Employment Insurance (EI)

Decision

[1] The appeal is allowed. The Claimant wasn’t able to work because of his injury. And, the Claimant would have been available for work if he hadn’t been injured. His injury was the only thing stopping him from being available for work.

Overview

[2] The Claimant is from Algeria. He has international student status. He has a study permit to take training at an institution in Quebec. He is studying auto mechanics, and he works 25 hours a week, as permitted by his study permit.

[3] On March 28, 2021, he stopped working because of an injury. He was in a car accident. He filed a claim for Employment Insurance (EI ) benefits with the Commission.

[4] The Commission refused to pay him benefits because he hadn’t shown that he was available for work. A claimant who is a full-time student is presumed to be unavailable for work. The Claimant also can’t be available every day because of his study permit.

[5] The Claimant disagrees with the Commission. He has [a] study permit that doesn’t allow him to work full-time. He is not responsible for the situation.

Issue

[6] The Claimant wasn’t able to work because of his injury. But, was his injury the only thing stopping him from being available for work?

Analysis

[7] It is clear that, if you are sick or injured, you aren’t available for work. The law for EI sickness benefits reflects this. However, the law says that, if you are asking for sickness benefits, you must otherwise be available for work. This means that the Claimant has to prove that his injury is the only reason why he wasn’t available for work.^{Footnote 1}

[8] The Claimant has to prove this on a balance of probabilities. This means that he has to show that it is more likely than not that he would have been available for work if it hadn’t been for his injury.

Available for work

[9] Case law sets out three factors for me to consider when deciding whether a claimant is available for work. A claimant has to prove the following three things:^{Footnote 2}

1. They want to go back to work as soon as a suitable job is available.
2. They are making efforts to find a suitable job.
3. They haven’t set personal conditions that might unduly limit their chances of going back to work.

[10] The Claimant doesn’t have to show that he is actually available. He has to show that he would have been able to meet the requirements of all three factors if he hadn’t been injured. In other words, the Claimant has to show that his injury was the only thing stopping him from meeting the requirements of each factor.

Wanting to go back to work

[11] The Claimant has shown that he would have wanted to go back to work as soon as a suitable job was available.

[12] I accept that the Claimant is from Algeria. He has an international student permit. He can work 20 hours a week.

[13] Before his injury, he was working 20 hours a week. He would like to work more hours, but he is limited to 20 hours a week. If he hadn’t been injured, he would have worked.

Making efforts to find a suitable job

[14] The Claimant has shown that he would have made enough efforts to find a suitable job.

[15] I accept that the Claimant already has a job. If he hadn’t been injured, he would have continued working.

Unduly limiting chances of going back to work

[16] The Claimant took training in auto mechanics from March 29, 2021, to June 11, 2021. He worked 20 hours a week, as permitted by his study permit. He was in a car accident. He could not work between April 8 and June 10, 2021.

[17] He applied for a work permit as of June 11, 2021. He was waiting on a work permit to work full-time.

[18] According to the Commission, the Claimant was limited to working 20 hours a week between March 29, 2021, and June 11, 2021, under the Immigration and Refugee Protection Regulations. Additionally, he unduly limited his availability to 20 hours a week from June 13, 20210 [sic], because he made the personal choice to wait for his work permit before offering greater availability.

[19] The Commission relied on the information available on the Government of Canada’s Immigration and Citizenship website to find that he had made the personal choice to work only 20 hours a week.

[20] The Claimant says that he could not work more than 20 hours a week because of the conditions of his study permit. It wasn’t a personal choice, but a legal obligation.

[21] I understand that I am deciding an issue of availability when a claimant is sick or injured. In this context, I am of the view that the Commission’s submissions for the period after June 11 aren’t relevant.

[22] The Claimant applied for EI benefits after an injury resulting from a car accident. He was unable to work from March 29, 2021, to June 11, 2021. I don’t have to decide the Claimant’s availability after his sick leave ended.

[23] I now have to determine whether the Claimant has personal limitations that would have prevented him from working if he hadn’t been injured. Do the conditions imposed by the Act constitute personal limitations?

[24] In my view, the limitations imposed by the Act aren’t personal limitations. The Claimant doesn’t have control over the conditions of his study permit. They are the conditions set out in the Act so that he can study and work in Canada. If he doesn’t meet his conditions, he is penalized. So, it isn’t a personal choice. Just like someone who has physical and functional limitations, it isn’t a personal choice.

[25] Additionally, when a claimant is unable to work because of an illness or injury, they don’t have to prove they are available for work and unable to find a suitable job, as the Commission claims.

[26] Section 18(1)(b) of the Employment Insurance Act (Act) doesn’t say that a claimant who is unable to work because of an illness or injury has to show that they would have been available for work and unable to find a suitable job. Section 9.002 of the Employment Insurance Regulations, which defines suitable employment, doesn’t apply to section 18(1)(b), but to section 18(1)(a) of the Act. So, the notion of suitable employment doesn’t apply in the case of inability to work because of an illness or injury.

[27] When a claimant is taking training^{Footnote 3} that the Commission didn’t authorize, they are presumed to be unavailable for work.^{Footnote 4} Rebutting this presumption requires evidence of exceptional circumstances. A claimant can also show that they have a history^{Footnote 5} of working full-time while also taking training full-time.

[28] In my view, the Claimant’s situation is exceptional. His work hours are limited. He can’t work more than 20 hours a week. This is related to his study permit.

[29] Concerning his studies, I consider that he could change his study schedule to be able to work 20 hours a week.

[30] In this context, I find that, if the Claimant hadn’t been sick, he would have been available for work. He already had a job.

Conclusion

[31] The Claimant has shown that he would have been available for work within the meaning of the law. Because of this, I find that the Claimant is entitled to EI sickness benefits for the period from March 29, 2021, to June 11, 2021.

[32] The appeal is allowed.