Employment Insurance (EI)

Decision and reasons

Decision

[1] The application for leave to appeal is refused.

Overview

[2] The Applicant resides in X. She is a trained accountant and works seasonally preparing tax returns in the evenings and on Saturdays. She has two children, aged two and four. She has concentrated her job search on X and is only willing to accept employment in X or X, the large communities nearest to her home, if the pay is adequate to cover childcare costs.

[3] The General Division dismissed her appeal, finding that:

• the Applicant’s reduced job search efforts after August 2017 did not demonstrate a desire to return to the labour market as soon as suitable employment was offered;
• the Applicant had focused her search on X to such a degree as to unduly limit her chances of returning to the labour market;
• making 10 applications over an 8½-month period focused on a single community is not an adequate expression of desire to return to the labour market through efforts to find suitable employment; and
• the Applicant had failed to conduct a sustained search for employment in X to demonstrate reasonable and customary efforts to find employment.

[4] The Applicant contends that her appeal was dismissed because she has two children and therefore has limitations on the hours she is available. She maintains that she cannot accept work outside X unless it pays enough to cover babysitting expenses, but that the only available work in X is at fast food outlets with hours incompatible with available daycare.

[5] Leave to appeal is refused. There is no reasonable chance of success because the Applicant’s own testimony reinforces the General Division’s finding.

Issue

[6] Is there an arguable case that the General Division failed to consider whether the Applicant’s hours of work were not incompatible with her family obligations.

Analysis

[7] Subsection 58(1) of the Department of Employment and Social Development Act (DESDA) specifies the only grounds of appeal of a General Division decision. These reviewable errors are that the General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction; erred in law in making its decision, whether or not the error appears on the face of the record; or 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.

[8] An application for leave to appeal is a preliminary step to a hearing on the merits. It is an initial hurdle for the Claimant to meet, but it is lower than the one that must be met on the hearing of the appeal on the merits. At the leave to appeal stage, the Claimant does not have to prove her case; rather, she must establish that the appeal has a reasonable chance of success based on a reviewable error. Therefore, before leave can be granted, the Tribunal needs to be satisfied that the reasons for appeal fall within any of the above-mentioned grounds of appeal and that at least one of the reasons has a reasonable chance of success.

[9] In short, the Tribunal must be in a position to determine, in accordance with s. 58(1) of the DESDA, whether there is an issue of natural justice, jurisdiction, law, or fact that may lead to the setting aside of the General Division decision under review.

[10] In her leave application, the Applicant states:

I believe that my having 2 children is what made her decision to cut my EI. I fought the Appeal and still lost. I feel it is absolutely unfair that because I have some limitations of work hours for applying to work that I had to set my young family of 4 back financially that will take us months or years to recover from.

[…]

Having children causes parents to have limitations on the hours they can work, I have child care from 9-6:30 7 days a week but this isn't enough for me to work at McDonalds or a Fast food establishment that would require me to work late hours. The Government provided day care in my city is open from 8-5 which do not offer much help to parents.

[11] The law in this regard is relatively settled. To be found available for work, an applicant has to:

• have a desire to return to the labour market as soon as suitable employment is offered;
• express that desire through efforts to find suitable employment; and
• not set personal conditions that might unduly limit their chances of returning to the labour market.

As the Court held in Faucher (A-56-96, A-57-96), all three factors must be considered in making a decision.

[12] In addition, ss. 9.001 and 9.002 of the Employment Insurance Regulations (attached as an appendix to this decision) specify what constitutes reasonable efforts to obtain employment and the criteria to consider for what constitutes suitable employment.

[13] Given the restraints of s. 58, in order to succeed, the Applicant must establish an arguable case that the General Division failed to take into account the criteria for determining what constitutes suitable employment—or, put another way, the Applicant must establish an arguable case  that the General Division erred when it found that work in X or X was not incompatible with the Claimant’s family obligations. 

[14] In its decision, the General Division made specific findings on each of the three Faucher factors when analyzing the Applicant’s submissions and the facts presented. Its main reason for dismissing the Applicant’s appeal was that she had unduly limited her chances of returning to the labour market by limiting her employment efforts to the X area. The General Division also applied ss. 9.001 and 9.002. It expressly addressed the Applicant’s point regarding the compatibility of child-rearing and working hours. In paragraph 40, it stated:

The Appellant did not assert that she was physically incapable of commute to X or X; in fact, she testified that she was prepared to look for employment in those communities, provided her salary expectations were met. The Tribunal finds that section 9.002 of the Regulations required the Appellant to make a more sustained search for employment in those communities to demonstrate reasonable and customary efforts to find employment.

[15] Implicit in the Applicant’s assertion of her willingness to work in X or X if the pay was sufficient is an admission that working in these communities was not incompatible with her child-rearing responsibilities.

[16] By testifying that she was prepared to work in X or X if the pay was sufficient, the Applicant in effect substantiates the General Division’s finding that these are the communities she should have concentrated on, given that the hours at fast food outlets, the only available employment in X, are incompatible with her child-rearing obligations.  However, she spent most of her efforts on X.

[17] It is therefore difficult to see how the Applicant could argue her point with a reasonable chance of success.

[18] Accordingly, leave to appeal cannot be granted.

Conclusion

[19] The application for leave to appeal is refused.

Appendix

Employment Insurance Regulations

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.

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]