Employment Insurance (EI)

Decision

[1] The appeal is allowed. The file is returns to the General Division for reconsideration.

Overview

[2] The Appellant (Claimant) applied for sickness benefits because he was having trouble with a shoulder injury. In December 2020, his doctor told him he should take a medical leave from his job. When he applied for sickness benefits, the Respondent, the Canada Employment Insurance Commission (Commission), told him that he was not entitled to sickness benefits. It said that he was going to school and limiting himself to his pre-disability employer. The Commission said that the Claimant would not have been available for work even if he had not been injured.

[3] The Claimant asked the Commission to reconsider arguing that his courses were online and his school schedule did not interfere with his ability to work. The Commission would not change its decision so the Claimant appealed to the General Division. The General Division dismissed his appeal.

[4] The Appeal Division granted the Claimant leave to appeal. It found that the Claimant raised a reviewable error with a reasonable chance of success in the manner in which the General Division determined the Claimant’s availability for work.

[5] I must decide whether the General Division made an error in fact or in law when it concluded that the Claimant was not available for work from November 15, 2020 through to December 9, 2020, and when it concluded that the Claimant was not available for work had he not been sick December 10, 2020, and onwards.

[6] I am allowing the Claimant’s appeal. The file returns to the General Division for reconsideration.

Issues

[7] Issue no 1: Did the General Division make an error in fact or law when it concluded that the Claimant was not available for work from November 15, 2020, through to December 9, 2020?

[8] Issue no 2: Did the General Division make an error in fact or law when it concluded that the Claimant was not available for work had he not been sick from December 10, 2020, and onwards?

Analysis

Appeal Division’s mandate

[9] The Federal Court of Appeal has determined that when the Appeal Division hears appeals pursuant to section 58(1) of the Department of Employment and Social Development Act (DESD Act), the mandate of the Appeal Division is conferred to it by sections 55 to 69 of that Act.^{Footnote 1}

[10] The Appeal Division acts as an administrative appeal tribunal for decisions rendered by the General Division and does not exercise a superintending power similar to that exercised by a higher court.^{Footnote 2}

[11] Therefore, unless the General Division failed to observe a principle of natural justice, erred in law, 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, I must dismiss the appeal.

Did the General Division make an error in fact or law when it concluded that the Claimant was not available for work from November 15, 2020, through to December 9, 2020?

[12] Attending full-time studies creates a rebuttable presumption that the person pursuing the studies is not available for work. That presumption may be rebutted by evidence of "exceptional circumstances"^{Footnote 3}

[13] Case law has established that where a claimant has a work history showing that they held regular employment while studying, it is possible to rebut the presumption of non-availability.^{Footnote 4}

[14] Before the General Division, there was evidence showing that the Claimant had a working history during the school year (while studying) and that he held regular employment with his current employer over the last 3 years.

[15] The General Division however dismissed the appeal without addressing it and as a result, failed to make a finding on whether this was sufficient to rebut the presumption of non-availability.

[16] Furthermore, the General Division did not address whether the Claimant’s school hours limited his availability. It did not consider whether the Claimant had to attend classes in-person at certain times or whether his “asynchronous” school schedule would have interfered with his ability to work.

[17] Finally, the General Division did not ask itself whether the Claimant, who was waiting for an imminent call back from his current employer, could be exempt for a reasonable period of time from having to show an active job search.

[18] For these reasons, I am justified to intervene for the period of November 15, 2020, through to December 9, 2020.

Did the General Division make an error in fact or law when it concluded that the Claimant was not available for work had he not been sick from December 10, 2020, and onwards?

[19] Special conditions apply to claimants who are applying for sickness benefits. They may be entitled to sickness benefits even though they are not capable of work. However, the law also says that they will not be entitled to benefits for any period in which they would not “otherwise” be available for work. In other words, a claimant applying for sickness benefits must show that they would have been available for work, if not for the injury.

[20] The General Division acknowledged that the Claimant did not have to show that he was actually available. It stated that the Claimant had to prove that his illness/injury is the only reason why he was not available for work.

[21] The General Division made an error when it expected the Claimant to prove a desire to return to work and show that he was looking for other work, during a period in which the Claimant was not physically capable of suitable work. It could not require that he be available for work as though he were an unemployed claimant seeking regular benefits.

[22] By applying the Faucher factors in the manner that it did, the General Division made an error of law in how it assessed the Claimant’s availability.^{Footnote 5}

[23] Furthermore, the evidence shows that the Claimant did not return to school until January 11, 2021. The General Division did not consider or analyze this period of time when it determined that the Claimant was not entitled to sickness benefits effective from December 10, 2020.

[24] For these reasons, I am justified to intervene for the period of December 10, 2020, and onwards.

Remedy

[25] I did not have an opportunity to listen to the recording of the General Division hearing because it is not available. I therefore could not evaluate if the Claimant had the opportunity to present his case. In these circumstances, I have no choice but to return the file to the General Division for reconsideration.

Conclusion

[26] The appeal is allowed. The file returns to the General Division for reconsideration.