Date: 20040625
Docket: A-129-03
Citation: 2004 FCA 251
CORAM: DESJARDINS J.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
and
BLAIR BOLAND
Respondent
Heard at St. John's, Newfoundland and Labrador, on June 25, 2004.
Judgment delivered from the Bench at St. John's, Newfoundland and Labrador, on June 25, 2004.
REASONS FOR JUDGMENT BY: DESJARDINS J.A.
Date: 20040625
Docket: A-129-03
Citation: 2004 FCA 251
CORAM: DESJARDINS J.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
and
BLAIR BOLAND
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at St. John's, Newfoundland and Labrador, on June 25, 2004)
DESJARDINS J.A.
[1] We are all of the view that the Umpire erred in dismissing an appeal by the Commission from a decision of the Board of Referees. The Umpire confirmed the Board which found that the respondent was available for employment within the meaning of subsection 18(a) of the Employment Insurance Act S.C. 1996c. 23 (the Act), despite the fact that he was enrolled in a full-time course of instruction not referred to by the Commission.
[2] Subsection 18(a) of the Act reads:
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Disentitlement to Benefits Availability for work, etc.
18. A claimant is not entitled to be paid benefits for a working day in a benefit period for which the claimant fails to prove that on that day the claimant was
(a) capable of and available for work and unable to obtain suitable employment;
... |
Inadmissibilité aux prestations Disponibilité, maladie, blessure, etc.
18. Le prestataire n'est pas admissible au bénéfice des prestations pour tout jour ouvrable d'une période de prestations pour lequel il ne peut prouver qu'il était, ce jour-là :
a) soit capable de travailler et disponible à cette fin et incapable d'obtenir un emploi convenable;
...
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[3] The respondent was employed as a security guard. At the same time, he was enrolled in a three-year course of study, from 9:00 a.m. to 5:00 p.m. every weekday except on Friday, when he terminated at noon. His employment ended following a shortage of work. His application for benefits was approved for a reasonable period of time based on his previous history of work while attending a course of study. He received benefits for a period of four months but was unable to find work. He was informed that, if he could not maintain his pattern of work, he would not be entitled to benefits.
[4] It is clear to us that the respondent was therefore not able to rebut the presumption described in the case of Landry v. Canada (Deputy Attorney General), (F.C.A.) [1992] F.C.J. No. 965, according to which a person involved in a course of full-time study is generally not available for work within the meaning of the Act.
[5] Nor did he meet the criteria of availability set out in the case of Faucher v. Canada (Employment and Immigration Commission), [1997] F.C.J. No. 215 (F.C.A.).
[6] The term "availability" is not defined in the Act. It is a question of fact which comprises three necessary criteria. A claimant must demonstrate his desire to return to the labour market as soon as a suitable job is offered; his desire must be expressed through efforts to find a suitable job; and he must not set personal conditions that might unduly limit his chance of returning to the labour market.
[7] None of these criteria are present in the case at bar. The respondent did not make himself available for work during regular hours. Nor was it sufficient to limit his job search to a particular field, namely security.
[8] The application for judicial review will be allowed, the decision of the Umpire will be set aside and the matter will be returned to the Chief Umpire or to his designate for a redetermination on the basis that the respondent was unavailable for work within the meaning of subsection 18(a) of the Act.
(s) "Alice Desjardins"
J.A.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-129-03
STYLE OF CAUSE: ATTORNEY GENERAL FOR CANADA
v. BLAIR BOLAND
PLACE OF HEARING: St. John's, Newfoundland and Labrador
DATE OF HEARING: June 25, 2004
REASONS FOR ORDER OF THE COURT (Desjardins, Nadon, Pelletier JJ.A.)
RENDERED FROM THE BENCH BY: Desjardins, J.A.
APPEARANCES:
Ms. Melissa R. Cameron for the Applicant
Mr. Blair Boland Respondent on his own behalf
SOLICITORS OF RECORD:
Mr. Morris Rosenberg for the Applicant
Deputy Attorney General of Canada
Mr. Blair Boland Respondent on his own behalf
St. John's, NL