Employment Insurance (EI)

Persons in attendance

[1] The Appellant was present at the hearing, and represented herself. The Respondent was not present.

Decision

[2] The Member finds that the Appellant’s absence from Canada was justified as per Section 55 of the Employment Insurance Regulation (The Regulation), and she was available for work in accordance with Section 18 of the Employment Insurance Act (the Act).

Introduction

[3] The Appellant was in receipt of Regulation EI benefits. Between March 3 to 17 2014, she went to Ukraine to visit and bring back her mother from the Ukraine War situation. The Respondent determined that she was unavailable during that time, as per the letter of Decision dated March 23, 2014.The Appellant asked for a reconsideration of that decision. On May 23, 2014, the respondent maintained its decision, and an appeal was filed before this Tribunal.

Form of hearing

[4] The hearing was held by teleconference for the reasons mentioned in the Notice of Appeal.

Issue(s)

[5] As the Appellant was outside Canada between March 3 to 19 2014, was her situation one of the exceptions as per Section 55 of the Employment Insurance Act Regulations (the Regulation)?

[6] If her absence did fall within one of the exception as per Section 55 of the Regulations, was she available in accordance with Section 18 of the Employment Insurance Act (the Act)?

The law

[7] Section 18 of the Act:

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) incapable of work by reason of prescribed illness, injury or quarantine, and that the claimant would otherwise be available for work; or
3. (c) engaged in jury service.

[8] Subsection 37(b) of the Act:

Except as may otherwise be prescribed, a claimant is not entitled to receive benefits for any period during which the claimant

1. (b) is not in Canada

[9] Section 55 of the Regulations:

(1) Subject to section 18 of the Act, a claimant is not disentitled from receiving benefits for the reason that the claimant is outside Canada

(d) for a period of not more than seven consecutive days to visit a member of the claimant's immediate family who is seriously ill or injured;

(1.1) Only the periods set out in paragraphs (1)(b) and (d) may be cumulated during a single trip outside Canada, and only if the member of the claimant’s immediate family whom the claimant visits under paragraph (1)(d) is the person whose funeral the claimant attends under paragraph (1)(b).

(2) For the purpose of subsection (1), the following persons are considered to be members of the claimant's immediate family:

1. (a) ) the father and mother of the claimant or of the claimant's spouse or common- law partner;
2. (b) the spouse or common-law partner of the father or mother of the claimant or of the claimant's spouse or common-law partner;
3. (c) ) the foster parent of the claimant or of the claimant's spouse or common-law partner;
4. (d) a child of the claimant's father or mother or a child of the spouse or common- law partner of the claimant's father or mother;
5. (e) ) the claimant's spouse or common-law partner;
6. (f) ) a child of the claimant or of the claimant's spouse or common-law partner;
7. (g) a ward of the claimant or of the claimant's spouse or common-law partner; and
8. (h) a dependant or relative residing in the claimant's household or a relative with whom the claimant permanently resides.

Evidence

Documentary evidence

[10] There is little documentary evidence in the file, other than the Appellant’s initial application for benefit, which is not at issue. There is also at GD3-10 the questionnaire sent of the Appellant to explain her situation.

Oral evidence

[11] The Appellant testified at the hearing. She stated that her mother has a residency permit for Canada, and is also a citizen of Ukraine. Her mother was aging so a year ago she went to Lviv, in Western Ukraine to spend some time as she still has an ailing sister there, who suffered from a stroke.. When her mother went, she suffered from mild dementia. She lived on her own, but with some help. During the year, her health situation worsened. She now suffers from a more severe form of dementia and Alzheimer. She knows her own name, but cannot remember her daughter’s husband’s name, and knows her daughter’s name in about 80% of the time. She does not know which day of the week and does not know in which country she is. The Appellant is the only child of her mother. Her father passed away a few years ago.

[12] In 2014, the civil war broke out in Ukraine. The Appellant decided to visit her mother and bring her back to Canada. Her mother could not travel on her own considering her health situation and due to her cognitive problems. For example, she could not go to the bathroom on her own on the plane, and airline companies would probably have refused to take her onboard alone. There are now few flights to Lviv. The flight by LOT, the Polish company is the best one, with only one short stop in Warsaw. This flight was only available once a week. She admits being away from March 9 to 17, 2014.

[13] The Appellant testified also that while being in Ukraine, she kept constantly in touch with potential employer and the labour market. She had her mobile phone with her, stayed in touch through internet. She was also available to fly back within 48 hours to Canada through other routes and many connections. While for her mother a multiple connection was nearly impossible, in her own situation, it was very feasible. She considered herself available.

Submissions

[14] The Claimant submitted that:

1. a) She visited her mother who was seriously hill due to her dementia and Alzheimer condition, and that she could not travel on her own. She had to go to Lviv, Ukraine, to get her mother back from Ukraine who was under a state of War at that time.
2. b) She remained available during that 8 day period. She consulted employment opportunities during that time, kept constantly in touch with Canada through her mobile phone and internet.
3. c) While there was only one flight available to bring her mother back, there were many flights available to get herself back home quickly, should there had been a job offer or a job interview to attend.

[15] The Respondent submitted that:

1. a) The claimant disputes the Commission’s decision. Mrs. T. L. states her absence in March was caused by such unexpected and terrible reason as the war in Ukraine where her 84 years old mother, who is a resident of Canada, happened to stay at that time. She is her only one close relative so when the situation became serious she could not leave her there by herself in a troubled country. Because of her dementia she cannot travel on her own therefore she went to bring her to stay with her. She states she feels this was the right thing to do. She states after all our government spends a lot of money to evacuate Canadians from troubled zones. She paid all the expenses and they both returned home on the first available plane (many of them were cancelled). She only asks for EI payment in this situation because she did not go for vacation, it was an emergency (GD2-1 to GD2-6)
2. b) The Commission’s position regarding the absence from Canada. The Commission notes that the claimant’s entitlement for this benefit period was 40 weeks of benefits. She has been paid the full 40 weeks of benefits up to the week ending June 7, 2014. The non-payment of benefits for the period outside of Canada did not have any effect on her total entitlement that she was paid.
3. c) Except as otherwise prescribed by the legislation, a claimant is not entitled to receive employment insurance benefits for any period during which the claimant is not in Canada. The Commission submits that the claimant is subject to a disentitlement under subsection 37(b) of the Act because she was outside of Canada and the purpose of her trip does not meet the exceptions under Regulation 55.
4. d) The Commission submits that the jurisprudence supports its decision. The Federal Court of Appeal confirmed the principle that employment insurance benefits are not payable to those persons not in Canada except as specifically prescribed by the Regulations, see Canada (AG) v. Gibson, 2012 FCA 166 Canada(AG) v. Bendahan, 2012 FCA 237
5. e) The Court further confirmed that the onus is on the claimant to prove that her absence outside Canada met the exceptions prescribed by the Regulations, see Canada (AG) v. Peterson, A-370-95
6. f) The Commission’s position regarding the claimant’s availability: Availability is a question of fact, which should normally be disposed of on the basis of an assessment of the evidence. It is determined by analyzing three factors:
   • 1. the desire to return to the labour market as soon as a suitable job is offered;
   • 2. the expression of that desire through efforts to find a suitable job; and
   • 3. not setting personal conditions that might unduly limit the chances of returning to the labour market;
   • See (Boland 2004 CAF 251; Primard 2003 CAF 349; Bois 2001 CAF 175;
   • Faucher [A 56 96]; [A 57 96]; Whiffen [A 1472 92])
7. g) Availability also refers to a dynamic desire to work and not just to an expression of a passive state towards accepting work. Although the claimant indicated that she had made arrangements to be contacted for a job opportunity and that she could have returned within 48 hours if a job was offered her complete statement contradicts this. She states there is only one flight weekly from her hometown and when she was leaving she took the first available as a lot of flights were cancelled. Her availability is not proven.
8. h) The Commission submits that the jurisprudence supports its decision. The Federal Court of Appeal enumerated the criteria to be analyzed in assessing the evidence of a claimant’s availability, see Canada (AG) v. Bois 2001 FCA 175
9. i) Furthermore, the Court held that the burden on the claimant to prove availability is a statutory requirement of the legislation that cannot be ignored. In order to obtain employment insurance benefits a claimant must be actively seeking suitable employment, even if it appears reasonable for the claimant not to do so, see Canada (AG) v. Cornelissen-O’Neil, A-652-93; Lamirande v. Canada (AG), 2004 FCA 311 CUB 6175, A 512-07 This section states unequivocally that the burden to proving availability is upon the claimant, and that availability is to be proven for each working day. In A-613-81, the Federal Court of Appeal stated that a claimant could not impose conditions or limitations on the basis of his or her own personal circumstances. In that decision Le Dain J. wrote: “The question of availability is an objective one - whether a claim is sufficiently available for suitable employment to be entitled to unemployment insurance benefits - and it cannot depend on upon the particular reasons for the restrictions on availability, however these may evoke sympathetic concern”.

Analysis

[16] As the Appellant admitted that she was indeed away from Canada between March 9 to 17, 2014, subsection 37 b) of the Act applies as no benefit to claimants if they are outside Canada. However, there are exceptions to this principle in Section 55 of the regulations.

[17] An administrative tribunal such as the Social Security Tribunal has restrictive powers that are either determined by Parliament, of by the Federal Court of Appeal or the Supreme Court of Canada. The Tribunal has no powers to extend those exceptions beyond what is mentioned in Section 55 of the Regulations, which is extremely detailed. Therefore the Responded was justified when it stated that “war” was not an exception.

[18] However, the Tribunal is of the opinion that the Respondent did not consider all the exceptions contained in Section 55 of the regulations when it made its determination. In particular, Paragraph 55 (1) d) can potentially find its application here. This applies to a period of no more than 7 consecutive days to visit a member of the claimant’s immediate family who is seriously ill or injured.

[19] Subsection 55 (2) defines which persons are considered to be the claimant’s immediate family for the purposes of subsections 55 (1) and 55 (1.1). Paragraph 55 (2) (a) ) is where the mother is considered to be an immediate family member of the claimant. Therefore, the Appellant’s situation meets this criteria of subsection 55 (2).

[20] The question remains as to whether the Appellant’s mother’s health condition is “serious” as per Paragraph 55 (10 (d). While there were no medical reports filed, Alzheimer and dementia such as the one describe are definitely serious. The Appellant definitely “visited” her mother who was seriously ill, and therefore meets the criteria as per paragraph 55 (1) (d) of the Regulations.

[21] We now have to consider if the Appellant was available as per section 18 of the Act. As per Section 18 of the act, there are three factors to consider:

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

[22] The Respondent sated that the Appellant mentioned that she could not travel within 48 hours to get back to Canada should a job opportunity had occurred. The Appellant stated otherwise in her testimony. The Appellant confirmed that to bring her mother back she could only do this with one flight. But regarding her own speedy return should a job opportunity or interview had occurred, she could have come back within 48 hours. This distinction is important.

[23] Also, the Appellant did stay in touch through internet and her cell phone. Therefore, she remained in contact and was available as per the principle of Section18 of the act.

[24] The Respondent mentioned that since the Appellant was disqualified for those 7 days, and due to the fact that as a result the Appellant’s benefit were extended by the same time, she received a total benefit equal to the maximum she could have claim during her unemployment period, which was 40 weeks. The tribunal does not dispute this affirmation of the Respondent even if no evidence was filed, and it is possible that as a result, the Appellant may not receive more money.

[25] Had the Appellant found employment prior to her receiving her maximum benefit, her appeal may have been relevant, but since she received her maximum benefit, it may be a moot point.

[26] The Tribunal therefore is of the opinion that the Appellant was entitled to receive benefit between March 9 to 17 2014, as she met the criteria under Section 55 (1) (d) of the Regulation and Section 18 of the Act.

Conclusion

[27] The appeal is allowed.