Canada (Attorney General) v. Rideout, 2004 FCA 304

Date: 20040917

Docket: A-670-02

Citation: 2004 FCA 304

CORAM:        DESJARDINS J.A.

NADON J.A.

PELLETIER 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.

NADON J.A.

PELLETIER 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)

PELLETIER J.A.

[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. (4^th) 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