Employment Insurance (EI)

Decision

[1] On the issue of availability for work, the appeal is allowed.

[2] On the issue of weeks of entitlement, the appeal is dismissed.

Overview

[3] The Appellant established a claim for employment insurance benefits. The Respondent disentitled the Appellant from receiving benefits during the period of December 7, 2015 and December 8, 2015, after finding that she failed to prove her availability for work. The Respondent also found that the Appellant was entitled to 17 weeks of benefits. At the reconsideration stage the Respondent maintained its initial decision. The Appellant appealed the reconsideration decision to the Social Security Tribunal (Tribunal).

Issues

[4] Issue #1: Did the Appellant prove her availability for work? If not should a disentitlement be imposed?

[5] Issue #2: Is the Appellant entitled to 21 or 17 weeks of regular benefits on her claim?

Analysis

[6] The relevant legislative provisions are reproduced in the Annex to this decision.

Did the Appellant prove her availability for work? If not should a disentitlement be imposed?

[7] For the purpose of proving availability under paragraph 18(1) (a) of the Act, subsection 50(8) of the Act states that the Commission may require the claimant to prove that she is making reasonable and customary efforts to obtain suitable employment.

[8] 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.

[9] The Tribunal finds that the Appellant proved her availability for work.

[10] The Respondent stated that “by the claimant’s own admission she was not available for work on both December 7, 2015 and December 8, 2015”. The Tribunal does not believe that the Appellant made such statement. The Appellant only stated that she was travelling during the period in question.

[11] The Appellant provided that she objects to the Respondent’s statement that it was “regretful that the claimant was travelling from Florida to Canada as she had been incorrectly advised by the Commission that she would not be eligible for benefits while residing in the United States”. She stated that calling it “regretful” is offensive to her and causes harm to her emotional health.

[12] The Tribunal notes that the Respondent imposed a disentitlement on the Appellant for the period of December 7, 2015 to December 8, 2015 because she was travelling to Canada to meet with Service Canada. The Appellant was incorrectly advised by the Respondent that she would not be eligible for benefits while residing in the United States.

[13] The Appellant submitted that while she traveled to Canada by plane, train and bus, she had access to the internet and her email and carried her two cell phones. One Canadian and one American. The Appellant explained that if she received a call or email for a job interview, she would attend. Usually, the first interview is conducted by phone or skype.

[14] The Tribunal accepts the direct and clear evidence of the Appellant and finds that she was available for work during the period of December 7, 2015 to December 8, 2015. A disentitlement should not be imposed on her claim for benefits.

Is the Appellant entitled to 21 or 17 weeks of regular benefits on her claim?

[15] Subsection 12(2) of the Act establishes the maximum number of weeks for which employment insurance benefits may be paid in a benefit period, based on the number of insurable employment hours accumulated in the qualifying period and the applicable regional rate of unemployment.

[16] The Appellant is entitled to 17 weeks of regular employment insurance benefits.

[17] The documentary evidence indicates that the Appellant accumulated 910 hours of insurable employment in her qualifying period and the regional rate of unemployment was 7.8% when the benefit period was initially established. Accordingly, the number of weeks for which benefits may be paid pursuant to Schedule I in subsection 12(2) of the Act is 21.

[18] The evidence also indicates that the Appellant resided in the United States during the benefit period and met the conditions of subsection 55(6) of the Regulations; therefore, subsection 12(2) of the Act was no longer applicable. Instead, subsection 55(7) (b) of the Regulations is applicable and the number of weeks for which benefits may be paid is 17.

Conclusion

[19] On the issue of availability for work, the appeal is allowed.

[20] On the issue of weeks of entitlement, the appeal is dismissed.

Annex

The law

Employment Insurance Act

1. 18 (1) 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.
2. (2) A claimant to whom benefits are payable under any of sections 23 to 23.2 is not disentitled under paragraph (1)(b) for failing to prove that he or she would have been available for work were it not for the illness, injury or quarantine.
3. 50 (1) A claimant who fails to fulfil or comply with a condition or requirement under this section is not entitled to receive benefits for as long as the condition or requirement is not fulfilled or complied with.
4. (2) A claim for benefits shall be made in the manner directed at the office of the Commission that serves the area in which the claimant resides, or at such other place as is prescribed or directed by the Commission.
5. (3) A claim for benefits shall be made by completing a form supplied or approved by the Commission, in the manner set out in instructions of the Commission.
6. (4) A claim for benefits for a week of unemployment in a benefit period shall be made within the prescribed time.
7. (5) The Commission may at any time require a claimant to provide additional information about their claim for benefits.
8. (6) The Commission may require a claimant or group or class of claimants to be at a suitable place at a suitable time in order to make a claim for benefits in person or provide additional information about a claim.
9. (7) For the purpose of proving that a claimant is available for work, the Commission may require the claimant to register for employment at an agency administered by the Government of Canada or a provincial government and to report to the agency at such reasonable times as the Commission or agency directs.
10. (8) For the purpose of proving that a claimant is available for work and unable to obtain suitable employment, the Commission may require the claimant to prove that the claimant is making reasonable and customary efforts to obtain suitable employment.
11. (8.1) For the purpose of proving that the conditions of subsection 23.1(2) or 152.06(1) are met, the Commission may require the claimant to provide it with an additional certificate issued by a medical doctor.
12. (9) A claimant shall provide the mailing address of their normal place of residence, unless otherwise permitted by the Commission.
13. (10) The Commission may waive or vary any of the conditions and requirements of this section or the regulations whenever in its opinion the circumstances warrant the waiver or variation for the benefit of a claimant or a class or group of claimants.

Employment Insurance Regulations

1. 9.001 For the purposes of subsection 50(8) of the Act, the criteria for determining whether the efforts that the claimant is making to obtain suitable employment constitute reasonable and customary efforts are the following:
   1. (a) the claimant’s efforts are sustained;
   2. (b) the claimant’s efforts consist of
      1. (i) assessing employment opportunities,
      2. (ii) preparing a resumé or cover letter,
      3. (iii) registering for job search tools or with electronic job banks or employment agencies,
      4. (iv) attending job search workshops or job fairs,
      5. (v) networking,
      6. (vi) contacting prospective employers,
      7. (vii) submitting job applications,
      8. (viii) attending interviews, and
      9. (ix) undergoing evaluations of competencies; and
   3. (c) the claimant’s efforts are directed toward obtaining suitable employment.
2. 9.002 (1) For the purposes of paragraphs 18(1)(a) and 27(1)(a) to (c) and subsection 50(8) of the Act, the criteria for determining what constitutes suitable employment are the following:
   1. (a) the claimant’s health and physical capabilities allow them to commute to the place of work and to perform the work;
   2. (b) the hours of work are not incompatible with the claimant’s family obligations or religious beliefs; and
   3. (c) the nature of the work is not contrary to the claimant’s moral convictions or religious beliefs.
   4. (d) to (f) [Repealed, SOR/2016-162, s. 1]
3. (2) However, employment is not suitable employment for the purposes of paragraphs 18(1)(a) and 27(1)(a) to (c) and subsection 50(8) of the Act if
   1. (a) it is in the claimant’s usual occupation either at a lower rate of earnings or on conditions less favourable than those observed by agreement between employers and employees, or in the absence of such agreement, than those recognized by good employers; or
   2. (b) it is not in the claimant’s usual occupation and it is either at a lower rate of earnings or on conditions less favourable than those that the claimant might reasonably expect to obtain, having regard to the conditions that the claimant usually obtained in the claimant’s usual occupation, or would have obtained if the claimant had continued to be so employed.
4. (3) After a lapse of a reasonable interval from the date on which an insured person becomes unemployed, paragraph (2)(b) does not apply to the employment described in that paragraph if it is employment at a rate of earnings not lower and on conditions not less favourable than those observed by agreement between employers and employees or, in the absence of any such agreement, than those recognized by good employers.
5. 55 (1) Subject to section 18 of the Act, a claimant who is not a self-employed person is not disentitled from receiving benefits for the reason that the claimant is outside Canada
   1. (a) for the purpose of undergoing, at a hospital, medical clinic or similar facility outside Canada, medical treatment that is not readily or immediately available in the claimant’s area of residence in Canada, if the hospital, clinic or facility is accredited to provide the medical treatment by the appropriate governmental authority outside Canada;
   2. (b) for a period of not more than seven consecutive days to attend the funeral of a member of the claimant’s immediate family or of one of the following persons, namely,
      1. (i) a grandparent of the claimant or of the claimant’s spouse or common-law partner,
      2. (ii) a grandchild of the claimant or of the claimant’s spouse or common-law partner,
      3. (iii) the spouse or common-law partner of the claimant’s son or daughter or of the son or daughter of the claimant’s spouse or common-law partner,
      4. (iv) the spouse or common-law partner of a child of the claimant’s father or mother or of a child of the spouse or common-law partner of the claimant’s father or mother,
      5. (v) a child of the father or mother of the claimant’s spouse or common-law partner or a child of the spouse or common-law partner of the father or mother of the claimant’s spouse or common-law partner,
      6. (vi) an uncle or aunt of the claimant or of the claimant’s spouse or common-law partner, and
      7. (vii) a nephew or niece of the claimant or of the claimant’s spouse or common-law partner;
   3. (c) for a period of not more than seven consecutive days to accompany a member of the claimant’s immediate family to a hospital, medical clinic or similar facility outside Canada for medical treatment that is not readily or immediately available in the family member’s area of residence in Canada, if the hospital, clinic or facility is accredited to provide the medical treatment by the appropriate governmental authority outside Canada;
   4. (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;
   5. (e) for a period of not more than seven consecutive days to attend a bona fide job interview; or
   6. (f) for a period of not more than 14 consecutive days to conduct a bona fide job search.
6. (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).
7. (2) For the purposes of subsections (1) and (1.1), 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.
8. (3) [Repealed, SOR/2001-290, s. 3]
9. (4) A claimant who is not a self-employed person is not disentitled from receiving benefits in respect of pregnancy, the care of a child or children referred to in subsection 23(1) of the Act, the care or support of a family member referred to in subsection 23.1(2) of the Act or of a critically ill child or while attending a course or program of instruction or training referred to in paragraph 25(1)(a) of the Act for the sole reason that the claimant is outside Canada, unless their Social Insurance Number Card or the period of validity of their Social Insurance Number has expired.
10. (5) A major attachment claimant who is not a self-employed person and whose most recent interruption of earnings before making a claim for benefits is from insurable employment outside Canada is not disentitled from receiving benefits for the sole reason that the claimant is outside Canada if
    1. (a) the benefits are in respect of pregnancy, the care of a child or children referred to in subsection 23(1) of the Act or the care or support of a family member referred to in subsection 23.1(2) of the Act or of a critically ill child;
    2. (b) the claimant proves that they are incapable, by reason of illness, injury or quarantine, from performing the duties of their regular or usual employment or of other suitable employment.
11. (6) Subject to subsection (7), a claimant who is not a self-employed person and who resides outside Canada, other than a major attachment claimant referred to in subsection (5), is not disentitled from receiving benefits for the sole reason of their residence outside Canada if
    1. (a) the claimant resides temporarily or permanently in a state of the United States that is contiguous to Canada and
       1. (i) is available for work in Canada, and
       2. (ii) is able to report personally at an office of the Commission in Canada and does so when requested by the Commission; or
    2. (b) the claimant is qualified to receive benefits under Article VI of the Agreement between Canada and the United States respecting Unemployment Insurance, signed on March 6 and 12, 1942, and resides temporarily or permanently in one of the following places in respect of which the Commission has not, pursuant to section 16 of the Employment and Immigration Department and Commission Act, suspended the application of that Agreement, namely,
       1. (i) the District of Columbia,
       2. (ii) Puerto Rico,
       3. (iii) the Virgin Islands, or
       4. (iv) any state of the United States.
12. (7) Subject to subsection (10), the maximum number of weeks for which benefits may be paid in a benefit period, in respect of a claimant referred to in subsections (5) and (6) who is not disentitled from receiving benefits, is
    1. (a) in the case of benefits that are paid for a reason referred to in subsection 12(3) of the Act, the applicable number of weeks referred to in subsections 12(3) to (6) of the Act; and
    2. (b) in any other case, in respect of the number of hours of insurable employment in the claimant’s qualifying period set out in column I of the table to this subsection, the corresponding number of weeks set out in column II of that table.

13. Table

    Item	Column I Number of Hours of Insurable Employment	Column II Number of Weeks of Benefits
    1	420 - 454	10
    2	455 - 489	10
    3	490 - 524	11
    4	525 - 559	11
    5	560 - 594	12
    6	595 - 629	12
    7	630 - 664	13
    8	665 - 699	13
    9	700 - 734	14
    10	735 - 769	14
    11	770 - 804	15
    12	805 - 839	15
    13	840 - 874	16
    14	875 - 909	16
    15	910 - 944	17
    16	945 - 979	17
    17	980 - 1,014	18
    18	1,015 - 1,049	18
    19	1,050 - 1,084	19
    20	1,085 - 1,119	19
    21	1,120 - 1,154	20
    22	1,155 - 1,189	20
    23	1,190 - 1,224	21
    24	1,225 - 1,259	21
    25	1,260 - 1,294	22
    26	1,295 - 1,329	22
    27	1,330 - 1,364	23
    28	1,365 - 1,399	23
    29	1,400 - 1,434	24
    30	1,435 - 1,469	25
    31	1,470 - 1,504	26
    32	1,505 - 1,539	27
    33	1,540 - 1,574	28
    34	1,575 - 1,609	29
    35	1,610 - 1,644	30
    36	1,645 - 1,679	31
    37	1,680 - 1,714	32
    38	1,715 - 1,749	33
    39	1,750 - 1,784	34
    40	1,785 - 1,819	35
    41	1,820 or more	36

14. (8) Subject to subsection (10), a claimant referred to in subsections (5) and (6), for whom a benefit period has been established and who subsequently becomes resident in Canada, continues to be entitled to receive benefits for not more than the maximum number of weeks referred to in subsection (7).
15. (9) Subject to subsection (10), the maximum number of weeks for which benefits may be paid in the benefit period, in respect of a claimant for whom a benefit period has been established in Canada and who subsequently becomes a claimant referred to in subsection (6), is the greater of
    1. (a) the number of weeks for which the claimant has already received benefits in Canada; and
    2. (b) the number of weeks to which the claimant would have been entitled under subsection (7) if the claimant had been temporarily or permanently resident in a place referred to in subsection (6) when the benefit period was established.
16. (10) In a claimant’s benefit period, a claimant who is not in Canada or a claimant referred to in subsection (8) may, subject to the applicable maximums set out in paragraphs (7)(a) and (b), combine weeks of benefits to which they are entitled, but the maximum number of combined weeks is 50. If the benefit period is extended under subsection 10(13) of the Act, the maximum number of combined weeks equals the maximum number of weeks calculated under subsection 10(15) of the Act less two weeks.
17. (11) A claimant who is not a self-employed person is not disentitled from receiving benefits for the sole reason that the claimant is outside Canada if the claimant is outside Canada, with the approval of the Commission, in the course of the claimant’s employment under the Self-employment employment benefit established by the Commission under section 59 of the Act or under a similar benefit that is provided by a provincial government or other organization and is the subject of an agreement under section 63 of the Act.
18. (12) Subject to subsection (13), where a claimant makes a claim for the purposes of this section, the claim shall be sent in an envelope or package addressed to the Commission, by mail or by means of a confirmed delivery service.
19. (13) Where a claim is sent by the claimant to the Commission in a manner other than the manner required by subsection (12), the claim shall be reviewed by an employee of the Commission at the time of importation.