CUB 30987
TRANSLATION
IN THE MATTER OF THE Unemployment Insurance Act
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IN THE MATTER of a claim for benefit by
MICHEL FAUCHER
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IN THE MATTER of an appeal to the Umpire by the Claimant
from the decision of a Board of Referees given at
Quebec City, Quebec, on May 11, 1993
CORRESPONDING FEDERAL COURT DECISION: A-56-96
DECISION
ROBERGE J
The claimant appeals a unanimous decision rendered by the Board of Referees on May 11, 1993, upholding the Commission's decision and dismissing the claimant's appeal.
On February 24, 1993, the Commission, in follow-up to an claim for benefit by the claimant, determined that the claimant was not entitled to unemployment insurance benefits as of December 21, 1992, because he had not proved that he was available for work.
The case of claimant Faucher is similar to that of Denis Poirier that was submitted to me immediately after this case. That claimant does not present different arguments; the only difference between the two cases is the dates on which the events occurred.
According to the claimant's unemployment insurance claims (Exhibit 2), the claimant worked for Toitures Falardeau as a roofer from 1986 to September 1992. He voluntarily left this employment. Subsequently, with other persons, including Denis Poirier, the claimant formed a company called "Multi-Toits Inc"; he reported having worked for this company from September 21, 1992, to October 23, 1992; his benefit claim is dated January 8, 1993.
In Exhibit 3, a three-page document which is the claimant's report taken by a Commission employee, the claimant indicates that he went into business for himself in October 1992. He owned 25% of the shares in the new company, Denis Poirier owned 25%, and a Richard Laliberté owned 50%. From the time the company began operating, it has had only one contract - with Mil Davie - that lasted about 6 weeks.
The main part of the claimant's report indicates that his intention was to make his business his principal means of livelihood, but he has not worked since October 1992 because Poirier and he worked only on construction sites. He reports that he is available to another employer, that he would have accepted another job if someone had offered him one, but he has not taken any steps to find work since October because there is no work in the winter. He is waiting for the month of April and because, if [sic] there is no work in his company, he will look elsewhere.
It was on the basis of these facts that the Commission came to its decision, and these facts were also the basis for the Board of Referees' decision. Before the latter, the claimant indicated that he had done other searches by telephone with certain roofing contractors, his union and the Comité de la construction du Québec, but he did not do anything else.
The claimant placed importance on the fact that he owns only 25% of the shares in the company. This is a collateral fact; in effect, regardless of the number of shares he owns, the issue is one of availability.
By wishing to work mainly for his company and by seeking employment only in his particular field of roofer, the claimant is clearly restricting his availability.
The claimant argues in his notice of appeal that the Board of Referees made errors of fact, an error in law and a mixed error of law and fact. In short, he refers to paragraphs 80(b) and (c) of the Unemployment Insurance Act.
I have carefully reviewed the claimant's entire file, as well as the precedents cited by both sides. I find that the Board of Referees made no error in law that would lead me to reverse its decision. Also it did not base its decision on one or more erroneous findings of fact that it made in a perverse or capricious manner or without regard for the material before it.
The Board of Referees had sufficient facts before it to arrive at the finding it did.
It is also appropriate to refer to the Federal Court of Appeal decision in Nellie Roberts (A-595-84); MacGuigan J, who rendered the decision for the Court, writes, on page 6:
In our view the proper test for an Umpire to apply under subsection 95(c) is whether there was any evidence upon which the Board of Referees could have found as they did or whether they made any mistake of principle.
In the present case, it is clear that the Board of Referees did not err and that it administered the law correctly. It certainly had evidence before it in the record on which it based itself in rendering its decision.
In the circumstances, the claimant's appeal is dismissed and the Board of Referees' decision is upheld.
GABRIEL ROBERGE
UMPIRE
Quebec City, Quebec
August 29, 1995