TRANSLATION
IN THE MATTER of the EMPLOYMENT INSURANCE ACT
and
IN THE MATTER of a claim for benefits by
Daniel MARTEL
and
IN THE MATTER of an appeal to an Umpire by the Employment Insurance Commission from the decision of a Board of Referees given on November 20, 2003
at Richelieu-Yamaska, Quebec.
DECISION
André Quesnel, Umpire
The Commission refused to pay the benefits claimed from April 16, 2003 because the claimant was detained in a prison or in a similar institution.
The Board of Referees reversed this decision, which led to this appeal.
The Commission argues that the Board of Referees erred in fact and in law by failing to apply the provisions of sections 37a) of the Unemployment Insurance Act and 54 of the Regulations.
The claimant was detained until April 16, 2003, the date on which he was released on the express condition that he undergo treatment at the Maison l'Envolée centre and that he remain there 24 hours a day.
Had he not accepted these conditions, his detention would have been continued.
Consequently, the Commission ruled that, as of April 16, 2003, the claimant was an inmate in a prison or a similar institution under the provisions of section 37 of the Act; since he was not available for work, the claimant was not entitled to receive benefits.
The Board of Referees erroneously found that, since the claimant had voluntarily decided to undergo treatment, he was not detained in a prison as such. According to the claimant's undertaking, he was to remain in the centre 24 hours a day, without leaving; if not, he would have to report to the court house in order to be incarcerated there.
In one of his rulings 1, the Umpire decided that in such a situation, a claimant was considered to be an inmate:
Clearly, the claimant was undergoing treatment at the Centre Corps, Ame et Esprit of his own free will. However, had he not gone to the treatment centre, he would have been put back in prison. Further, were he to decide to drop out of treatment, he would go back to prison. Exhibit 6-2 is very explicit in that regard, and in my opinion, there are no grounds for arguing that the claimant was not incarcerated.
On October 19, 2003, the claimant signed a document in which he undertook to comply with a number of conditions, including the one of being placed under the responsibility of an authorized representative of the l'Envolée establishment and living in that establishment 24 hours a day, and to report as a prisoner to the court house immediately upon his expulsion or decision to prematurely end his therapy.
During his stay at the centre, the claimant never obtained a certificate of availability allowing him to seek or accept employment in order to take advantage of the exclusion mentioned in section 54 of the Regulations:
54. A claimant who is an inmate of a prison or similar institution and who has been granted parole, day parole, temporary absence or a certificate of availability, for the purpose of seeking and accepting employment in the community is not disentitled from receiving benefits by reason only of section 37 of the Act.
The Federal Court of Appeal 2 ruled that a temporary absence like the one which the claimant used to go to his sick mother's bedside and attend her funeral was not the equivalent of a certificate of availability enabling him to seek or accept employment.
The error committed by the Board of Referees allows me to intervene to render the decision that it should have rendered.
For these reasons, the Commission's appeal is allowed and its decision is upheld.
The decision rendered by the Board of Referees in this case on November 20, 2003 is rescinded.
André Quesnel
UMPIRE
Montreal, Quebec
March 2, 2004