Employment Insurance (EI)

Decision

[1] The appeal is allowed. The matter is returned to the General Division for reconsideration in accordance with these reasons.

Introduction

[2] Previously, a member of the General Division allowed the Respondent’s appeal against the previous determination of the Commission.

[3] In due course, the Commission filed an application for leave to appeal with the Appeal Division and leave to appeal was granted.

[4] On June 7, 2016, a teleconference hearing was held. The Commission and the Respondent appeared and made submissions

The law

[5] According to subsection 58(1) of the Department of Employment and Social Development Act, the only grounds of appeal are that:

1. (a) the General Division [or the Board] failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
2. (b) the General Division [or the Board] erred in law in making its decision, whether or not the error appears on the face of the record; or
3. (c) the General Division [or the Board] based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.

Analysis

[6] This case involves a determination of whether or not the Respondent was available for a short period beginning after her move to accompany her husband but before her employment began at the new location. It is not disputed that the Respondent had just cause according to the Employment Insurance Act to voluntarily leave her employment to make that move.

[7] Among other arguments, the Commission notes that the General Division member cited CUB 57793 to support his conclusion that the Respondent should be considered available because of the circumstances “surrounding her husband’s transfer and their subsequent move”. They submit that CUB 57793 has since been overturned, and that by following that decision that General Division erred in law.

[8] Unfortunately for the Respondent, the Commission is correct.

[9] In Canada (Attorney General) v. Cloutier, 2005 FCA 73, the Court (at paragraph 6) explicitly overturned CUB 57793 on the basis that it confused the concepts of voluntary leaving and availability. The Court found that these were separate issues, and that availability must be determined on its own.

[10] In other words, availability has nothing to do with the reasons for the Respondent’s unemployment.

[11] By finding to the contrary, the General Division member erred in law such that I am obligated to intervene to correct that error.

[12] However, at the hearing before me the Commission also spent a considerable amount of time explaining their view that because the leave of absence taken by the Respondent was voluntary, this was somehow relevant to the issue of availability.

[13] This second argument would seem to be exactly the opposite of the conclusion reached in Cloutier, and if accepted would simply repeat in a slightly different way the error committed by the General Division member. For that reason I reject it.

[14] Instead, I would apply the test for availability set out in Faucher v. Canada (Attorney General), A-56-96, which held that three factors must be analyzed:

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.

[15] I would also consider the Vezina v. Canada (Attorney General), 2003 FCA 198, where the Court held that:

The question of availability is an objective one – whether a claimant is sufficiently available for suitable employment to be entitled to unemployment [now employment] insurance benefits – and it cannot depend on the particular reasons for the restrictions on availability however these may evoke sympathetic concern. If the contrary were true, availability would be a completely varying requirement depending on the view taken of the particular reasons in each case for the relative lack of it.

[16] With those directions, I return this matter to the General Division for a new hearing so that the Respondent may present her evidence in full as to whether or not she meets the above criteria for availability. In my view, the record as it stands does not disclose enough uncontested evidence upon which I could base the required factual findings.

Conclusion

[17] For the above reasons, the appeal is allowed. The matter is returned to the General Division for reconsideration in accordance with these reasons.