Employment Insurance (EI)

Decision

[1] The appeal is dismissed.

Overview

[2] The Appellant worked as a X in a X school. She stopped working because classes ended and the summer break began. She applied for Employment Insurance benefits on July 4, 2018, effective July 1, 2018. When questioned by the Employment Insurance Commission (Commission), the Appellant stated that she had not looked for work since applying for benefits. As a result, the Commission found that she was not available, and it imposed a disentitlement. The Appellant then sent the Commission evidence of her job search. As a result, the Commission lifted the Appellant’s disentitlement as of August 3, 2018. However, it maintained the disentitlement for the period between the beginning of the benefit period and August 3, 2018.

Preliminary matters

[3] The Appellant did not attend the hearing. The Tribunal notes that Canada Post’s proof of delivery for the notice of hearing indicates that the Appellant signed for the delivery of her file, which included the notice of hearing, on October 13, 2018. Based on that information, the Tribunal is satisfied that the Appellant received the notice of hearing and that she chose not to attend the hearing. As a result, the Tribunal proceeded with the hearing in the Appellant’s absence under the authority of section 12 of the Social Security Tribunal Regulations.

Issue

[4] The Tribunal must determine whether the Appellant has proved her availability for work between July 1, 2018, and August 3, 2018.

Analysis

[5] Section 18(1)(a) of the Employment Insurance Act (Act) states that, to be entitled to regular Employment Insurance benefits, a person must prove that they were capable of and available for work but unable to find suitable employment.

[6] The burden of proof is on the claimant (Canada (Attorney General) v Renaud, 2007 FCA 328).

Issue 1: Has the Appellant proved her availability for work between July 1 and August 3, 2018?

[7] Availability is not defined in the Act. The Federal Court of Appeal has established that availability for work must be 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, and that the three factors must be considered in reaching a conclusion (Faucher v Attorney General of Canada, A-56-96) (Faucher).

[8] After analyzing these three criteria, the Tribunal finds that the Appellant failed to prove her availability within the meaning of the Act.

1) The desire to return to the labour market as soon as a suitable job is offered

[9] The Tribunal notes that there is not enough evidence on file to reach a conclusion on the Appellant’s intentions and desire to return to work while the school where she worked was closed. As a result, the Tribunal assigns very little weight to this criterion in its analysis. However, the Tribunal recalls that the burden of proof is on the Appellant as stated earlier. Therefore, in the absence of additional evidence, the Tribunal can conclude only that the Appellant has not satisfied the first criterion of the Faucher test.

2) The expression of that desire through efforts to find a suitable job

[10] Regarding the Appellant’s demonstration of the desire to return to the labour market, the Tribunal notes that, like any Employment Insurance claimant, the Appellant had the responsibility to actively look for suitable employment in order to obtain Employment Insurance benefits (Cornelissen-O’Neill, A-652-93, De Lamirande, 2004 FCA 311).

[11] Section 50(8) of the Act states that, 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 they are making reasonable and customary efforts to obtain suitable employment.

[12] Section 9.001 of the Regulations sets out the criteria for determining whether the efforts that a claimant made to obtain suitable employment constitute reasonable and customary efforts. The Tribunal finds that those criteria can be used to establish whether the Appellant made efforts to obtain suitable employment.

[13] The Commission submits that the Appellant did not try to look for employment and therefore has failed to show the required efforts to find suitable employment between July 1 and August 3, 2018.

[14] The only evidence on the Appellant’s efforts consists of the summary of her discussion with the Commission on August 3, 2018. However, it is reported that the Appellant clearly indicated during that discussion that she had not made any efforts to find employment and preferred to wait until mid-August to see whether her employer, X, would call her back to offer her employment when classes resumed. It is also reported that the Commission’s agent explained the Appellant’s obligations to her but that the Appellant maintained her view.

[15] The Appellant submits in her notice of appeal that she made a mistake in her statements and declares that she was always available. The Tribunal understands that the Appellant may have felt available. However, the courts have determined that it is not enough to intend to work or to consider one’s self available. A claimant must show that they made efforts to achieve it. In this case, the evidence indicates that the Appellant did not look for jobs until August 3, 2018, even though she did understand her responsibilities and obligations under the Act.

[16] The Tribunal does not doubt the Appellant’s good faith. It appears that she submitted a job search as of August 3, 2018, which explains the Commission’s lifting of her disentitlement as of that date. However, for the period before August 3, 2018, the Appellant has failed to prove that she made a reasonable and customary effort to find employment.

[17] As a result, the Appellant cannot satisfy the second criterion required by the Federal Court of Appeal’s test in Faucher based on the evidence. These criteria established by the Court have been acknowledged numerous times as being essential when a claimant must prove their availability. The Tribunal is bound by the Act and cannot deviate from it. Like any other claimant, the Appellant is subject to her job search obligations whether she hoped to be called back to her previous work or not (Cornelissen-O’Neill, A-652-93; De Lamirande v Canada (Attorney General), 2004 FCA 311).

3) Not setting personal conditions that might unduly limit the chances of returning to the labour market

[18] A claimant’s availability cannot depend on particular personal conditions or unduly restrictive constraints that would limit their chances of finding employment (Canada (Attorney General) v Gagnon, 2005 FCA 321).

[19] In this case, the evidence reveals that, before August 3, 2018, the Appellant was waiting for her former employer to contact her for employment after the summer school break. Restricting her interest to a single employer significantly limits the Appellant’s chances of returning to the labour market. Furthermore, given the nature of her employment and the fact that the school is closed during the summer, it is unlikely that that employer would call the Appellant before the end of the summer. The Tribunal finds that this restriction to her former employer, X, unduly limited the Appellant’s chances of returning to the labour market between July 1 and August 3, 2018.

Conclusion

[20] The appeal is dismissed.