Employment Insurance (EI)

Decision

[1] Leave to appeal is refused. The appeal will not proceed.

Overview

[2] The Respondent, the Canada Employment Insurance Commission (Commission), decided that the Applicant (Claimant) was disentitled from receiving Employment Insurance (EI) regular benefits as of December 28, 2020, because she was taking a training course on her own initiative, and had not proven that she was available for work. Upon reconsideration, the Commission maintained its initial decision. The Claimant appealed the reconsideration decision to the General Division.

[3] The General Division found that by attending a full-time course of education, the Claimant set personal conditions that unduly limited her chances of going back to work. The General Division concluded that the Claimant did not show that she was capable of, and available for work but unable to find a suitable job.

[4] The Claimant seeks leave to appeal of the General Division’s decision to the Appeal Division.  She essentially submits that the General Division erred in fact or in law in its interpretation of section 18(1) of the Employment Insurance Act (EI Act) and in applying the Faucher test.^{Footnote 1}

[5] During the appeal process, the Claimant filed an application to rescind or amend the General Division decision. The General Division dismissed the Claimant’s application. The Claimant did not file an application for leave to appeal of the General Division rescind or amend decision. Therefore, that decision is not before me.

[6] I must decide whether there is some reviewable error of the General Division upon which the appeal might succeed.

[7] I am refusing leave to appeal because the Claimant’s appeal has no reasonable chance of success.

Issue

[8] Does the Claimant raise some reviewable error of the General Division upon which the appeal might succeed? 

Analysis

[9] Section 58(1) of the Department of Employment and Social Development Act (DESD Act) specifies the only grounds of appeal of a General Division decision. These reviewable errors are that:

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.

[10] An application for leave to appeal is a preliminary step to a hearing on the merits. It is an initial hurdle for the Claimant to meet, but it is lower than the one that must be met on the hearing of the appeal on the merits. At the leave to appeal stage, the Claimant does not have to prove her case but must establish that the appeal has a reasonable chance of success based on a reviewable error.  In other words, that there is arguably some reviewable error upon which the appeal might succeed.

[11] Therefore, before I can grant leave, I need to be satisfied that the reasons for appeal fall within any of the above-mentioned grounds of appeal and that at least one of the reasons has a reasonable chance of success. 

Does the Claimant raise some reviewable error of the General Division upon which the appeal might succeed?

[12] The Claimant puts forward that the General Division erred in fact or in law in its interpretation of section 18(1) of the EI Act and in applying the Faucher test.

[13] To be considered available for work, a claimant must show that he is capable of, and available for work and unable to obtain suitable employment.^{Footnote 2}

[14] Availability must be determined by analyzing three factors:

1. (1) the desire to return to the labour market as soon as a suitable job is offered,
2. (2) the expression of that desire through efforts to find a suitable job, and
3. (3) not setting personal conditions that might unduly limit the chances of returning to the labour market.^{Footnote 3}

[15] Furthermore, availability is determined for each working day in a benefit period for which the claimant can prove that on that day he was capable of and available for work, and unable to obtain suitable employment.^{Footnote 4}

[16] The General Division found that although the Claimant had a reduced in-person attendance, and a reduced workload outside school, she was still going to school. It determined that up to the end of January 2021, the Claimant was taking two courses per quarter that required attendance at mandatory classes. Those classes were for three hours on two consecutive days, with two additional one-hour online classes. All those classes took place Monday to Friday during regular daytime business hours. Furthermore, the General Division did not believe the Claimant no longer attended school from February to April 2021. It gave more weight to the Claimant’s previous declarations to conclude that the Claimant still attended school a few hours a day during that period.^{Footnote 5}

[17] The General Division found that by attending a full-time course of education, the Claimant set personal conditions that unduly limited her chances of going back to work. It found that even if the Claimant had a reduced workload, she was still a full-time student in a full-time program. She was willing to work full-time, but could not change her mandatory course attendances. She was not willing to give up her course to take a full-time job. The General Division found that both of those restrictions prevented her from obtaining full-time jobs during regular daytime business hours, Monday to Friday.

[18] The General Division concluded that the Claimant did not show that she was capable of, and available for work but unable to find a suitable job.

[19] The EI Act clearly states that to be entitled to benefits, a claimant must establish their availability for work, and to do this, they must look for work. A claimant must establish their availability for work for each working day in a benefit period and this availability must not be unduly limited.

[20] Furthermore, availability must be demonstrated during regular hours for every working day and cannot be restricted to irregular hours resulting from a course schedule that significantly limits availability.^{Footnote 6}

[21] The evidence supports the General Division’s conclusion that the Claimant has not rebutted the presumption of non-availability. The Claimant’s school schedule is not flexible and requires the employer to tailor her working schedule to accommodate her. She also declared that she was not wiling to leave the course for full-time employment during regular hours for every working day.

[22] I see no reviewable error made by the General Division. The Claimant does not meet the relevant factors to determine availability. Although the academic efforts of the Claimant deserve praise, this does not eliminate the requirement to show availability within the meaning of the EI Act.

[23] After reviewing the appeal file, the General Division decision, and the Claimant’s arguments, I find that the General Division considered the evidence before it and properly applied the Faucher factors in determining the Claimant’s availability. I could not find any failure by the General Division to observe a principle of natural justice. I have no choice but to find that the appeal has no reasonable chance of success.

Conclusion

[24] Leave to appeal is refused. This means the appeal will not proceed.