Date: 20040917
Docket: A-670-02
Citation: 2004 FCA 304
CORAM: DESJARDINS J.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
and
COLIN RIDEOUT
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 OF THE COURT BY: PELLETIER J.A.
Date: 20040917
Docket: A-670-02
Citation: 2004 FCA 304
CORAM: DESJARDINS J.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
and
COLIN RIDEOUT
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at St. John's, Newfoundland and Labrador, on June 25, 2004)
[1] We are all of the view that the application for judicial review should be allowed.
[2] The Umpire found that the respondent was available for work even though he was engaged in a full-time course of studies. The test of availability for work is a question of law; its application is a question of mixed law and fact. We are of the view that the Umpire erred in law in that he failed to apply one element of the test for availability as set out in Faucher v. Canada, (1997), 147 D.L.R. (4th) 574 (F.C.A.), namely the absence of conditions which limit a claimant's availability for work. His decision is therefore reviewable on a standard of correctness.
[3] There is a rebuttabe presumption of unavailability for work when a claimant is engaged in full-time studies. The presumption may be rebutted by a history of full-time employment while studying but the respondent had no such history. The fact that he was only available for work two days per week plus weekends was a limitation on his availability for full-time work. The Umpire overlooked this element in concluding that the respondent was available for work. As for the respondent's attempts to find employment, we note that, with one exception, all of the claimant's job inquiries were made after he had been contacted by the Commission with respect to his availability.
[4] The application for judicial review will be allowed, the decision of the Umpire will be set aside and the matter will be referred back to the Chief Umpire or to his designate for a redetermination on the basis that the respondent was not available for work within the meaning of subsection 18(a) of the Employment Insurance Act.
"J.D. Denis Pelletier"
J.A.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-670-02
STYLE OF CAUSE: ATTORNEY GENERAL FOR CANADA
v. COLIN RIDEOUT
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: Pelletier J.A.
APPEARANCES:
Ms. Melissa R. Cameron for the Applicant
Mr. David Sinnott for the Respondent
SOLICITORS OF RECORD:
Mr. Morris Rosenberg for the Applicant
Deputy Attorney General of Canada
Gittens & Associates for the Respondent
St. John's, NL