CUB 61554

J.E. DUBÉ, Umpire

The Commission is appealing from the decision of a Board of Referees overturning a decision by the Commission to the effect that the claimant had not accumulated sufficient hours of insurable employment to file a claim for benefits.

The central question here is to determine the claimant's normal place of residence, ie, Moncton, N.B., where he worked, or Leech, N.B., the village he was from.

The answer is important because the unemployment rate in the Moncton economic region, ie, 7.7%, would mean he did not qualify for benefits, while the higher unemployment rate in his native village of Leech would make him eligible.

The facts in the docket indicate that the claimant filed an initial claim for benefits on March 13, 2003 at the Moncton office. In his claim, he indicated that his normal place of residence was the same as his mailing address, ie, Moncton. Two records of employment attached to his application gave the claimant's address as X, ^* Moncton, N.B., the same address indicated on his claim with respect to availability.

On March 28, 2003, the claimant requested a change to his docket indicating that he was living with his parents in Leech in the Tracadie area. He added that he had rented an apartment in Moncton for work purposes. He submitted his driver's license, issued in November 2002, which indicated that his address was in Leech. He also submitted documents associated with his tax returns for 2000 and 2001, which were sent to him on X ^* in Leech.

In a subsequent interview with the Commission, the claimant stated on April 23, 2003 that he had a lease and was sharing his apartment in Moncton with a roommate. He added that he had returned to Leech a few weeks after filing his claim for benefits and was travelling between Leech and Moncton to look for work. He indicated he would shortly be returning to Moncton, where he had found a job that would begin in May. To accommodate the claimant, the Commission changed his mailing address from Moncton to Leech and advised him in writing in Leech on April 25, 2003 that no changes had been made to the original decision.

Before the Board of Referees, the claimant stated he was working in Moncton, where he had taken an apartment with another worker and that his primary place of residence was in Tracadie (Leech). The evidence in the docket shows that the Commission's letters were addressed to Leech, N.B. The Board of Referees therefore concluded that the claimant's place of residence was Leech, N.B.

Subsection 17(1)(a) of the Regulations state:

52.(1) Subject to subsection (2). the regional rate of unemployment that applies to a claimant is the average of the seasonally adjusted monthly rates of unemployment for the last three month period for which statistics were produced by Statistics Canada immediately preceding the week referred to in subsection 9(1) of the Act:

(a) for the purpose of applying subsections 6(2) and 11(2) and Part VIII of the Act, for the region in which the claimant was ordinarily resident in that week.

It is therefore necessary to determine the meaning of the expression "ordinarily resident," which is not defined in legislation. Case law serves to clarify the situation.

On August 20, 1993, in McQuew (CUB 21968), Judge Strayer set out the following fundamental principles:

The test of where one is "ordinarily resident" involves a consideration of both subjective and objective facts. Further, that test must be applied to the situation which existed in the relevant week, namely in this case the week prior to the application for benefits.

On June 26, 1998, Judge Rothstein, in Cusick (CUB 39885A) issued the following finding with regard to a claimant from Ottawa who was working in Kingston:

I think a person may only have one place where he or she is ordinarily resident at one time. In this case, the evidence is overwhelming that this was Ottawa. Staying in a boarding hours during the week in Kingston does not qualify as a place where a person is ordinarily resident. The place where the respondent was ordinarily resident was Ottawa.

On September 10, 1999, Judge Forget ruled on the appeal of a claimant who had claimed that his residence was that of his parents in Edmundston, although he worked in Shediac Bridge, where he had had a home built with a loan of over $100,000.00. The Umpire confirmed the Board's decision that the claimant's normal place of residence was Shediac Bridge and not Edmundston.

This was not the case for Mr Richardson, who rented an apartment with a friend in Moncton to be nearer his work. He returned to his parents' residence after losing his job in Moncton. It should be noted that section 17 of the Regulations draw a clear distinction between the claimant's place of work and the location of the claimant's normal place of residence. The fact that a claimant works in Moncton does not necessarily mean the claimant is a normal resident of that city. He might come from one of the surrounding areas and be a normal resident of that area.

In addition, section 17, when taken as a whole, is in the claimant's favour. As an example, subsection 17(2) specifies that where a claimant referred to in paragraph 1(a) ordinarily resides so near to the boundaries of more than one region that it cannot be determined with certainty in which region the claimant resides, the regional rate of unemployment that applies to that claimant is the highest of the regional rates that apply in respect of each of those regions. In other words, the rate that is most favourable to the claimant. The same applies to subsection 17(3), which specifies that where a claimant referred to in paragraph 1(b) was last employed in insurable employment in Canada so near to the boundaries of more than one region that it cannot be determined with certainty in which region the claimant was employed, the regional rate of unemployment that applies to that claimant is the highest of the regional rates that apply in respect of each of those regions. It therefore would appear that the legislator was indicating that in cases of doubt, the claimant should be favoured.

The reason for the Board's decision is limited to this paragraph:

[Translation]

The claimant said he worked in Moncton but that his normal place of residence was Tracadie. The evidence in the docket shows Exhibit 7-3 and letters from the Commission were all addressed to Leech, N.B. (Exhibits 9-2 and 11).

The term "normal place of residence" was used by the legislator to distinguish a customary place of residence from a temporary one. A young man who normally lives with his parents is living where he works on a temporary basis until he moves away to settle elsewhere. This was the Board's finding when if decided that the claimant's "normal place of residence" was his parents' home in Leech (Tracadie region).

Under the circumstances, there are no grounds for rescinding the decision of the Board of Referees, which did not err in law and did not base its decision on an erroneous, absurd, or arbitrary finding of fact or did not take into account the facts brought to its attention.

The Commission's appeal is denied.

J.E. DUBÉ

Umpire

OTTAWA, Ontario
September 8, 2004

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^* Protected information in accordance with Part 4 of the Department of Human Resources and Skills Development Act.