned by the umpire is only one example of such exceptional cases, although in fact it may be the one most frequently encountered. There may certainly be others.

However, having said that, it is still true that availability for work is essentially a question of fact. The applicant was not believed on this question when he stated that he was available because he would have dropped his university courses (for which he had received large subsidies in the form of scholarships and student loans) if he had been offered employment. In those circumstances, despite the error of law, it is clear that the umpire was right to dismiss his appeal.

The s. 28 application will be dismissed.

James K. Hugessen

Judge

¹ See Attorney General v. Mercier [1977] 2 F.C. 389 at 390. Strictly speaking, the "first exception" mentioned by the umpire is not an exception: it is actually a statutory rule (see s. 26(1) of the Act) which provides that a claimant who meets certain conditions is deemed to be unemployed, capable of and available for work. 1 See Attorney General v. Mercier [1977] 2 F.C. 389 at 390. Strictly speaking, the