FRANÇAIS

	Date:
	February 14, 1997
	Docket:
	A-56-96, A-57-96
	Umpire's Decision:
	CUB 30987 / 30988

"TRANSLATION"

A-56-96 (CUB 30987)

MICHEL FAUCHER,

plaintiff,

- and -

CANADA EMPLOYMENT AND
IMMIGRATION COMMISSION,

- and -

ATTORNEY GENERAL OF CANADA,

defendants.

A-57-96 (CUB 30988)

DENIS POIRIER,

plaintiff,

- and -

CANADA EMPLOYMENT AND
IMMIGRATION COMMISSION,

- and -

ATTORNEY GENERAL OF CANADA,

defendants.

Hearing held at Québec, Quebec, on Friday, February 14, 1997.

CORRESPONDING CUB: 30988A

REASONS FOR JUDGMENT OF THE COURT
(Delivered from the bench at Québec, Quebec,
on Friday, February 14, 1997)

MARCEAU J.A.:

There are two applications for judicial review before the Court. They have been brought against two decisions of an umpire acting under the Unemployment Insurance Act, in respect of two similar cases heard before him at the same time and disposed of on common evidence. The two applications were again joined in this Court and heard at the same time. They involve two construction workers who specialize in installing and repairing roofs, and who carried on their trade together and found themselves in identical situations in relation to the Act; their claims for benefit were denied at the same time, on the ground that they had not proved that they were available.

We have concluded that both applications must be allowed. In our opinion, the umpire should have intervened and challenged the Commission's finding, which was upheld by the Board of Referees, that the claimants were not available.

We are of course fully aware that a claimant's availability is a question of fact, which should normally be disposed of on the basis of an assessment of the evidence, a function which is within the authority of the Board of Referees. However, in this instance we believe that the members of the Board, and the umpire after them, assessed the facts on the basis of a concept of availability that is not consistent with the concept defined by the Act, as it has been interpreted in the case law. There being no precise definition in the Act, this Court has held on many occasions that availability must be determined by analyzing three factors - the desire to return to the labour market as soon as a suitable job is offered, the expression of that desire through efforts to find a suitable job, and not setting personal conditions that might unduly limit the chances of returning to the labour market - and that the three factors must be considered in reaching a conclusion. On reading the reasons for decision of both the Board of Referees and the umpire, it appears that the third factor was the only one really given any weight, eclipsing the other two, and that the result was a conclusion that seems to have no real connection to the situation as it may be seen from all of the circumstances.

No one - not the members of the Board and not the umpire - has expressed any doubt as to the credibility of the claimants when they stated their continuing desire to find employment; nor has anyone challenged what they said about the searches they had conducted, which included any search that had any chance of success. The allegation against them is that when they, quite recently, formed their own small roofing business, and tried to develop that small business, they were limiting their employment opportunities. In what way? Because they were seeking contracts for their business at the same time as they were seeking employment for themselves, say the members of the Board; because they limited their chances of being re-employed by competitors who might have taken a dim view of their initiative, while at the same timing limiting themselves to the roofing repair business, says the umpire.

We do not believe that a finding that the claimants were not available can be made on such a narrow basis, particularly if we consider that they were found not to be available scarcely one month after the beginning of the period of unemployment, right in the middle of February when it can only be inevitable that most roofers will be unemployed.

We are of the opinion that the two applications for review must be allowed, the decisions a quo set aside and the two matters referred back to the umpire to be disposed of on the assumption that, in both cases, having regard to the facts found by the Board of Referees, the Board of Referees could not have confirmed the Commission's determination that the claimants were not available.

"Louis Marceau"

J.A.