M. R. v. Canada Employment Insurance Commission

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Institution:
Social Security Tribunal decision - Appeal Division
Member:
Pierre Lafontaine
Hearing date:
October 22, 2015
Hearing type:
Teleconference
Between:
M. R. and Canada Employment Insurance Commission
Decision:
Appeal allowed
Decision date:
October 29, 2015
Reference number:
AD-14-465
Citation:
M. R. v. Canada Employment Insurance Commission, 2015 SSTAD 1270

Other decision(s) related to this appeal:

Decision

[1] The appeal is allowed and the matter is referred back to the General Division for a new hearing.

Introduction

[2] On July 18, 2014, the Tribunal’s General Division found that:

[3] The Appellant filed an application for leave to appeal to the Appeal Division on August 18, 2014. Leave to appeal was granted by the Appeal Division on February 11, 2015.

Form of hearing

[4] The Tribunal determined that this appeal would proceed by teleconference for the following reasons:

[5] The Appellant and his representative, counsel Kim Bouchard, attended the hearing. The Respondent was represented by Helena Kitova during the hearing.

The law

[6] Under subsection 58(1) of the Department of Employment and Social Development Act, the only grounds of appeal are that:

  1. (a) the General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
  2. (b) the General Division erred in law in making its decision or order, whether or not the error appears on the face of the record; or
  3. (c) the General Division based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.

Issue

[7] The Tribunal must determine whether the General Division erred in fact and in law in finding that the Appellant was not available pursuant to paragraph 18(1)(a) of the Act because he was attending a full‑time course.

Arguments

[8] The Appellant’s arguments in support of his appeal are as follows:

[9] The Respondent’s arguments against the Appellant’s appeal are as follows:

Standards of review

[10] The parties submitted, and the Tribunal agrees, that the Federal Court of Appeal has held that the standard of judicial review applicable to a decision of a Board of Referees (now the General Division) or an Umpire (now the Appeal Division) on questions of law is correctness (Martens v. Canada (AG), 2008 FCA 240) and that the standard of review applicable to questions of mixed fact and law is reasonableness (Canada (AG) v. Hallée, 2008 FCA 159).

Analysis

[11] As the Honourable Justice L’Heureux‑Dubé of the Supreme Court of Canada noted in Gagnon v. C.E.I.C., [1998] 2 S.C.R. 29, the provisions of the Employment Insurance Act are not a model of clarity. Trying to reconcile them sometimes requires an uncommon degree of dexterity.

[12] Under subsection 50(1) of the Act, a claimant who fails to fulfil or comply with a condition or requirement under the Act is not entitled to receive benefits for as long as the condition or requirement is not fulfilled or complied with.

[13] Subsection 50(8) of the Act provides that, for the purpose of proving that a claimant is available for work and unable to obtain suitable employment, the Commission may require the claimant to prove that the claimant is making reasonable and customary efforts to obtain suitable employment.

[14] The new section 9.001 of the Employment Insurance Regulations (“the Regulations”) provides as follows:

Reasonable and Customary Efforts

9.001 For the purposes of subsection 50(8) of the Act, the criteria for determining whether the efforts that the claimant is making to obtain suitable employment constitute reasonable and customary efforts are the following:

(a) the claimant’s efforts are sustained;

(b) the claimant’s efforts consist of

(i) assessing employment opportunities,

(ii) preparing a resumé or cover letter,

(iii) registering for job search tools or with electronic job banks or employment agencies,

(iv) attending job search workshops or job fairs,

(v) networking,

(vi) contacting prospective employers,

(vii) submitting job applications,

(viii) attending interviews, and

(ix) undergoing evaluations of competencies; and

(c) the claimant’s efforts are directed toward obtaining suitable employment.

[15] In its analysis of the Faucher criteria, the General Division found that the criteria for assessing reasonable and customary efforts set out in section 9.001 of the Regulations did not apply to the facts of this case because that section applies only for the purposes of subsection 50(8) of the Act.

[16] It is possible that Parliament deliberately failed to mention the application of paragraph 18(1)(a) in section 9.001 of the Regulations to preserve the courts’ flexibility in applying the three criteria developed in the case law when assessing a claimant’s availability for work (Faucher v. Canada (AG), A‑56‑96). Indeed, Parliament specifically provided for the application of paragraph 18(1)(a) of the Act in section 9.002 of the Regulations in determining what constitutes suitable employment.

[17] However, and with respect for the contrary opinion, the Tribunal is of the view that section 9.001 of the Regulations must be read in conjunction with subsection 50(8) and paragraph 18(1)(a) of the Act. Any contrary interpretation would lead to an absurd result.

[18] Subsection 18(1) of the Act states that 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.

[19] Subsection 50(8) of the Act provides that, for the purpose of proving that a claimant is available for work and unable to obtain suitable employment, the Commission may require the claimant to prove that the claimant is making reasonable and customary efforts to obtain suitable employment. Section 9.001 of the Regulations sets out the criteria for determining whether the efforts that the claimant is making to obtain suitable employment constitute reasonable and customary efforts.

[20] The effect of excluding paragraph 18(1)(a) from the application of section 9.001 of the Regulations would be that a claimant would have to prove to the Commission that the claimant is available for work and unable to obtain suitable employment based on the criteria set out in the Act and the Regulations while being subject to possibly different criteria before the Tribunal. Such an interpretation is illogical and inconsistent with the objective of the Act.

[21] To comply with what Parliament intended, the General Division, which is the arbiter of the facts, must assess a claimant’s availability for work on the basis of the three criteria developed in the case law in conjunction with the new provisions of the Regulations.

[22] On appeal, the Respondent has no objection to referring the matter back to the General Division for a de novo hearing. It submits that the Regulations do not require the Appellant to provide a list of the jobs ruled out, a list of the specific characteristics of those jobs or case‑by‑case reasons for rejecting them.

[23] The Tribunal is in fact of the opinion that, by finding that the new provisions required the Appellant to submit such a list, the General Division imposed on him a burden heavier than required by those new provisions and thus erred in law in interpreting the provisions in relation to section 18 of the Act.

[24] The matter should therefore be referred back to the General Division for a new hearing.

Conclusion

[25] The appeal is allowed and the matter is referred back to the General Division for a new hearing.

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