Employment Insurance (EI)

Decision

[1] M. L. is the Claimant. The Canada Employment Insurance Commission (Commission) made a decision about his Employment Insurance (EI) benefits. He is appealing this decision to the Social Security Tribunal (Tribunal).

[2] I am dismissing the Claimant’s appeal. He hasn’t proven that he was available for work within the meaning of the law. This means he can’t receive EI benefits.

Overview

[3] The Claimant was collecting EI sickness benefits. After his sickness benefits ended, he asked the Commission to pay EI regular benefits. The Commission refused to pay EI regular benefits. The Commission decided that the Claimant hadn’t proven that he was available for work starting February 7, 2021.

[4] You have to be available for work to get EI regular benefits. Availability is an ongoing requirement. This means that you have to be searching for a job. You have to prove this on a balance of probabilities. This means that you have to show that it is more likely than not that you were available for work.

[5] The Commission says the Claimant hasn’t proven that he was available for work. The Commission says the Claimant refused to return to work and didn’t make enough job search efforts.

[6] The Claimant disagrees. He says he was available for work. He says he wanted to work and was looking for work after he stopped collecting EI sickness benefits.

Matter I have to consider first

I won’t accept the Commission’s documents sent in after the hearing

[7] At the hearing, the Claimant talked about his job search efforts. I gave him time to submit another job search record after the hearing. We agreed on a deadline of October 8, 2021. The Claimant sent business cards and other information about his job search before the deadline. I am accepting these documents because I asked the Claimant to send them. The Commission received copies of the documents.

[8] After the Claimant sent his information, the Commission made more submissions. But, the Commission could have participated in the hearing. The Claimant and I talked about his job search record and we agreed that he would send more information. The Commission could have participated in that conversation. So, I will not accept the Commission’s new submissions. I will not use the Commission’s extra submissions as I make my decision.

Issue

[9] Is the Claimant available for work?

Analysis

[10] There are two sections of the law that say you have to prove that you are available for work.

[11] First, the Employment Insurance Act (Act) says that you have to prove that you are making “reasonable and customary efforts” to find a suitable job.^{Footnote 1} The Employment Insurance Regulations (Regulations) give criteria that help explain what “reasonable and customary efforts” mean.^{Footnote 2} I will look at those criteria below.

[12] Second, the Act says that you have to prove that you are “capable of and available for work” but aren’t able to find a suitable job.^{Footnote 3} Case law gives three things you have to prove to show that you are “available” in this sense.^{Footnote 4} I will look at those factors below.

[13] The Commission says it used both sections of the law to refuse EI benefits to the Claimant. So, I will look at both sections to make my decision.

Reasonable and customary efforts to find a job^{Footnote 5}

[14] The law sets out criteria for me to consider when deciding whether the Claimant’s efforts are reasonable and customary.^{Footnote 6} I have to look at whether his 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.

[15] I also have to consider the Claimant’s efforts to find a job. The Regulations list nine job-search activities I have to consider. Some examples of those activities are the following:^{Footnote 7}

• registering for job-search tools or with online job banks or employment agencies
• attending job-search workshops or job fairs
• networking
• contacting employers who may be hiring
• applying for jobs

[16] The Claimant says he was looking for work beginning in February 2021.

[17] The Commission disagrees. The Commission says that the Claimant didn’t do enough to try to find a job. The Commission says the Claimant didn’t contact enough employers.

[18] I agree with the Commission. I find that the Claimant hasn’t given enough evidence to prove that his job search activities were sustained. I also think he wasn’t doing enough kinds of job search activities to show that his efforts were reasonable and customary.

[19] I acknowledge that the Claimant has always said that he was looking for work. But he hasn’t provided convincing evidence showing his job search efforts. When he spoke to the Commission, he couldn’t name any of the places he applied for work. Later on, he gave the Commission a job search record that said he looked for work by reading the newspaper and visiting employers in person. According to his job search record, these were his job search activities:

• On March 31, 2021, he read about three job opportunities in the newspaper
• On April 16, 2021, he visited a prospective employer in person
• On April 19, 2021, he visited a prospective employer in person and read about two job opportunities in the newspaper
• On June 18, 2021 he read about a job opportunity in the newspaper

[20] At the hearing, the Claimant said he visited many more employers in person, but he couldn’t remember the dates. After the hearing, he submitted 19 business cards and a note dated February 15, listing three employers.

[21] The Commission says that this isn’t evidence of a sustained, reasonable and customary job search, and I agree.

[22] The Claimant didn’t give evidence showing that he tried many different kinds of job search activities. At the hearing, he didn’t talk about using online job banks, going to job search workshops, or getting help from an employment counsellor. He only said he spoke to family and friends and went to prospective employers in person.

[23] The dated job search record shows that he only engaged in job search activities once or twice a month. I don’t give much weight to the collection of business cards, because the Claimant didn’t give extra information about when he contacted these employers or what kinds of jobs they had available. Also, the Claimant only provided the business cards after the Commission said he wasn’t doing enough to look for a job. The Claimant could have provided more details about his job search efforts when he first spoke to the Commission about his availability for work. I think his later statements aren’t as reliable because he didn’t give this information to the Commission right away.

[24] The Claimant is asking for regular EI benefits starting February 7, 2021. This means that he has to show that he was making regular, reasonable, and customary job search efforts from February 7, 2021 onwards. I find that the evidence of the job search record and the collection of business cards isn’t enough to prove that his job search efforts were sustained. The evidence isn’t enough to prove that he was making reasonable and customary job search efforts.

Capable of and available for work

[25] The second part of the law that talks about availability for work says you have to prove that you are available for work. You have to show that you are capable of working, but that you have not been able to find a suitable job.^{Footnote 8}

[26] This is how you prove that you are available for work:

• You must show that you want to get back to work as soon as someone offers you a suitable job. Your attitude and actions should show that you want to get back to work as soon as you can;
• You must make reasonable efforts to find a suitable job;
• You shouldn’t set limits that might prevent you from finding a job. If you do set any limits on your job search, the limits should be reasonable.^{Footnote 9}

[27] So, I will look at each of these three factors and decide if the Claimant has proven that he was capable of and available for work but unable to find a suitable job.

Wanting to go back to work

[28] There is conflicting evidence about whether the Claimant wanted to go back to work. I agree that he has always told the Commission that he wanted to work. At the hearing, he said he wanted to work.

[29] But the Claimant had a job. He was on sick leave, but he didn’t return to work after he recovered.

[30] I have to look at the Claimant’s actions when I decide if he has proven that he had a desire to work. I find that his actions – refusing to return to work when he had a job available to him – don’t show that he had a desire to return to work. So, I find that the Claimant hasn’t met this first factor. He hasn’t proven that he wanted to return to work as soon as a job was available.

Making efforts to find a suitable job

[31] I find that the Claimant hasn’t made enough efforts to find a suitable job.

[32] I have to use the list of job search activities from the Regulations when I look at the first part of the law. Now that I am looking at the Claimant’s availability for work under the second part of the law, I don’t have to use the list of job search activities. But, I think the list of job search activities are useful when I look at this second factor. I will use the list of job search activities to help me make a decision about the second factor.^{Footnote 10}

[33] The Claimant said he looked for work by going in-person to prospective employers and reading the newspaper. He also said he spoke to family and friends. His job search record only shows one or two job contacts a month. He also submitted several business cards, but he didn’t explain when he contacted these employers or what kinds of jobs they had. I have already explained why I don’t think the Claimant has proven that he was making reasonable and customary job search efforts, based on this evidence.

[34] For the same reasons, I don’t think the Claimant has proven that he made enough job search efforts to meet this factor. I don’t think he has proven that his job search efforts were frequent enough. I don’t give much weight to the business cards because the Claimant only gave these details after the Commission said he wasn’t making enough job search efforts.

[35] I find that the Claimant hasn’t shown that he made enough job search efforts to meet the second factor.

Unduly limiting chances of going back to work

[36] The Claimant didn’t say he set any personal conditions on the type of work. The Commission hasn’t made any arguments about whether the Claimant set personal conditions.

[37] I find that the Claimant didn’t set any personal conditions that unduly limited his chances of returning to work. But this factor alone isn’t enough for the Claimant to prove that he was available for work.

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

[38] I find that the Claimant didn’t set any personal conditions that limited his chances of returning to work. But the Claimant hasn’t proven that he had a desire to return to work as soon as a suitable job was available. He hasn’t proven that he was making reasonable efforts to return to work. So, I find that the Claimant hasn’t proven that he was capable of and available for work but unable to find a suitable job.

Conclusion

[39] I am dismissing the Claimant’s appeal. I find that he hasn’t shown that he was available for work within the meaning of the law from February 7, 2021. So, I find that he isn’t entitled to EI benefits.