Employment Insurance (EI)

Decision

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

Overview

[2] The Applicant (Claimant) was collecting the Canada Emergency Response Benefits (CERB). Then, he started collecting EI regular benefits. He told the Commission that he was also in school. The Commission paid benefits for several months but then investigated the Claimant’s availability for work. The Commission decided that the Claimant was not available for work from October 4, 2020 to April 30, 2021 because he was a full-time student. The Commission made this decision retroactively and asked the Claimant to repay benefits. Upon reconsideration, the Commission maintained its initial decision. The Claimant appealed the reconsideration decision to the General Division.

[3] The General Division found that the Claimant was not available for work within the meaning of the law from October 4, 2020, to April 30, 2020, because he was attending full time school.

[4] The Claimant now seeks leave to appeal of the General Division’s decision to the Appeal Division. He submits that he was automatically transferred from CERB to EI benefits by the system on September 2020, without him applying for it. He puts forward that he was not made aware of the availability requirements and that if he had not been automatically transferred to EI benefits in October 2020, he could have applied for CRB. The Claimant puts forward that he was available 45 hours a week while attending school.

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

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

Issue

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

Analysis

[8] Section 58(1) of the Department of Employment and Social Development 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.

[9] 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 his 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.

[10] 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?

[11] The Claimant submits that he was automatically transferred from CERB to EI benefits by the system on September 2020, without him applying for it. He puts forward that he was not made aware of the availability requirements and that if he had not been automatically transferred to EI benefits in October 2020, he could have applied for CRB. The Claimant puts forward that he was available 45 hours a week while attending school.

[12] 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 1}

[13] 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 2}

[14] 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 3}

[15] The General Division found that the Claimant did not overcome the presumption that he was not available for work while attending full time school. It found that the Claimant was not looking for work because he already had a part-time job that satisfied him. The General Division found that the Claimant’s school schedule set personal conditions that unduly limited his chances of going back to work. It concluded that the Claimant was not available for work under the law.

[16] The evidence shows that the Claimant was a full-time student in a full-time program. He was not willing to give up his course to take a full-time job. Both of those restricted him from obtaining full-time jobs during regular daytime business hours, Monday to Friday.

[17] 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.

[18] 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 4}

[19] The evidence supports the General Division’s conclusion that the Claimant did not demonstrate that he was available for work but unable to find a suitable job. 

[20] 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.

[21] Furthermore, although I am sympathetic to the Claimant’s situation, the Federal Court of Appeal has constantly held that a claimant who receives money to which they are not entitled, even following a mistake of the Commission, are not excused from having to repay it.^{Footnote 5}

[22] 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 have no choice but to find that the appeal has no reasonable chance of success.

Conclusion

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