Employment Insurance (EI)

Decision

[1] I am dismissing the appeal. I do not agree with the Claimant.

[2] The Claimant hasn’t shown she is entitled to Employment Insurance (EI) benefits while outside Canada. This means she is disentitled from receiving benefits.

[3] The Claimant is subject to a second disentitlement. This is because she has not met the availability requirements to receive regular benefits.

Overview

[4] The Commission decided that the Claimant is not entitled to benefits while she is outside Canada. They imposed two disentitlements effective November 18, 2019. One disentitlement is for being outside Canada. The other is for failing to meet the availability requirements during her absence.

[5] The Claimant told the Commission that she left Canada on November 17, 2019, for a personal vacation. She says she has been unable to return to Canada since the COVID-19 pandemic happened. She had a return flight scheduled for April 7, 2020, but the airline cancelled it. She is not looking for work while she is outside Canada.

[6] The Claimant appeals to the Social Security Tribunal. She states that her husband’s circumstances are the same as hers so she should be entitled to EI benefits on the same grounds he was paid. The Commission refuses to change their decision. They say the facts of someone else’s claim cannot determine the outcome of the Claimant’s appeal. I find the Claimant has not proven her entitlement to benefits while she is outside Canada. Nor has she shown that she meets the availability requirements.

Issues

[7] Has the Claimant shown she is entitled to EI benefits while she is outside Canada?

[8] Does the Claimant meet the availability requirements for EI benefits? To prove this she must show that she was capable of, available for, and actively seeking suitable employment since her departure from Canada.

Matter I have to consider first

The Claimant was not at the hearing

[9] The Claimant wasn’t at the hearing. A hearing can go ahead without the Claimant if the Claimant got the notice of hearing.^{Footnote 1} The Claimant designated her son to be her representative. He appeared at the hearing and confirmed receipt of the notice of hearing. He told me that the Claimant asked that the hearing proceed in her absence. He said she is still in India and chose not to appear because of the time change. So, the hearing took place when it was scheduled, but without the Claimant.

Analysis

Outside Canada

[10] A claimant is not entitled to receive benefits for any period that they are not in Canada.^{Footnote 2} There are exceptions where a claimant is entitled to receive regular benefits, but it depends on the reason they are outside of Canada.^{Footnote 3}

[11] The Commission states the Claimant does not meet any of the exceptions for being outside Canada because she left for a vacation. They determined she is not entitled to the payment of EI benefits as of November 18, 2019.

[12] The Claimant does not dispute that she has been outside Canada since November 18, 2019. She left Canada for a vacation. There is no evidence to dispute this. So, I find as fact that the Claimant has been outside Canada on vacation as of November 18, 2019. The Claimant’s representative told me that she remains outside Canada.

[13] The Claimant told the Commission that she was not able to return on April 7, 2020, as previously scheduled. This is because the airline cancelled her flight due to the COVID-19 pandemic. She states she should be paid benefits because her husband left Canada with her but the Commission still paid him EI benefits. I agree with the Commission that the facts involving errors they may have made on someone else’s claim are not relevant to the issues I must determine in this appeal.

[14] I am sympathetic to the Claimant’s situation with being outside Canada during the COVID-19 pandemic. However, as exceptional as her circumstances may be, they do not meet the requirements to be paid benefits while outside Canada. During the hearing, I reviewed the exceptions that would allow benefits while outside Canada.^{Footnote 4} The representative confirmed that the exceptions do not apply to the Claimant’s circumstances. She left Canada for a vacation and remains in India because the airline cancelled her flight. Accordingly, I find that the reason the Claimant is outside Canada does not meet any of the exceptions listed in the Regulations.

So, is the Claimant entitled to benefits while outside Canada?

[15] No. Based on my findings above, I find that the reasons provided by the Claimant do not meet any of the exemptions to allow payment of benefits while she is outside Canada. Therefore, the Claimant is not entitled to receive EI benefits for the period she is outside Canada, effective November 18, 2019.^{Footnote 5}

Availability

[16] Two different sections of the law require claimants to show that they are available for work. The Commission decided that the Claimant was disentitled under both of these sections. So, she has to meet the criteria of both sections to get benefits.

[17] First, the Act says that a claimant has to prove that they are making “reasonable and customary efforts” to find a suitable job.^{Footnote 6} The Regulations give criteria that help explain what “reasonable and customary efforts” mean.^{Footnote 7} I will look at those criteria below.

[18] Second, the Act says that a claimant has to prove that they are “capable of and available for work” but aren’t able to find a suitable job.^{Footnote 8} Case law gives three things a claimant has to prove to show that they are “available” in this sense.^{Footnote 9} I will look at those factors below.

[19] The Commission decided that the Claimant is disentitled from receiving benefits because she isn’t available for work based on these two sections of the law.

[20] I will now consider these two sections myself to determine whether the Claimant is available for work.

Reasonable and customary efforts to find a job

[21] The law sets out criteria for me to consider when deciding whether the Claimant’s efforts are reasonable and customary.^{Footnote 10} I have to look at whether her efforts are sustained and whether they are directed toward finding a suitable job. In other words, the Claimant has to have kept trying to find a suitable job.

• assessing employment opportunities
• contacting employers who may be hiring
• applying for jobs.

[23] The Commission says that the Claimant isn’t doing enough to try to find a job. The Commission says that the Claimant told them that she is not looking for work while she is outside Canada. The Claimant does not dispute this.

[24] I find that the Claimant has not made reasonable and customary efforts to find a job. This is because she is making no effort to assess employment opportunities or apply for jobs while she is outside Canada.

[25] The Claimant hasn’t proven that her efforts to find a job are reasonable and customary. Rather, she has clearly stated that she hasn’t made any efforts to find a job since leaving Canada on a vacation.

Capable of and available for work

[26] Case law sets out three factors for me to consider when deciding whether the Claimant is capable of and available for work but unable to find a suitable job. The Claimant has to prove the following three things:^{Footnote 12}

1. She wants to go back to work as soon as a suitable job is available.
2. She has made efforts to find a suitable job.
3. She hasn’t set personal conditions that might unduly (in other words, overly) limit her chances of going back to work.

[27] When I consider each of these factors, I have to look at the Claimant’s attitude and conduct.^{Footnote 13}

Wanting to go back to work

[28] The Claimant has shown that she wants to go back to work as soon as she is back in Canada and a suitable job is available. The representative consistently states that the Claimant is trying to get back to Canada so she can return to work as a farm worker. I see no evidence to dispute this. So I find as fact that the Claimant has shown the desire to return to work.

Making efforts to find a suitable job

[29] The Claimant does not meet this second factor. This is because she has not made any efforts to find a suitable job while she is outside Canada. The Claimant has told the Commission that she is not looking for work while she is outside Canada. She does not dispute the Commission’s statement that the Claimant is not able to return to Canada within 48 hours of receiving a job offer.

[30] The Representative argues that the Claimant wants to return to Canada to work. He says this situation is out of the Claimant’s hands. She is dependant on the airline to schedule her return flight. He states the Claimant has tried two or three times to book a flight back to Canada but each time the airline has cancelled her ticket. He disputes the Commission’s submission that she has not made any efforts to return with another airline. He states that the airline has refused to issue her a refund so she has no choice but to wait until they schedule her on a return flight. She does not have enough money to book a return flight with a different airline.

Unduly limiting chances of going back to work

[31] The Claimant has unduly limited her chances of returning to work because she remains outside Canada. This personal condition limits her chances of going back to work.

[32] I recognize the circumstances resulting from the COVID-19 pandemic are exceptional. However, the law states that the objective question of availability cannot depend on the particular reasons for the restrictions on availability, even if they may evoke a sympathetic concern.^{Footnote 14}

[33] The Claimant may have the desire to return to work in Canada. However, there is no evidence that she has made any efforts to find suitable employment. The Claimant does not dispute the fact that she cannot return to Canada within 48 hours of receiving a job offer because of her difficulty in arranging a flight back to Canada.

So, is the Claimant capable of and available for work?

[34] No. Based on my findings on the three factors, I find that the Claimant hasn’t shown that she is capable of and available for work but unable to find a suitable job.

Conclusion

[35] The appeal is dismissed. This means the Claimant is not entitled to EI benefits while she is outside Canada and not available for work.