Employment Insurance (EI)

Decision and Reasons

Decision

[1] The appeal is dismissed. The General Division made errors of law but I have corrected those errors and I have still reached the same decision.

Overview

[2] The Appellant, L. D. (Claimant), was laid off from his employment on August 22, 2019, and applied for Employment Insurance benefits. After he started a course in September to upgrade his skills, the Respondent, the Canada Employment Insurance Commission (Commission), determined that he was not entitled to benefits because he was not available for employment. When the Claimant asked the Commission to reconsider, it maintained its original decision.

[3] The Claimant appealed to the General Division of the Social Security Tribunal, but the General Division dismissed his claim, finding that his job search was inadequate. The Claimant is now appealing the General Division decision to the Appeal Division.

[4] The appeal is dismissed. The General Division made error of laws and I have corrected those errors and substituted my decision. However, I have also concluded that the Claimant was not available for work in the period from September 3, 2019, to December 13, 2019.

What grounds can I consider for the appeal?

[5] “Grounds of appeal” are the reasons for the appeal. To allow the appeal, I must find that the General Division made one of these types of errors:^{Footnote 1}

1. The General Division hearing process was not fair in some way.
2. The General Division did not decide an issue that it should have decided. Or, it decided something it did not have the power to decide.
3. The General Division based its decision on an important error of fact.
4. The General Division made an error of law when making its decision.

Issues

[6] Did the General Division make an error of law by requiring the Claimant to prove that his job search efforts were “reasonable and customary”?^{Footnote 2}

[7] Did the General Division make an error of law by requiring the Claimant to meet the “reasonable and customary efforts” criteria to determine whether the claimant was “capable of and available for work and unable to find suitable employment”?^{Footnote 3}

[8] Did the General Division make an error of law by requiring the Claimant’s job search efforts to be sustained?

[9] Did the General Division make an error of law by failing to explain why it rejected the Claimant’s argument that the Commission was obligated to warn the Claimant to expand his job search efforts?

Analysis

Requiring Claimant to show that his job search efforts were “reasonable and customary”

[10] The General Division made an error of law in requiring the Claimant to show that his job search efforts were “reasonable and customary”.

[11] Under section 50(8) of the Employment Insurance Act (EI Act), the Commission may require a claimant to prove that he or she has made reasonable and customary efforts in accordance with the criteria in section 9.001 of the Employment Insurance Regulations (Regulations). Section 9.001 states that its criteria are for the purpose of section 50(8) of the EI Act. Section 9.001 does not say that its criteria apply to determine availability under section 18(1)(a) of the EI Act.

[12] If a claimant does not comply with a section 50(8) request to prove that he has made reasonable and customary efforts, then he or she may be disentitled under section 50(1) of the EI Act. Section 50(1) says that a claimant is disentitled to receiving benefits until he complies with a request under 50(8) and supplies the required information.

[13] The General Division stated that the Claimant was notified of the requirement to actively search for work through the information that is included in the initial application for benefits. The General Division is correct that the initial application sets out a claimant’s obligation to actively search for work. It also describes the sort of job search activities that may be considered acceptable.^{Footnote 4}

[14] However, I do not accept that the information included in the application for benefits constitutes a section 50(8) request. The benefit application does not require the Claimant to submit proof of his job search efforts. It only warns him that proof may be required at some later date.

[15] Furthermore, the claim application does not establish a specific standard to which a claimant may be held accountable. The application does not state that the only way a claimant may prove his or availability is by performing or participating in the listed activities. It lists a number of job search activities, but it does not tell claimants whether they must engage in all, or only some, of the listed activities. If a claimant may be available by only performing some, then the application does not say how many activities, or which combination of activities would be acceptable. It does not say if some are mandatory while others are optional. The application does not specify how frequently a claimant is expected to perform any of these activities. Claimants are not told that they must perform multiple activities at the same time or if they may focus on one at a time.

[16] Section 50(8) gives the Commission the ability to require a claimant to prove his or her availability with reference to the “reasonable and customary effort” criteria under section 50(8). The Commission may disentitle the claimant under section 50(1) for failing to comply. However, before a Claimant can be prejudiced for not providing the proof the Commission requires, the Commission must first ask the claimant for the proof, and it must specify what kind of proof will satisfy its requirements.

[17] The Commission did not require the Claimant to prove that he had made reasonable and customary efforts. In fact, when the Commission decided that the Claimant should be disentitled, its focus was on the Claimant’s attendance at “non-referred training”. It did not even discuss his job search efforts, let alone ask him to prove that his efforts met specific criteria.^{Footnote 5} The Commission did not ask the Claimant about his job search efforts until it interviewed him in response to the reconsideration request. At that point, the Commission asked him where he had been looking for work and whether he had a detailed job search record.^{Footnote 6}

[18] Nothing on the reconsideration file^{Footnote 7} suggests that the Claimant failed to comply with a Commission direction that he prove his job search according to the criteria of section 9.001, or that he was told how he should do that. The Claimant was disentitled under section 18(1)(a) of the EI Act. The Commission did not disentitle the Claimant under section 50(1) of the EI Act for failing to comply with a request from the Commission.

Use of reasonable and customary criteria to conclude that the Claimant was not available under section 18(1)(a) of the EI Act.

[19] Regardless of whether the Commission makes a request under section 50(8), it is always open to the Commission to investigate whether a claimant is actually available under section 18(1)(a) of the EI Act. Section 18(1)(a) states that a Claimant is not entitled to be paid benefits for a working day for which the Claimant fails to prove that he or she was capable of and available for work and unable to obtain suitable employment.

[20] The General Division did not only find that the Claimant should be disentitled because he was not “available” under the reasonable and customary criteria. It also found that the Claimant was not entitled to benefits because he was not available under section 18(1)(a) of the EI Act.

[21] According to the Federal Court of Appeal, there are three factors (the “Faucher factors”) that must be considered to determine whether a claimant is available under section 18(1)(a) of the EI Act:^{Footnote 8}

1. a) Does the claimant have a desire to return to work as soon as a suitable job is offered?
2. b) Has the claimant expressed that desire through efforts to find work? and;
3. c) Has the claimant set conditions on the kind of work that he or she would accept that unduly limits the chances of the claimant returning to the labour marker?

[22] The General Division applied the three Faucher factors to determine the Claimant’s availability under section 18(1)(a) of the EI Act.

[23] The General Division stated that the Claimant’s job search efforts were not enough to meet the second of the Faucher factors because they were not genuine. The General Division also said that it was guided by the “list of job-search activities” (from section 9.001 of the Regulations). In other words, the General Division consulted the section 9.001 criteria to determine whether the Claimant’s efforts met the requirements of Faucher.

[24] The General Division would have made an error of law if its reason for finding the Claimant unavailable under section 18(1)(a) of the EI Act was that he did not meet the “reasonable and customary efforts” criteria.^{Footnote 9} However, that was not the General Division’s reason.

[25] The General Division reviewed the Claimant’s job search activities once again for the purpose of assessing whether the Claimant expressed his desire to return to work through his job search.^{Footnote 10} In the General Division’s judgment, the Claimant’s job efforts and, more specifically, the number of his job applications were not a sufficient demonstration of the Claimant’s desire to return work under the Faucher test.^{Footnote 11}

[26] This is the same evidence that the General Division relied on to find that the Claimant did not meet the section 9.001 criteria.^{Footnote 12}  However, the evidence of the number of job applications and other job search efforts remains relevant to the question of availability under section 18(1)(a). This is true, regardless of whether the same activities are identified within the “reasonable and customary” criteria of section 9.001.

[27] It was not an error of law for the General Division to rely on evidence of job search activities that are described in section 9.001 of the Regulations. The General Division did not find that the Claimant must fail the Faucher test for the reason that his job search efforts did not satisfy the “reasonable and customary effort” criteria.

Requiring that the Claimants’ job search be “sustained.”

[28] However, the General Division made a different error of law when it considered whether the Claimant was available under section 18(1)(a) of the EI Act. The General Division improperly applied part of the reasonable and customary criteria to determine whether the Claimant made efforts to find a suitable job under the Faucher test.

[29] When the General Division justified its conclusion that the Claimant’s job search efforts were not enough, it referred to its earlier findings that supported its conclusion that the Claimant’s efforts were not reasonable and customary. The General Division stated that the total number of the Claimant`s job search efforts and applications were limited, “over the period in question”. It said that, “[I]t was not the scope of the Claimant’s job search, but the total number of job applications that support[ed] that he was not performing a sustained search for suitable employment.”^{Footnote 13}

[30] The General Division’s finding that the Claimant’s job search activities were not “sustained” was based entirely on the number of applications or employer contacts the Claimant had made. However, contacting or applying to employers is not the only job search activity in which the Claimant was engaged.

[31] There was evidence, accepted by the General Division, that the Claimant’s job search efforts included “assessing employment opportunities on the online job bank, contacting five employers for prospective employment, and networking with friends and family”.^{Footnote 14} The General Division did not comment on whether it also viewed the Claimant’s involvement in these as “not sustained”.

[32] However, the General Division should not have relied on its finding that any of the Claimant’s activities were “not sustained” to find that the Claimant did not meet the second Faucher factor. This was an error of law.

[33] “Sustained” is one of the requirements that is set out in section 9.001 of the Regulations and is used to determine if job search efforts are “reasonable and customary”. I can appreciate that the Commission will find it useful to consider whether efforts are sustained when it demands proof of a claimant’s job search efforts. Most claimants will not be able to prove their availability for every day in their benefit period, based on the job search activities of each day. However, if a claimant can prove that his or her job search efforts were “sustained” over time, the Commission may be able to infer the claimant’s availability on particular days within that period, for which the claimant cannot produce specific proof.

[34] The Commission may not infer that a claimant is not available on every day within the benefit period just because a job search is not “sustained”. In such a case, the Commission may need to determine the Claimant’s availability within different periods inside the benefit period. Depending on the circumstances, those periods may be months, weeks, or even days.

[35] The disentitlement described under section 18(1) is a disentitlement for each working day within a benefit period for which a claimant cannot prove his or her availability. A claimant may be able to prove that he or she is available on particular days within the benefit period even if the evidence suggests that the claimant was not available on a “sustained” basis.

[36] The General Division’s finding that the Claimant’s job search was “not sustained” does not help to determine the Claimant’s availability on any particular day. It does not support a conclusion that the Claimant was not available throughout the entire period from September 3, 2019, to December 13, 2019.

[37] If I am wrong, and the General Division did not rely on its finding that the Claimants’ job search was not sustained to find that he was not available under section 18(1)(a), then the General Division made an error of law by failing to justify its decision with adequate reasons.

[38] The General Division gave no other reason (for finding that the Claimant’s job search efforts were not enough) than that the total number of his job applications (five jobs in four months)^{Footnote 15} was not a “sustained” search.^{Footnote 16} The General Division said only that the Claimant’s efforts were “limited”,^{Footnote 17} and “not genuine”^{Footnote 18}  

[39] Describing the Claimant’s job search efforts as limited or not genuine is a conclusion, not a reason. Without explaining on what evidence it concluded that the efforts were limited or not genuine, and how it reasoned to that conclusion, the General Division has not explained its decision.

[40] I find that the General Division made an error of law by importing an irrelevant consideration to decide that the Claimant was not available under section 18(1)(a). In the alternative, I find that its reasons are inadequate to justify its conclusion.

Reasons that do not consider whether the Commission was obligated to give the Claimant an opportunity to expand his job search?

[41] The Claimant’s principal argument at the General Division was that the Commission should have given him an opportunity to expand his job search. The General Division acknowledged this argument and it noted that he had relied on a Canadian Umpire Benefit (CUB) decision.^{Footnote 19} However, the General Division did not actually explain why it rejected this argument.

[42] In support of his argument, the Claimant had cited Canadian Umpire Benefit (CUB) 72689, a decision of the Umpire. That Umpire referred to other CUB decisions and stated that, “the jurisprudence has also established that the Commission must give notice to a claimant that he must enlarge his job search.”^{Footnote 20}

[43] In my leave to appeal decision, I noted that CUB 72689 also relied on Carpentier v Canada (Attorney General),^{Footnote 21} which was a decision of the Federal Court of Appeal. The Carpentier decision involved a claimant who was disentitled to benefits because he did not make himself available for work. I referred to it specifically because the Court in Carpentier appeared to consider it relevant that the claimant in the case was disentitled before he received news of his claim or notice of any problem before he was disentitled.

[44] In response to the Claimant’s argument, the General Division found that the Claimant was not performing a sustained search because he did not apply for enough jobs. It also said that his initial job application gave him notice to search for work. Neither of these findings are actually responsive to the Claimant’s argument or relevant to whether the Commission has an obligation to warn claimants that they face disentitlement if they do not expand their job search.

[45] I find that the General Division made an error of law because its reasons are inadequate. They do not respond to the Claimant’s argument in a meaningful way.

Summary of errors

[46] I have found that the General Division made errors in how it reached its decision. This means that I must now consider the appropriate remedy.

Remedy

Nature of remedy

[47] I have the authority to change the General Division decision or make the decision that the General Division should have made.^{Footnote 22} I could also send the matter back to the General Division for it to reconsider its decision.

[48] Both the Claimant and the Commission suggest that the General Division record is complete and that I should make the decision that the General Division should have made.

[49] I accept that the General Division has considered all the issues raised by this case and that I can make the decision based on the evidence that was before the General Division.

New decision

[50] I only need to decide if the Claimant was available for work under section 18(1)(a) of the EI Act. The Commission did not require the Claimant to prove his job search activities under section 50(8) according to the “reasonable and customary” criteria described in section 9.001 of the Regulations. Neither did it disentitle the Claimant under section 50(1) for failing to prove “reasonable and customary” efforts. I do not need to decide that the Claimant’s job search activities satisfy the section 9.001 criteria, in order to find him to be available and entitled to benefits.

[51] The Faucher test sets out three factors that I must consider before deciding if the Claimant is available under section 18(1)(a). On the first Faucher factor, the General Division found that the Claimant had a desire to return to work. On the third factor, the General Division found that the Claimant did not set conditions that unduly limited his chances of returning to the labour market. I have no reason to interfere with those findings.

[52] That leaves me to decide if the Claimant satisfies the second Faucher factor; that is, I need to decide if the Claimant’s job search was such that it expressed his desire to return to the labour market as soon as a suitable job could be offered.

Were the Claimant’s job search efforts sufficient?

[53] According to the General Division’s findings, the Claimant’s job search efforts included assessing employment opportunities using an online job bank, and contacting and networking with friends and family. In addition, the Claimant contacted five employers for prospective employment, over the four months of his unemployment. The Claimant had been laid off due to a shortage of work but the General Division noted that the Claimant had resumed working for his previous employer for several weekend shifts in September 2019, as work became available.^{Footnote 23} The Claimant has not disputed any of this evidence and I accept the evidence as found by the General Division.

Expectation of recall

[54] The Claimant testified that the reason for his lay-off was that it was a slow time.^{Footnote 24} He said that he “took whatever hours he could get” with his former employer,^{Footnote 25} which translated into working a couple of Saturdays in September.^{Footnote 26} The Claimant said that a job with his former employer was one of the jobs to which he “applied”.

[55] However, I do not accept that the Claimant knew if, or when, he was going to return to work for his former employer. The fact that he worked “a couple of Saturdays” in September shortly after he was laid off suggests that he maintained a relationship to his employer, at least in September. However, the business at which he had been employed was a family business.^{Footnote 27} The fact that he worked a couple of Saturdays in the family business does not mean that he and his employer were trying to maintain an employment relationship.

[56] There was no other evidence to suggest that the employer intended the Claimant to continue working while he went to school, or that it expected to rehire the Claimant to work full-time at some later date.

[57] At the same time, the Claimant himself did not claim to have a specific plan to return to the family business. He testified that his former employer was one of the five employers to which he applied. However, he said nothing about being asked to return to work. After leaving his employment, the Claimant started formal training in the field of heating, ventilation and air conditioning (HVAC), the same line of work as his family’s business. But when he was asked by the Commission where he would work if he quit his training, he did not mention returning to work at his former employer. He said that he didn’t know–he would work somewhere he liked.^{Footnote 28}

[58] I have considered whether the case law offers supports the availability of a claimant in similar circumstances. I initially suggested that a Federal Court of Appeal decision called Canada (Attorney General) v MacDonald^{Footnote 29} may be relevant to my decision and I asked the parties if they would like to make submissions on MacDonald. The Commission declined and I did not receive any additional submission from the Claimant.

[59] In MacDonald, the Commission had appealed a decision of the Board of Referees to the Umpire.^{Footnote 30} The Board of Referees had found that the claimant was available for work despite the fact that she was attending some classes and was only willing to return to work with her former employer. The Umpire dismissed that appeal, and the Commission asked for a review by the Federal Court of Appeal. The Court upheld the Umpire’s dismissal.^{Footnote 31}

[60] After further reflection, I have decided that the MacDonald decision is not useful to this analysis. The Claimant’s circumstances are significantly different from the facts in the MacDonald case. In MacDonald, the claimant had been with her employer for a long time. Her hours of work fluctuated from week to week but she remained on-call during the period in question. Here, the Claimant worked a couple of Saturdays during the first month after he was laid off. There is no evidence he was on-call or that he continued to work periodically for his former employer from September 3 to December 13. There is no evidence that he expected to continue working for the employer indefinitely.

Other job search activities

[61] The Claimant did not provide many details of his job search. He said only that his search involved five contacts with employers (including his previous employer), checking an online job site or board, and networking with family and friends. However, there is no evidence of how often he checked the job board. He has not said how many job prospects he identified or the criteria he used to identify prospects. He did not say if he identified any prospects that he did not follow-up on. The Claimant did not elaborate on what he meant by “networking with friends and family”. Depending on how extensive his network is and how diligently he reached out through that network this could potentially be a significant job search activity. However, it could also mean very little. It is possible that networking meant nothing more than making a casual reference to his dad and to a couple of friends that he will need to find another job.

[62] It is up to the Claimant to prove he has made reasonable efforts to find work to establish his availability for work.^{Footnote 32} I am not satisfied that the Claimant’s job search expressed his desire to return to the labour market as soon as a suitable job could be offered. The Claimant told the Commission that he did not have a detailed job search record.^{Footnote 33} He told the Commission that he was looking for work but did not apply for jobs. He testified to the General Division that he contacted five employers, but he could only identify a couple of other job search activities and he did not provide any details of those other activities. I accept that the Claimant was looking for work after a fashion, but the Claimant has not shown that his job search was sufficient to support his availability.

Was the Commission obligated to give the Claimant an opportunity to expand his job search?

[63] The Claimant’s principal argument was that the Commission should have given him an opportunity to expand his job search.

[64] The Claimant relied on CUB 72689 to support his position that the Commission has an obligation to give him the opportunity to expand his job search before disentitling him. The facts in CUB 72689 were significantly different from the present facts but the Umpire referred to other CUB decisions that also suggested that the Commission should warn a claimant before disentitling him.

[65] In my leave to appeal decision, I also referred to the decision of Carpentier v Canada (Attorney General)^{Footnote 34}. I did so because this is a decision of the Federal Court of Appeal, and I am required to follow the direction of the Federal Court of Appeal. I noted that the Court in Carpentier seemed to consider it relevant that the claimant in that case had not received news of his claim or notice of any problem before he was disentitled.

[66] However, Carpentier does not say that the Commission is required to warn a claimant to expand his or her job search. The Court found that the Umpire’s decision was difficult to understand because the Commission had not notified the Claimant about its concerns with his job search, but it did not rely on this. The Court overturned the Umpire decision because the Umpire failed to consider all the facts. The Umpire had not considered that the claimant was known to be out of work only temporarily. It had not considered that the employer had been forced to lay the claimant off because of lack of funds but that it expected to be able to call the claimant back in three months. Finally, the Umpire had not considered that the claimant actually returned to work for his employer within about two months on a part-time basis.

[67] Neither Carpentier, nor any other binding legal authority of which I am aware, would require the Commission to warn a claimant that it will not accept the sufficiency of his or her job search efforts. CUB decisions (decisions of the Umpire) are not binding on me. Furthermore, I am not persuaded that the Commission must pay benefits to a claimant for a period in which the claimant’s job search efforts are insufficient, unless it first warns the claimant that those efforts will not be sufficient. I am not even satisfied that the Commission is authorized to pay benefits to a claimant for any period in which it does not accept that the claimant can prove his or her availability.

[68] In this case, the Commission did not adjudicate the Claimant’s entitlement until two months after he submitted his application. In most cases, the Commission learns that a claimant cannot prove his or her availability (for some period) after it has already paid the claimant benefits. It is usually too late to warn the claimant because the claimant would already have received benefits to which he or she was not entitled. The law requires claimants to repay benefits to which they are not entitled.^{Footnote 35} It may be no comfort to the Claimant, but his position is no worse than that of a claimant who received benefits and then had to pay them back.

[69] If the Commission was always required to pay claimants benefits where it had not first warned the claimant that his or her efforts were not sufficient, this would mean one of two things. Either a large number of claimants would be able to receive and retain several weeks of benefits without having to be available for work (which is contrary to the law), or; everyone’s benefit payments would be delayed because the Commission could not pay them until it first reviewed their job search plan.

[70] The Commission does not normally require claimants to submit some kind of job search plan and get the Commission’s approval before it pays benefits. It generally relies on claimants’ regular claim reports, in which claimants declare that they are capable and available for work. However, the Commission does expect that all claimants will be ready to prove their availability and it can always ask them to do so. By law, claimants who cannot prove their availability for every working day in their benefit period are disentitled from receiving benefits (for the days that they cannot prove they are available).^{Footnote 36}

[71] I recognize that the Claimant’s job search might have been more extensive if the Claimant had understood that he would not otherwise be entitled to benefits. However, the application for benefits completed by the Claimant informed him that the Commission requires claimants to be capable of and available for work to receive benefits. It explained that claimants must actively search for work, and set out some of the ways in which claimants can prove that they are available for work. It identified the claimant’s obligation to keep records to prove his or her job search.^{Footnote 37}

[72] The Claimant accepted the rights and responsibilities described in his application. He may not have known what minimum level of job search effort would allow him to collect benefits, but he cannot assert he had no idea of what was expected of him. If he wanted to be certain of his entitlement, he could have contacted a Commission agent and discussed his job search plans. He could also have engaged in more of the job search activities, and with greater frequency and intensity.

[73] The Claimant apparently engaged in a few of the usual job search activities to some degree, but he had no records and he was unable to satisfy the Commission that he had searched for work in a significant way. Likewise, he has not satisfied me that his job search efforts between September 3 and December 13, 2019, were sufficient.

[74] I find that the Claimant is not entitled to benefits between September 3 and December 13, 2019.

Conclusion

[75] The appeal is dismissed. I have discovered errors in how the General Division made its decision and I have corrected those errors. However, I have reached the same decision as the General Division.