CUB 69183

Guy Goulard, Umpire

The claimant filed a benefit claim effective November 16, 2003. The Commission then determined that the claimant had voluntarily left his employment without just cause. Consequently, the Commission imposed an indefinite disqualification as of November 16, 2003. The Commission also determined that the claimant did not prove that he was available for work because he did not look for employment during his benefit period. A disentitlement was therefore imposed as of November 16, 2003 in accordance with section 18(a) of the Employment Insurance Act.

The claimant appealed from the Commission's decisions to a Board of Referees, which allowed the appeal. The Commission appealed from the Board of Referees' decision to the Umpire. The appeal was heard at Montreal, Quebec, on September 6, 2007. The claimant attended the hearing and was represented by counsel.

The facts in the docket are summarized below. When filing his benefit claim on November 24, 2003, the claimant submitted two Records of Employment indicating that he worked for the Department of National Defence from March 18, 1999 to August 20, 2003, when his contract ended, and for a technology employer from September 2, 2003 to November 12, 2003. In his benefit claim, the claimant indicated that he had left his last employment to undertake studies recommended by an employment counsellor and authorized by Emploi Québec. He also indicated that because he was taking the authorized course, he was not available for work.

In Exhibit 9, the claimant explained that after losing his employment in July 2002, he had had a benefit period established that was to end in July 2003. He had asked Emploi Québec for approval to take a course. After being evaluated, he was referred for an emergency medical technician course that was scheduled to begin in November 2003 (Exhibit 12-1). The claimant told an Emploi Québec officer that before his course began, he managed to find a three-month contract position with the Canadian army; he argued that the Emploi Québec officer told him that he could accept the position and would have to report his earnings. At the end of the contract, the claimant found other temporary employment with a telecommunications employer while waiting to return to school. When he was informed of his course start date, he left his employment to take his course.

The claimant maintained that he was taking a training course for which he had been referred and should not have to show just cause for leaving his employment or prove that he was available pursuant to section 25(a) of the Employment Insurance Act:

25.(1) For the purposes of this Part, a claimant is unemployed and capable of and available for work during a period when the claimant is

(a) attending a course or program of instruction or training at the claimant's own expense, or under employment benefits or similar benefits that are the subject of an agreement under section 63, to which the Commission, or an authority that the Commission designates, has referred the claimant; or attending a course or program of instruction or training at the claimant's own expense, or under employment benefits or similar benefits that are the subject of an agreement under section 63, to which the Commission, or an authority that the Commission designates, has referred the claimant; or

The facts that led the Commission to decide that section 25(a) of the Act could not apply to the claimant are summarized below.

In December 2003, when the claimant's request for additional support was being evaluated, he reported that he had worked in the fall of 2003. Emploi Québec thus determined that the claimant had tried to hide the fact that he was working by providing a different Social Insurance Number than the one he had indicated on his Records of Employment. Therefore, Emploi Québec took the view that if the claimant had been working when it had approved him for referral to a course in November 2003, he would not have been referred. On the basis of this information, the Commission gave the decisions that are currently under appeal.

In an affidavit (Exhibit 22), the claimant described the circumstances that gave rise to the presence of two Social Insurance Numbers (SINs) in his files. The affidavit reads as follows:

[Translation]

I, the undersigned, domiciled and residing at X ^* in the city and district of Montreal solemnly affirm the following:

1. I arrived in Canada on December 28, 1991;
2. When I arrived in Canada, I applied for refugee status, and a temporary SIN was issued to me;
3. At that time, my name was X ^*;
4. In August 1992, I obtained permanent resident status and was issued Social Insurance Number X ^*;
5. In October 1995, I became a Canadian citizen;
6. In the fall of 1995, I applied to have my name changed and my request was accepted around March 1996, when my name became X ^*;
7. When my name changed, given that I had recently received my Canadian citizenship, I went to the Human Resources and Social Development Canada office to notify the department of my name change, and a representative asked me to complete a form, to which I attached proof of my name change;
8. Approximately one month later, in April or May 1996, I received a new Social Insurance Number, X ^*;
9. When I received my new social insurance card bearing the X ^* number, I assumed that my old card with the X ^* number had been cancelled and that I should no longer use it;
10. In 1996, I filed an Employment Insurance benefit claim, and since I did not have any financial resources, I requested emergency financial help through social assistance while waiting for my first benefit payment. On the social assistance application, I gave X ^* as my name and X ^* as my Social Insurance Number;
11. In 2000, while I was working for the Quebec government, specifically the X ^* Commission, investigators from Human Resources and Social Development Canada came to see me because cross-checking of electronic data had revealed that I had two Social Insurance Numbers since the X ^* number had not been cancelled in 1996 when I had been issued the new X ^* number;
12. On July 25, 2002, I received a letter from Human Resources and Social Development Canada informing me that from that point forward, I was to use the X ^* number and that the X ^* number had been cancelled;
13. In early April 2003, I called a local employment centre (LEC) to find out if a program existed through which I could train to become an ambulance attendant;
14. At that time, I spoke with an LEC officer, X ^*, who asked me if I had previously received social assistance;
15. I told the LEC officer that I had previously received social assistance, and she scheduled a meeting for April 28, 2003;
16. On April 28, 2003, I met with the officer of the LEC;
17. The LEC officer had my old social assistance file with her and never asked me for my SIN, and I never thought to tell her that the SIN in my file had been cancelled;
18. At the time of the meeting, I was not working but told the LEC officer that, on my own initiative, I had signed a contract with the Canadian Armed Forces and would be working for three months in the summer of 2003;
19. The LEC officer said that it was not a problem but asked me to send her my pay stubs because my earnings could affect the amount of money allocated to me during the training course;
20. All the facts outlined in this affidavit were discussed before the Board of Referees;
21. All the facts alleged in this affidavit are true.

The claimant attended the Board of Referees' hearing and was represented by counsel. The Board examined the evidence and allowed the claimant's appeal for the following reasons:

[Translation]

The claimant's explanations clearly show that an administrative error occurred with the issuing of his SIN.

Emploi Québec made a mistake with the SIN used, and none of the responsible individuals verified the claimant's SIN with him.

After the claimant's logical and credible explanation of the facts and the sequence of events leading to the SIN mix-up, the Board noted that in Exhibit 10, a referral to a course had been made.

Consequently, the Board of Referees finds that section 25 of the Act is applicable (Exhibit 23 added to the docket).

On appeal, the Commission argued that the Board of Referees had erred in fact and in law by finding that the claimant had established just cause for leaving his employment and availability for work under sections 29 and 18 of the Act. The Commission submitted that the Board of Referees could not disregard Emploi Québec's statement that its approval of the claimant's course had been based on false or incomplete information and that, as a result, section 25 of the Act could not apply to the claimant. The Commission pointed out Emploi Québec's policy that a person who is working cannot be referred to a training program and indicated that when the claimant filed his claim in November 2003, he was working and thus, could not be referred. He therefore had to establish just cause for leaving his employment as well as his availability for work, which he did not do within the meaning of the Act because he had left to take a full-time course, thereby making him unavailable for work.

The undisputed evidence in the docket established that the claimant had received approval to take his course in April 2003. If the program of study had begun at that time, there would not have been any problem. During the period before his course began, the claimant first found a job with the Canadian army and reported it to Emploi Québec, which told him that there was no problem. When that employment ended, the claimant found another job while waiting for his course to begin. He assumed that doing so was acceptable since he had been told that there was no problem with his employment with the Canadian army. With respect to the fact that he did not report his employment with the telecommunications employer and the fact that he had two SINs, the claimant gave a very credible explanation, which the Board of Referees accepted. Nothing in the docket indicated that the claimant had been told that he should have known that he could not be authorized to take a course if he worked after his three-month contract ended or when he signed the official agreement with Emploi Québec.

The Board could therefore find, on a balance of probabilities, that section 25 of the Act could apply to the claimant given that since his course began, he had reason to believe that he had been referred to the course.

The case law in A-547-01, A-600-93, A-115-94, A-255-95 and A-97-03 holds that an Umpire cannot substitute his or her opinion for that of a Board of Referees, unless the Umpire feels that the Board's decision was made in a perverse or capricious manner or without regard for the material before it.

In A-547-01, Létourneau J. indicated that an Umpire's function is limited "to deciding whether the view of facts taken by the Board of Referees was reasonably open to them on the record."

Furthermore, in CUB 43808, Marin J. wrote the following:

The Board is the trier of fact, and an Umpire does not easily trample upon such a finding as it had the best opportunity of observing witnesses, their demeanour and behaviour under questioning.

I cannot find that the Board of Referees made an error. On the contrary, the Board's decision is entirely consistent with the evidence submitted and the relevant statutory provisions as interpreted in the case law.

Consequently, the appeal is dismissed.

Guy Goulard

UMPIRE

OTTAWA, Ontario
September 21, 2007

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