Employment Insurance (EI)

Decision and Reasons

Decision

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

Overview

[2] The Applicant, N. M. (Claimant), is seeking Employment Insurance regular benefits. He worked as a seasonal fisher until August 18, 2017. Unable to find other employment, he went to school for a one-year course. He attended school full-time on weekdays, other than a half day on Fridays. The Claimant continued looking for work while he attended school. He stated that he was prepared to quit school if he found work. The Respondent, the Canada Employment Insurance Commission (Commission), denied his application for benefits—initially and upon reconsideration—having found that he had not proven his availability for work. The Claimant appealed the Commission’s reconsideration decision to the General Division.

[3] The General Division dismissed the Claimant’s appeal because it determined that he had failed to demonstrate that he was available for work. In particular, it found that his job-search efforts were “not an adequate expression of [his] desire to return to the labour market,” that he had set personal conditions that might have unduly limited his chances of returning to the labour market, and that he did not make reasonable and customary efforts to obtain suitable employment.

[4] The Claimant seeks leave to appeal the General Division’s decision, on the ground that the General Division 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. He contends that the General Division failed to recognize his efforts at finding work. He maintains that he was willing to leave school for full-time, suitable work and that he searched for work that was suitable and full-time and for which he was “absolutely capable.” He maintains that no employment opportunities arose between September 2017 and June 2018. He has since returned to seasonal fishery and currently holds two positions, while he continues to search for full-time employment.

[5] I must now decide whether the appeal has a reasonable chance of success—that is, whether there is an arguable case that the General Division failed to consider the evidence before it.

[6] The application for leave to appeal is refused because I am not convinced that the Claimant has raised a ground that has a reasonable chance of success on appeal. Essentially, he is seeking a reassessment or a rehearing on the issue of whether he was available for work. This is not a ground of appeal under s. 58(1) of the Department of Employment and Social Development Act (DESDA).

Issue

[7] Is there an arguable case that the General Division failed to consider the evidence before it when it considered the Claimant’s efforts to find employment?

Analysis

[8] Subsection 58(1) of the DESDA sets out the grounds of appeal as being limited to one or all of the following:

1. (a) The General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction.
2. (b) The General Division erred in law in making its decision, whether or not the error appears on the face of the record.
3. (c) The General Division 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.

[9] Before granting leave to appeal, I need to be satisfied that the reasons for appeal fall within the grounds of appeal set out under s. 58(1) of the DESDA and that the appeal has a reasonable chance of success. This is a relatively low bar. Claimants do not have to prove their case; they simply have to establish that the appeal has a reasonable chance of success based on a reviewable error. The Federal Court endorsed this approach in Joseph v. Canada (Attorney General).^{Footnote 1}

[10] The Claimant asserts that he was prepared to leave school for full-time, suitable employment. He claims that he gave evidence before the General Division that, between the summer and fall of 2017, he had been looking for work as:

• a labourer with X in X, Newfoundland; however, he was not qualified to operate or repair heavy equipment;
• a sales clerk with X, X, Newfoundland; and
• a deckhand for F. M.; however, the company was fully staffed.

[11] He argues that these efforts prove that he was capable of and available for work, that he was unable to obtain suitable employment, and that he met the requirements of s. 18(1)(a) of the Employment Insurance Act.

[12] While the General Division did not set out the precise details of the Claimant’s job-search efforts, it referred to these efforts throughout its decision. In its overview, the General Division noted that the Claimant had listed the three applications for employment in his request for reconsideration. The General Division again referred to the three applications at paragraphs 13, 16, 18, and 20. I therefore find that the General Division did not fail to consider the evidence before it or that it based its decision on an erroneous finding of fact that it made without regard to the material before it.

[13] All in all, I find that the General Division properly identified and applied the appropriate legal test for determining availability and that it did not overlook or misconstrue any important information. Accordingly, I am not satisfied that the appeal has a reasonable chance of success.

[14] Essentially, the Claimant is seeking a reassessment or a rehearing on the issue of whether he was available. However, s. 58(1) of the DESDA provides for only limited grounds of appeal. The subsection does not allow for a reassessment of the evidence or a rehearing of the matter.

Conclusion

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