Employment Insurance (EI)

Persons in attendance

The claimant attended the hearing with his legal representative.

Decision

[1] The Tribunal dismisses the claimant’s appeal and finds that the claimant was not available for work while attending a full-time training course.

Introduction

[2] The claimant made an initial claim for benefits on September 23, 2013 (Exhibit GD3-11). On December 12, 2013, the Canada Employment Insurance Commission (the “Commission”) decided not to pay the claimant benefits effective October 8, 2012, because he was attending a training course on his own initiative and was unable to demonstrate that he was available for work (Exhibit GD3-21). Therefore, on January 7, 2014, the claimant made a request for reconsideration to the Commission (Exhibit GD3-23), which upheld its initial decision in its entirety in its reconsideration decision of February 7, 2014 (Exhibit GD3-27). The claimant therefore appeals the Commission’s reconsideration decision to this Tribunal, maintaining that the decision erred in fact and in law (Exhibit GD2).

Type of hearing

[3] The hearing was held for the reasons set out in the notice of hearing (Exhibit GD1-1).

Issue

[4] The Tribunal must determine whether the claimant complied with the requirements of paragraph 18(1)(a) of the Employment Insurance Act (the “Act”), namely, whether the claimant was available for work while attending a full-time training course.

Applicable law

[5] Subsection 18(1) of the Act provides 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:

1. (a) capable of and available for work and unable to obtain suitable employment;
2. (b) unable to work because of a prescribed illness, injury or quarantine, and that the claimant would otherwise be available for work; or
3. (c) engaged in jury service.

[6] In Faucher v. Canada (Attorney General) (A-56-96), the Federal Court of Appeal set out the three factors to be considered when determining whether a claimant is available for work:

1. 1. the desire to return to the labour market as soon as a suitable job is offered;
2. 2. the expression of that desire through efforts to find a suitable job; and
3. 3. not setting personal conditions that might unduly limit the chances of returning to the labour market.

[7] The question of whether the claimant was available for work is a question of fact that is based on an assessment of the evidence as interpreted by the case law (Faucher v. Canada (Attorney General) (A-56-96), Canada (Attorney General) v. Bois (2001 FCA 175) and Faucher & Poirier v. Canada (Attorney General) (A-57-96)).

[8] The decision in Canada (Attorney General) v. Cyrenne (2010 FCA 349) indicates that there is a presumption of non-availability in the case of persons enrolled in a full-time training course. However, this presumption of fact can be rebutted through proof of exceptional circumstances.

[9] The presumption of non availability of a person enrolled in a full-time training course can be rebutted if the person demonstrates that they had previous experience of working full-time while attending school (Landry v. Canada (Attorney General) (A 719-91)).

[10] According to current case law (Canada (Attorney General) v. Renaud (2007 FCA 328)), the burden of proving availability is on the claimant.

Evidence

[11] The file contains the following documentary evidence:

1. (a) an initial claim for benefits dated September 23, 2013 (Exhibit GD3-11);
2. (b) proof that the claimant has been attending an auto mechanics course since October 8, 2013 (Exhibit GD3-15);
3. (c) proof that his course was not approved under an employment or skills development program (Exhibit GD3-14).

[12] The following evidence was submitted at the hearing:

1. (a) a fact sheet on the vocational auto mechanics program at the Centre Daniel Johnson in Montreal (Exhibit GD5-3);
2. (b) the schedule of the auto mechanics course for groups M52, M53 and M54 from April 25, 2014, to June 30, 2014 (Exhibits GD5-4 and 5);
3. (c) the list of hours worked at the SAQ between September 8, 2013, and April 6, 2013 (Exhibits GD5-6 and 7);
4. (d) a pay stub for the period from January 12, 2014, to January 16, 2014 (Exhibit GD5-8);
5. (e) the fact that he enrolled for his course in March 2013 and that the course is dispensed five days per week (hearing).

[13] The following evidence was submitted subsequent to a request by the Tribunal under section 32 of the Social Security Tribunal Regulations:

1. (a) that the claimant is an occasional claimant (Exhibit GD8-1);
2. (b) that the claimant received thirty-one weeks of regular Employment Insurance benefits during his benefit period in this case (Exhibit GD8-1);
3. (c) a comparative list of the payment history in the claimant’s file (Exhibits GD8-4 and 5).

Submissions of the parties

[14] The claimant submitted the following:

1. (a) that he was available for work, that he worked part time and that he was ready to [translation] “leave” his course (Exhibit GD2-4);
2. (b) that the rules of the institution did not allow the claimant to change his course schedule and that, if he had to do so, he would have to give up the course (Exhibit GD3-15);
3. (c) that his course obligations occurred outside his normal hours of work (Exhibit GD3-15);
4. (d) that he would change his schedule in order to accept employment (Exhibit GD3 16);
5. (e) that he is taking the auto mechanics course because he wants to work as a diesel mechanic for his current employer (Exhibit GD3-19);
6. (f) that if this course were to conflict with a full-time job, he would give it up, [translation] "depending on the circumstances” (Exhibit GD3-19);
7. (g) that he is ready to work 40 hours per week, Monday through Friday, as of 3:00 p.m. (Exhibit GD3-19);
8. (h) that he is not looking for work per se because he is still working for the SAQ (Exhibit GD3-19);
9. (i) that he works on call for the SAQ (Exhibit GD3-26);
10. (j) that, in December 2013, he submitted three job applications but has not submitted any more since then (Exhibit GD3-26);
11. (k) that he is ready to accept a job that pays $18.50 per hour, that he ideally would like to work evenings and that, if he were offered full-time work while attending his course, he would give up the course (Exhibit GD3-26);
12. (l) that, if an employer offered him a permanent job, he would try to negotiate the possibility of stopping work once the lay off at the SAQ was complete and that, if the employer refused, he would not accept the job, as the working conditions at the SAQ are very attractive (Exhibit GD3-26);
13. (m) that, when he is on call, he is notified that he may be required to work on the days the employer requires it (hearing);
14. (n) that he started his course on October 8, 2013 (hearing);
15. (o) that he did not change his availability with his employer since his course began (hearing);
16. (p) that he could work evenings and attend his course during the day (hearing);
17. (q) that, while it is not possible to change his course hours, it is possible to interrupt the course and resume it at a later time with another group (hearing);
18. (r) that he is available to work for the SAQ seven days a week, 24 hours per day, but that, because of his seniority, he works more frequently at night than during the day (hearing);
19. (s) that he would have left his course not for a minimum wage job, but for a job with adequate pay and guaranteed hours (hearing);
20. (t) that he conducted searches on the employment sites and searched more specifically for night jobs, but also for day jobs with suitable pay, but that nothing suited him (hearing);
21. (u) that the Commission gave him no deadlines or warnings telling him to broaden his job search (hearing);
22. (v) that he did not see the point of submitting a resumé for a jobs that offered insufficient salary or unsuitable work (hearing);
23. (w) that he was not assigned the claimant category that applied to him, but that he knew that, in his category, he had to look for jobs that pay wages starting at 70% of his previous wage (hearing);
24. (x) that his course was not “agreed to” by his employer because he needed the course in order to have access to the position (hearing).

[15] The Respondent submitted the following:

1. (a) that the claimant has been attending a full-time training course on his own initiative since October 8, 2013, Monday through Friday, from 7:30 a.m. to 2:30 p.m. (Exhibit GD4-3);
2. (b) that, although he stated that he would change his schedule to accept employment, the rules of his educational institution do not allow him to change his course schedule (Exhibit GD4-3);
3. (c) that, moreover, even though he stated that he was ready to leave his course, he maintained that he would examine a job’s potential before doing so (Exhibit GD4-4);
4. (d) that the claimant enrolled in the course so that he could obtain full-time regular employment with the Société des Alcools du Québec, his current employer, once he completes the course, and that the facts show that the claimant is unlikely to give up his training course to accept another job (Exhibit GD4-4);
5. (e) that the claimant has no history of working while attending school (Exhibit GD4-4);
6. (f) that, although the claimant stated that he was available to work 40 hours per week while attending his course, the fact remains that he is not looking for work because his employer reduced his work for a mere two weeks (Exhibit GD4-4);
7. (g) that the claimant stated that he was not looking for work at this time because he was still working for the Société des Alcools du Québec, and that, even with reduced hours of work, he is content with his part-time employment (Exhibit GD4-4);
8. (h) that the claimant is available for work only outside his course hours, that is, as of 3:00 p.m. (Exhibit GD4-4);
9. (i) that the facts clearly show that the claimant made no efforts to find employment since his course began (Exhibit GD4-4);
10. (j) that it maintains that the claimant failed to demonstrate that he made regular and sustained efforts to improve his situation by finding another job (Exhibit GD4-4);
11. (k) that the claimant thereby demonstrated that he is content with his part-time employment at the Société des Alcools du Québec (Exhibit GD4-4);
12. (l) that, as a general rule, claimants must be willing to seek and accept all permanent or temporary work with other employers (Exhibit GD4-5);
13. (m) that, by placing these restrictions, the claimant failed to demonstrate that he was available for work from the time his course started, namely, October 8, 2013, and that the facts on file show that the claimant’s primary intention is to pursue his studies so that he can work for his employer (Exhibit GD4-5).

Analysis

[16] The case of Cyrenne (2010 FCA 349) notes the existence of the presumption that a person enrolled in a full-time training course is not available for work. However, this presumption of fact may be rebutted by proof of exceptional circumstances. In Landry (A-719-91), the Court established that the presumption that a person enrolled in a full-time training course is not available for work may be rebutted.

[17] As stated in Bois (2001 FCA 175), the question of whether a claimant is available for work is a question of fact that is based on an assessment of the evidence. Further, as stated in Faucher (A-56-96), the availability required of a claimant pursuant to paragraph 18(1)(a) of the Act is determined by considering three factors.

First factor

[18] First, a claimant must demonstrate a desire to return to the labour market as soon as a suitable employment is offered. The claimant maintained before the Tribunal that he conducted searches using different job search engines and that, in any case, he had enrolled in the auto mechanics course, which began on October 8, 2013, well before he received Employment Insurance benefits.

[19] In the case before this Tribunal, the claimant was quite credible when he listed the websites and the company sites to which he considered submitting an application. Among other things, he layed out his employment needs in relation to his situation as a student and was subsequently able to clearly describe to the Tribunal his overall situation as a worker and job seeker. To this effect, the claimant explained that his course ran from 7:30 a.m. to 2:00 p.m. and that he normally worked from 3:30 p.m. to 2:00 a.m., Sunday through Thursday. The claimant explained to the Tribunal that he did not change his availability with his employer and that he was still available to work 24 hours per day, seven days a week, but that the shift he was most likely to work was invariably the night shift.

[20] In the Tribunal’s opinion, the claimant demonstrated a desire to return to the labour market as soon as a suitable employment was offered. Even though the claimant wants to start a new career at the SAQ, there are no facts in this specific case that prove that his desire to return to the labour market might have been undermined by his decision to return to school. In this regard, the claimant juggled his full-time regular work at the SAQ with his full-time mechanic’s course during a number of weeks.

[21] By demonstrating that he was able to both work and study on a full-time basis from fall 2013 to the 2013 holidays, the claimant showed that this personal decision did not compromise his desire to return to the labour market as soon as suitable employment was offered, as established in Faucher.

Second factor

[22] A claimant must also express the desire to return to the labour market through efforts to find a suitable job. In his submissions, the claimant stated that he conducted job searches. At the hearing, he quickly described the list of search engines he used. More specifically, the claimant placed great emphasis on simply searching for jobs via Internet sites, but not on submitting applications. The claimant stated that he came across many jobs that fell outside the strict definition of ‘suitable employment’ in his claimant category, namely, the category of occasional claimant according to the Connecting Canadians with Available Jobs initiative, which took effect on January 6, 2013. Furthermore, the claimant stated that, according to subsection 9.002(f) of the Regulations that refers to section 9.004, he did not find suitable employment from a financial perspective.

Suitable employment (Section 9.002 of the Regulations) as per the second factor set out in Faucher

[23] The Tribunal is of the opinion that section 9.002 must be seen as an analysis grid that all claimants must use to demonstrate throughout the exercise that they meet the criteria set out in subsections 9.002(a) to (f). In this regard, the sum of the criteria in section 9.002 is limited, and the Tribunal is of the opinion that these criteria are inextricably linked.

[24] In this case, the claimant stated that he sought but did not find suitable employment. While it is certainly plausible that the claimant may have searched for suitable jobs on Internet sites, as the Tribunal understands is required by the first factor, it is solely the claimant’s responsibility to prove that he did not find suitable employment. The tribunal in Faucher also found that it was solely the claimant’s responsibility to prove that he expressed the desire to return to the labour market through efforts to find suitable employment. In the case before this Tribunal, the claimant did not submit the list of jobs that he ruled out but very briefly explained, or the list of the specific characteristics of those jobs, or even the case by case reasons for rejecting them in direct connection with subsections (a) to (f) of section 9.002.

[25] Although the Tribunal acknowledges the claimant’s good credibility and desire to find suitable employment, it is reasonable to determine that it is solely the claimant’s responsibility to prove that he sought suitable employment and thus demonstrated the “expression of that desire” as per the second factor in Faucher. In his case, the claimant stated that he did not find suitable employment, but submitted no evidence to support this position.

[26] With respect to the application of the initiative, which refers directly to sections 9.001 and following of the Regulations, even though the Commission maintained that [translation] “claimants are required to seek and accept any full-time, part-time, evening, night or shift work as of the start of the established benefit period,” the Tribunal’s finds that this is not the case. In this regard, the Tribunal maintains that the initiative is part of a process where, for example, the exclusion of all suitable jobs or work schedules that are abnormal is not a valid consideration for ruling out certain job offers when searching for employment.

[27] Although section 9.002 in no way requires a claimant to accept any job at any cost, it is clearly unreasonable to maintain that it is the Commission’s duty to instruct the claimant to broaden his search within his claimant category in order to find suitable employment. The claimant need only refer to the individual responsibilities relayed to him when he made his claim for benefits (Exhibit GD3-5 and following in this case) to know the obligations related to his Employment Insurance claim and to understand that they were communicated to him at that time.

Identification of the claimant category

[28] With respect to the identification of the claimant category, the Tribunal is of the opinion that it is solely the Commission’s responsibility to identify a claimant’s category. Luckily in this case, the claimant did not make an error in this regard, but an error could have been detrimental to him. In fact, this Tribunal and higher courts have recognized that the only valid source of information on a specific claimant case is the Commission.

Summary

[29] Can the Tribunal find that the claimant expressed the desire to return to the labour market through efforts to find suitable employment? The Tribunal is of the opinion that it cannot. The claimant failed to demonstrate that he conducted an active and thorough job search to find suitable employment and failed to prove that the jobs he ruled out under section 9.002 were not suitable. It therefore appears difficult for the claimant to demonstrate that he made efforts to find suitable employment, regardless of what he considers to be suitable employment in his particular case.

[30] It should be noted that the Tribunal did not analyze the criterion of reasonable search set out in section 9.001, as Parliament clearly stated that the concept of reasonable and customary efforts applies only to the application of subsection 50(8) of the Act.

Third factor

[31] Lastly, a claimant must not set personal conditions that might unduly limit their chances of returning to the labour market. The Tribunal is of the opinion that the claimant set personal conditions that might unduly limit his chances of returning to the labour market by starting a training course.

[32] Relying on the decision in Landry (A-719-91), the Tribunal finds that the claimant failed to rebut the presumption of his non-availability due to his enrolment in a full-time training course effective October 8, 2013. In fact, the Tribunal must find that the three-month period during which the claimant juggled work and school does not meet the definition of [translation] “may be proven over time” as certain case law has held. The Tribunal is also of the opinion that the claimant does not meet the definition of exceptional circumstances as established in Cyrenne, since he failed to demonstrate exceptional circumstances that could rebut the presumption previously defined in this case.

Claimant’s normal schedule

[33] With respect to whether the Commission must take the normal schedule of the claimant’s previous employment into account to entitle him to receive benefits, the Tribunal is of the opinion that this is a limitative definition of the notion of “availability” and that the definition has no bearing on this case, since the claimant is technically available to work for his usual employer, the SAQ, 24 hours per day, seven days a week. Therefore, the claimant is able to work during all those hours, all year round. The more regular shifts that the claimant seems to complete at night are not limitative; rather, they are the result of specific circumstances, namely, that the most available shifts based on his seniority are night shifts, as he has stated, not shifts at other times of the day. The claimant cannot assert that his regular hours occur at night because he himself believes that he works on call and that his schedule could require him to work at any time, as needed by the SAQ.

Summary

[34] The Tribunal must analyze the three factors identified in Faucher (A-56-96), which must be considered in reaching a conclusion. A claimant is not necessarily obliged to meet the three factors for their availability to be assessed as consistent or not with the letter of the law. As the decision in Bois (2001 FCA 175) quite aptly establishes, the question of whether a claimant is available for work is a question of fact that is based on an assessment of the evidence as interpreted by the case law.

[35] In this case, the Tribunal finds that the claimant set personal conditions that might unduly limit his chances of returning to the labour market by starting a full-time course because he did not rebut the presumption that a person attending a full-time training course is not available.

[36] In this case, the Tribunal also finds that the claimant did not express the desire to return to the labour market through efforts to find suitable employment.

Conclusion

[37] The appeal is dismissed.