Date: 20030925
Docket: A-683-01
Citation: 2003 FCA 349
CORAM: DESJARDINS J.A.
LÉTOURNEAU J.A.
NOËLJ.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
NATHALIE PRIMARD
Respondent
Hearing held at Québec, Quebec, September 17, 2003.
Judgment delivered at Ottawa, Ontario, September 25, 2003.
REASONS FOR JUDGMENT: LÉTOURNEAU J.A.
CONCURRED IN BY: DESJARDINS J.A.
NOËL J.A.
Date: 20030925
Docket: A-683-01
Citation: 2003 FCA 349
CORAM : DESJARDINS J.A.
LÉTOURNEAU J.A.
NOËL J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
NATHALIE PRIMARD
Respondent
REASONS FOR JUDGMENT
LÉTOURNEAUJ.A.
[1] The applicant is contesting, by way of an application for judicial review, a decision by an umpire dismissing the appeal by the Employment Insurance Commission (Commission) against a decision by a board of referees. In this decision dated January 26, 2000, the board found that the respondent had proved her availability for work despite her return to school. It is therefore appropriate to begin with a review of this first decision before turning to that of the umpire.
Analysis of the decision of the board of referees
[2] As is often the case in such matters, the decision of the board of referees is terse. The following salient facts are related.
[3] The respondent left her job because of a reorganization of the company. She applied for a student loan, which she obtained for her studies. She registered in a promising computer course, for which the cost of tuition and books was substantial: $11,011. These courses were intensive: a full year, from Monday to Friday, for 23 hours per week, plus about 5 to 6 hours per week for assignments.
[4] In her declaration dated November 21, 1999, the respondent indicated that she had registered in this course and that she intended to follow it diligently, full time. Further, the supplementary record filed in support of her claim for employment insurance benefits indicates that her availability for work is limited to evenings and weekends alone because of her heavy course schedule: Applicant's record, at pages 20 and 21. According to this declaration, her efforts to find employment were in vain.
[5] During the hearing of her case, on January 26, 2000, the respondent raised new facts that were accepted by the board of referees. First, she informed the board that she could take courses part-time, although the term would then be extended by about four months. Second, she stated that she could opt for this possibility if she found a job. She added that she checked job postings on the internet and in the newspapers every day. It is on this basis that the board of referees found that the claimant had proved her availability by her job searches and the possibility of taking her courses part-time, in the evening, three evenings a week.
[6] With respect, I believe that the board of referees erred in law on the concept of work availability in situations where there has been a return to studies. Further, as I will explain later, it also overlooked important evidence in the file that rendered its findings unreasonable: Maki v. The Employment Insurance Commission et al., A-737-97, June 16, 1998 (F.C.A.).
[7] In Attorney General of Canada v. Whiffen, A-1472-92, February 5, 1998 (F.C.A.), Marceau J.A. defines the concept of availability as follows:
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 somewhat analogous terms, he repeated what he had said the previous year in Faucher v. Canada (Employment and Immigration Commission), [1997] F.C.J. No. 215.
[8] As mentioned earlier, the respondent has indicated a work availability that is restricted to evenings and weekends alone. This undoubtably explains her lack of success in obtaining employment. The board of referees overlooked this element of the jurisprudential definition of the concept of availability, namely that a claimant shall not fix "personal conditions that might unduly limit the chances of returning to the labour market": Faucher v. Canada (Employment and Immigration Commission), supra.
[9] Evidence of the board of referees' misunderstanding of the notion of availability is also found in the significance and scope that it gave to the new fact raised by the respondent. It will be recalled that at the hearing, the respondent informed the board of referees that it was possible for her to attend her courses at night if she found employment. In other words, the respondent confirmed that she was not available for work, but that she could become available if she found employment. But the board of referees read an immediate availability into what was, in fact, an absence of availability and, at best, a possible availability, which was also conditional.
[10] Were it not for the error of law that it made with respect to the definition of the concept of availability, the board of referees could only have found that the evidence on the record established that the respondent was not available and that she had not rebutted the presumption that a full-time student is not available for work within the meaning of the Employment Insurance Act: Landry v. Canada (Deputy Attorney General), [1992] F.C.J. No. 965; Canada (Attorney General) v. Furey, [1996] F.C.J. No. 971.
[11] Further, the board of referees, gave little, if any, weight to the fact that the respondent did not have any prior work-study experience, if it did not disregard it entirely. It also failed to consider, in its analysis of availability, the fact that the respondent had a student loan and that the conditions of this loan did not authorize her to work: Applicant's record, exhibit 7-1, page 20, item 8 of the respondent's declaration.
Analysis of the umpire's decision
[12] Called upon to review the decision of the board of referees, the umpire did not disapprove of the board's failure to consider some decisive factors that it should have taken into consideration in the analysis of the respondent's availability.
[13] Further, the definition of the concept of availability involves a question of law: Vézina v. Attorney General of Canada, A-736-01, April 30, 2003 (F.C.A.); Faucher v. Canada (Employment and Immigration Commission), supra. The umpire erred in regarding the very definition of the concept of availability as a straightforward question of fact to be assessed by the board of referees, a question with respect to which he found that he could not substitute his discretion for that of the board. Not only was his intervention warranted, he had the obligation to do so in order to correct a decisive error in law that was the basis of the entire dispute.
Conclusion
[14] For these reasons, I would allow this application for judicial review without costs, I would set aside the decision of the umpire and I would refer the matter back to the chief umpire or an umpire designated by him, for redetermination on the basis that the Commission's appeal from the board's decision must be allowed.
"Gilles Létourneau"
J.A.
"I concur in this matter.
Alice Desjardins J.A."
"I concur.
Marc Noël J.A."
Certified True Translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A-683-01
STYLE OF CAUSE: THE ATTORNEY GENERAL OF CANADA v. NATHALIE PRIMARD
PLACE OF HEARING: QUÉBEC, QUEBEC
DATE OF HEARING: September 17, 2003
REASONS FOR JUDGMENT: LÉTOURNEAU, J.A.
CONCURRED IN BY: DESJARDINS, J.A.
NOËL, J.A.
DATE OF REASONS: September 25, 2003
APPEARANCES:
Carole Bureau FOR THE APPLICANT
Nathalie Primard ON HER OWN BEHALF
SOLICITORS OF RECORD:
Department of Justice - Canada FOR THE APPLICANT
Montréal, Quebec
Nathalie Primard ON HER OWN BEHALF
Saint-Georges, Quebec
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