EMPLOYMENT INSURANCE |
Canada (Attorney General) v. Primard
A-683-01
2003 FCA 349, Létourneau J.A.
25/9/03
6 pp.
Applicant contesting, by way of application for judicial review, decision by Umpire dismissing appeal by Employment Insurance Commission (Commission) against decision by Board of Referees--Board finding respondent had proved availability for work despite return to school (full year, from Monday to Friday, for 23 hours per week, plus about 5 to 6 hours per week for assignments)--Board of Referees finding claimant proved availability by job searches, possibility of taking evening part-time courses--Erred in law on concept of work availability in situations of return to studies--In Canada (Attorney General) v. Whiffen (1994), 113 D.L.R. (4th) 600 (F.C.A.), Marceau J.A. defined concept of availability: "Availability is usually described, in the case law, either as a sincere desire to work demonstrated by attitude and conduct and accompanied by reasonable efforts to find a job, or as a willingness to reintegrate into the labour force under normal conditions without unduly limiting one's chances of obtaining employment"--In fact, respondent indicated work availability restricted to evenings, weekends--This explained lack of success in obtaining employment--Board of Referees overlooked element of jurisprudential definition of concept of availability, namely claimant shall not fix "personal conditions that might unduly limit the chances of returning to the labour market"--Respondent confirmed not available for work, but could become available if found employment--Board of Referees read immediate availability into what was, in fact, absence of availability and, at best, possible availability, also conditional--Further, Board of Referees, gave little, if any, weight to fact respondent did not have prior work-study experience--Also failed to consider, in analysis of availability, fact respondent had student loan, conditions of loan did not authorize her to work--Called upon to review Board of Referees' decision, Umpire did not disapprove of Board's failure to consider decisive factors that it should have taken into consideration in analysis of respondent's availability--Further, Umpire erred in regarding very definition of concept of availability as straightforward question of fact to be assessed by Board of Referees, question with respect to which could not substitute discretion for that of Board--Not only was intervention warranted, he had obligation to do so in order to correct decisive error in law that was basis of entire dispute--Application allowed.