Employment Insurance (EI)

Decision

[1] The appeal is dismissed.

[2] H. S. (Claimant) hasn’t shown that she was available for work from April 5, 2021. means that she can’t receive regular Employment Insurance (EI) benefits from that date.

Overview

[3] The Claimant was receiving EI sickness benefits. After those ended, on April 7, 2021 the Claimant asked the Canada Employment Insurance Commission (Commission) to convert her claim to regular benefits. The Commission decided that the Claimant disentitled from receiving EI regular benefits from April 5, 2021 because she had not proven she was available for work. A claimant has to be available for work to get EI regular benefits. Availability is an ongoing requirement. This means that a claimant has to be searching for a job.

[4] I have to decide whether the Claimant has proven that she was available for work. The Claimant has to prove this on a balance of probabilities. This means that she has to show that it is more likely than not that she was available for work.

[5] The Commission says that the Claimant wasn’t available for regular benefits from April 5, 2021 because she failed to rebut the presumption of non-availability while enrolled in a full-time university program. The Commission says the Claimant had a personal restriction that unduly limited her ability to return to the labour force as she was only willing to accept part-time work outside her course schedule. The Commission also says that the number of jobs the Claimant has applied to do not express a desire to return to the labour market as soon as suitable employment is offered.

[6] The Claimant disagrees and says that although her school considers her a full-time student, she was approved for a reduced course load of 2 courses as a student with a disability. So she says the presumption of non-availability does not apply. The Claimant says if the presumption does apply, then she has exceptional circumstances that would allow her to rebut it. She says her courses were online with recorded lectures so her schedule was flexible. She also she has maintained a work schedule between 15 and 30 hours a week while attending university and she always choses her course schedule to accommodate work. The Claimant says from April 5, 2021 she was spending between 18 and 24 hours a week on her schooling, which left a lot of time to work. The Claimant says she has medical limitations so suitable work for her was sedentary work or physical work of no more than 30 hours a week. The Claimant says she was looking for and able to accept suitable work while attending school. The Claimant maintains she has been actively seeking work since April 5, 2021.

[7] I have decided, for the reasons set out below, that the Claimant has not proven her availability for work from April 5, 2021.

Matter I have to consider first

Related files heard together

[8] I decided to hear this appeal with related Tribunal file GE-21-1149 as the parties were the same, there were some related facts and there is no apparent prejudice or injustice to either party in doing so. However, as the issues under appeal are different in each case. I have written a separate decision for each appeal.

I will accept the documents sent in after the hearing

[9] The Claimant testified about her job search but had not provided any job search records. I allowed the Claimant an opportunity to provide a job search record post-hearing. The Claimant provided a job search record after the hearing. ^{Footnote 1} I accepted this information into evidence as it is relevant to the issue of availability. As this was new information the Commission had not seen before the hearing, I sent it to the Commission with an opportunity to reply. The Commission sent supplementary submissions on August 25, 2021, which I have also considered in making this decision.^{Footnote 2}

Issue

[10] Was the Claimant available for work while in school from April 5, 2021?

Analysis

[11] Two different sections of the law require claimants to show that they are available for work.

[12] First, the Employment Insurance Act (Act) says that a claimant has to prove that they are making “reasonable and customary efforts” to find a suitable job.^{Footnote 3} The Employment Insurance Regulations (Regulations) give criteria that help explain what “reasonable and customary efforts” mean.^{Footnote 4}

[13] If a claimant does not comply with a request to prove that the claimant has made reasonable and customary efforts, then the claimant may be disentitled from benefits until the claimant complies with a request and supplies the requested information.^{Footnote 5} In order to disentitle a claimant under this section, the Commission must first ask the claimant for proof and specify what kind of proof will satisfy its requirements.^{Footnote 6}

[14] Second, the Act says that a claimant has to prove that they are “capable of and available for work” but aren’t able to find a suitable job.^{Footnote 7} Case law gives three things a claimant has to prove to show that they are “available” in this sense.^{Footnote 8} I will look at those factors below.

[15] The Commission says in its submissions that the Claimant was disentitled for both reasons. However, the Commission did not explain in its submissions how the Claimant failed to provide proof she was making reasonable and customary efforts to find a job. There is also no information in the Commission’s file showing that the Claimant was asked to provide proof she was making reasonable and customary efforts to find a suitable job or told what kind of proof was needed. So, I find as a fact the Claimant was not asked to provide this proof.

[16] Because the Commission did not ask the Claimant to provide proof she was making reasonable and customary efforts to find suitable employment or tell her what kind of proof will satisfy its requirements, I find the Commission cannot disentitle the Claimant to benefits for failing to provide proof that she had made reasonable and customary efforts to obtain employment. ^{Footnote 9}

[17] I will go on to consider whether the Claimant has proven she was available for work.

Presuming full-time students aren’t available for work

[18] The Federal Court of Appeal has said that claimants who are in school full-time are presumed to be unavailable for work.^{Footnote 10} This is called “presumption of non-availability.” It means we can suppose that students aren’t available for work when the evidence shows that they are in school full-time.

[19] I will start by looking at whether I can presume that the Claimant wasn’t available for work. Then, I will look at whether she was available for work.

[20] The presumption that students aren’t available for work applies only to full-time students.

The Claimant disputes that she is a full-time student

[21] The Claimant says that she is not a full-time student.

[22] The Claimant testified that she was completing her fourth year of a full-time psychology program at X University. She had been enrolled from 2003 to 2012 as a part-time student. In September 2018 she enrolled as a full-time student but was approved for a reduced course load of 2 courses as she has a learning disability. She says a full-time student would take between 3 and 5 classes per term. The Claimant explained her school terms run from September to December, January to April and then May to August. There is no summer break.

[23] The Claimant testified that each of her 2 classes had a lecture lasting 2 hours and 50 minutes. Since she had two courses, she spent 5 hours and 40 minutes on lectures per week. On top of that, she spent 12 to 16 hours doing schoolwork. The Claimant estimated from April 5, 2021, she spent approximately 18 and 22 hours per week on her schooling.

[24] The Claimant testified that from April 5, 2021 to the end of that term as well as the summer term starting in May, 2021, all her classes were online, recorded and could be watched at any time. Attendance was not required. The Claimant explained that she completed her school work when she could. She related that due to the pandemic, the university offered a lot of flexibility with scheduling. Some of the same classes were offered at different times. Some were offered at night. Some offered the option of one three hour lecture or two, one and half hour lectures. The Claimant testified she never had a problem working around school.

[25] The Claimant says because she was only taking 2 courses and only spending 18 to 22 hours a week on schooling, she is not a full-time student.

[26] The Commission disagrees. The Commission says the Claimant told them she was attending school full-time. The Commission says that on December 5, 2020, the Claimant completed a questionnaire and said she was spending 15 to 24 hours a week on her course and was considered to be attending full-time. ^{Footnote 11} She said the same thing on a questionnaire dated January 24, 2021. The Claimant also told the Commission’s reconsideration agent on June 7, 2021 that she was spending between 20 and 25 hours a week on her classes, and was considered full-time, although she was taking a reduced course load. ^{Footnote 12}

[27] I accept the Claimant’s credible testimony that although she is considered to be a full-time student, she has a learning disability and is permitted to take a reduced course load of 2 courses. I accept her evidence that the number of courses she is taking is less than other full-time students who would typically take 3 to 5 courses.

[28] The Claimant told the Commission she was spending 15 to 24 hours per week on her courses. She testified she spent 18 to 22 hours per week in total on her schooling. I find as a fact the total time the Claimant spent on her coursework varied between 15 and 24 hours per week.

[29] Although the university considers her program to be full-time, while it is one factor to consider, I am not bound by the university’s categorization. I find a comparison with hours a claimant might spend working also to be a relevant consideration as well as the number of courses being taken.

[30] I find that the Claimant is not attending school on a full-time basis. A typical work week would amount to approximately 35 hours per week. The amount of time the Claimant spends on her studies is, at its highest amount, still 11 hours short of 35 hours per week and at its lowest amount, less than half that. Further the Claimant is only taking 2 courses, which is less than that of a typical full-time student. So, I find the Claimant was not a full-time student and the presumption doesn’t apply to the Claimant.

[31] This means only that the Claimant isn’t presumed to be unavailable for work. I still have to decide whether the Claimant has proven she is actually available for work.

Capable of and available for work

[32] I also have to consider whether the Claimant was capable of and available for work but unable to find a suitable job.^{Footnote 13} Case law sets out three factors for me to consider when deciding this. The Claimant has to prove the following three things:^{Footnote 14}

1. She wanted to go back to work as soon as a suitable job was available.
2. She has made efforts to find a suitable job.
3. She hasn’t set personal conditions that might have unduly (in other words, overly) limited her chances of going back to work.

[33] When I consider each of these factors, I have to look at the Claimant’s attitude and conduct.^{Footnote 15}

Suitable work

[34] The Claimant argues that she was medically restricted from working more than 30 hours a week at physical type jobs, such as cleaning or as a server. She says she could have done a full-time sedentary job.

[35] In order for me to assess whether the Claimant has proven her availability for suitable work, I have to decide what is considered suitable employment for her.

[36] In terms of medical restrictions, the law says that suitable employment for the Claimant is employment that her health and physical capabilities allow her to commute to the place of work and to perform the work.^{Footnote 16}

[37] The Act does not state that a medical report is required to substantiate medical restrictions and the Claimant has not provided a medical report. So, I have to decide if the Claimant’s testimony about her restrictions is credible. The onus is on the Claimant to prove it is more likely than not that she has these restrictions.

[38] The Claimant testified in addition to her learning disability, she has an allergy to clearing products and metals. She also has anxiety and fibromyalgia, and suffers chronic pain. The Claimant says because of her conditions, she is unable to work at any kind of physical work for more than 30 hours per week. She says in the past she had experience doing farm work, waitressing and cleaning, which are all physical jobs. She became self-employed as a cleaner from 2013 to 2019. However, she says that even before she started attending school full-time, she was not able to work at her cleaning business more than 30 hours per week due to her physical limitations. The Claimant related this is why she is pursuing her education, so she can move away from physical work. 

[39] The Claimant says she continued her self-employment after starting school full-time school in September 2018. However, she was finding it was becoming difficult due to her allergies. Because she had prior restaurant experience, she started working part-time at a diner in October 2018. She says she worked Sundays for a 3 hour shift while continuing her cleaning business. The Claimant explained that after getting the job at the diner, she worked there for her 3 hour shift on Sundays, as well as working at her self-employment and attending school full-time on her modified 2 course schedule. She began winding down her cleaning business in October 2019 and had stopped it by the end of 2019.

[40] The Claimant said in October, 2019 she obtained a job at another restaurant. She says she worked concurrently at this new job and the diner job until February 9, 2020 as well as going to school.

[41] The Claimant said her shifts at the restaurant were from Tuesday to Saturday from 4:30 to closing time, which was 8 or 9 p.m., depending on the day. There were some cleaning duties after which would take about a half hour. The Claimant says she was working between 20 to 30 hours per week along with her schooling. As of February 9, 2020, the diner job ended so she was only working at the restaurant.

[42] The Claimant explained that due to the pandemic, the restaurant was closed during the shutdown period and she was laid off. She was called back to work at the end of June, 2020, but only worked Wednesday to Saturday, 4:30 p.m. to close. She lost her Tuesday shift. The Claimant explained the restaurant job lasted until September 2020.

[43] I asked the Claimant about the reconsideration agent’s notes. Those notes said that the Claimant was asked whether a doctor had advised her that due to her disabilities she was permanently only available to work part time. The notes say the Claimant said that was not correct. She was in school so could not work full time. The notes also say the Claimant was asked, “If you were not a student, would you be available for full time work, or would you still be restricted to part time due to your disabilities?” The Claimant’s response was noted as, “I do have a permanent disability that affects certain aspects of my life but it does not affect my ability to work full time.” The notes provide further that the Claimant said she was able to work between 15 and 25 hours around her school and if she was offered a full-time job, she would not be able to accept it.”^{Footnote 17}

[44] The Claimant testified that she did not tell the reconsideration agent that she would not accept a full-time job. She says she told the agent that she can’t work full time in physical jobs so she was in school so that she can eventually work a full-time job. She says the agent told her that she did not consider school a job. The Claimant testified she explained to the agent that she was limited because of disabilities. She says she explained how many hours that she could work in certain areas. She says she never said she wouldn’t work full-time. She says the agent was not listening to her and she even said to the agent, “I don’t think you are hearing what I am saying.” The Claimant says the agent hung up on her during a discussion about whether she had quit her restaurant job. She says she doesn’t believe they were disconnected as the agent did not call her back. So she went to Service Canada to try to follow up. It was suggested to her there that she either wait for a decision or contact her M.P.P. She then went to her M.P.P. to enquire about the status on her behalf.

[45] Although there is no medical evidence on file, I accept the Claimant’s testimony that she was unable to work more than 30 hours per week at physical work including waitressing type work. I find it more likely than not that this was the case because the Claimant gave a credible explanation that she suffers from various conditions including fibromyalgia that limit her ability to work at a physical job for more than 30 hours a week. I find there was more likely than not a miscommunication in the conversation between the Claimant and the Commission’s reconsideration agent. The Claimant believed she was not being heard and the call somehow ended prematurely. So, I am not satisfied the notes fully reflect what the Claimant was trying to communicate to the agent.

[46] So, I find suitable work for the Claimant is sedentary work without restriction and physical work including waitressing of up to 30 hours per week.

Wanting to go back to work

[47] I am not satisfied that the Claimant has shown that she wanted to go back to work as soon as a suitable job was available.

[48] The Claimant’s counsel argues the Claimant had a desire to return to the labour market as soon as a suitable job was available because she applied for jobs and had gone back to work as a self-employed cleaner.

[49] The Commission argues that the Claimant is prioritizing her course over her availability for employment. The Commission also says that the Claimant’s job search record shows that while she has done job searching, she has only applied to 5 positions in 5 months. The work-study position is for work that does not begin until the fall. The Commission says the Claimant’s job search does not express the Claimant’s desire to return to the labour market as soon as suitable employment is offered.

[50] The Claimant says she did want to go back to work as soon as a suitable job was available. She testified that she needed to find work as she has a mortgage to pay. The Claimant explained her job search. She said she stopped in a few places in person but mostly applied online. She looked for jobs on various websites including Service Canada, Workopolis and Indeed as well as the university website. She says she was spending a few hours a day job searching and preparing cover letters and resumes. The Claimant testified she would have accepted a job up to an hour away. She would have accepted day or evening shifts but not overnight jobs.

[51] The Claimant testified about the jobs she had applied to since April 5, 2021. She recalled applying for some case management jobs which were full-time jobs. She recalled applying to be a learning strategist at X College which was a full-time job. She also applied at a thrift store for a job that was 25 hours a week. She dropped off some resumes for farm work as well. She also testified she was volunteering to help newcomers to Canada.

[52] The Claimant thinks she applied for about 6 or 7 jobs since April 5, 2021. She says a lot of jobs she saw didn’t apply to her and a lot of places were shut down so there was not a lot to apply to. She said she has trouble getting references from her last two jobs. The Claimant says because she did not hear anything back from the jobs she applied to, she went back to her self-employment as a cleaner, for about 15 hours a week. The Claimant says she needed to find work so she doesn’t have to continue this self-employment as it bothers her hands. The Claimant testified that she would have accepted full-time non-physical work if it had been offered to her after April 5, 2021 and physical work for up to 30 hours. She says her schooling was flexible and would not have interfered with that. She says even though she is taking two classes, she could have gone down to one class to finish her degree.

[53] The Claimant’s job search record notes the Claimant was engaged in self-employment from the week of April 10, 2021. It shows four job applications since April 5, 2021. The Claimant notes spending many hours resume building and job searching.

[54] While the Claimant’s testimony was that she needed a job so she could pay her mortgage and was trying to find a job as soon as possible, I find her conduct does not demonstrate that. In that regard, the number of jobs she applied to since April 5, 2021 was very limited as was the type of jobs she applied to.

[55] The Claimant’s job search information shows she applied to be a thrift store supervisor on April 9, 2021. She also dropped off some resumes at farms from June 25 to June 30, 2021. She next applied on July 21, 2021 for two case-management positions at the same place. She then applied as a customer service representative at X College on August 3, 2021. The Claimant also provides a record of an invitation to apply for a work-study program at X University to start in the fall, which she says she will be applying to.

[56] The Claimant explains in her post-hearing submissions that she has a learning disability which causes difficulties when reading job descriptions and writing cover letters resulting in taking more time than the average person.

[57] I accept that the Claimant was reviewing online sites and working on her resume. However, an active job search also requires job applications. I also accept it may take the Claimant longer to read job descriptions and apply for jobs than the average person and that the pandemic has reduced the number of jobs available to apply to. However, even taking those factors into account, the Claimant went two and a half months between her first application and dropping off resumes at farms. This lapse of time is significant. Further, after that, she only made two job applications. This does not in my view, show an intent to return to the workforce as soon as a suitable job is available. Notably, the Claimant did not apply to any jobs of the type for which she has most recent experience, being waitressing or cleaning. While she was self-employed in cleaning, that is not the same thing as trying to find a job.

[58] I think if the Claimant’s desire was to return to the workforce as soon as a suitable job was available, she would have applied for more jobs and in particular she would have applied for at least some jobs of the server type jobs in which she had her most recent experience. Her conduct does not show that her desire was to return to the workforce as soon as a suitable job was available. It shows a desire to return to the workforce, but not as soon as suitable job was available.

Making efforts to find a suitable job

[59] The Claimant hasn’t made enough effort to find a suitable job.

[60] I have considered the list of job-search activities given above in deciding this second factor. For this factor, that list is for guidance only.^{Footnote 18}

[61] The Claimant’s job search efforts since April 5, 2021 include resume building, applying online for 4 jobs, dropping off some resumes at farms, and searching online job sites. I find the Claimant’s job search efforts weren’t enough to meet the requirements of this second factor.

[62] As above, the Claimant’s efforts reflect rather a passive effort to return to the labour market. They do not show an active job search. There is more the Claimant could have done to find a suitable job. She could have registered with an employment agency. She could have emailed resumes out to prospective employers. She could have applied for more jobs. In particular, she could have expanded her job search to include suitable server jobs within her restrictions of working up to 30 hours per week.

Unduly limiting chances of going back to work

[63] The Claimant has not set personal conditions that might have unduly limited her chances of going back to work.

[64] The Claimant says she is medically restricted from working more than 30 hours per week. She says otherwise, her only restriction was she did not want to work a night shift. She says she was willing to accept physical work of up to 30 hours per week and sedentary full-time work.

[65] The Commission says the Claimant told the she was only available for part-time work because of her schooling, and would not accept full-time work if it were offered. The Commission says this unduly limit her chances of going back to work.

[66] I agree with the Claimant that her medical restriction of being unable to work more than 30 hours per week at a physical job is not a personal condition.

[67] I find the Claimant’s attendance at school was not unduly limiting her chances of returning to the labour market. As above, the Claimant only had two courses. She had no attendance requirements and the lectures were online and recorded and so could be viewed at any time. Further, the Claimant said she could have dropped down to one course if offered a full-time job. The Claimant had previously been able to combine her schooling with work of up to 30 hours a week.

[68] I am satisfied the Claimant would have accepted full-time work, if offered, given three of the jobs she applied for were full-time jobs. So, I don’t think she set a personal condition of only being willing to accept part-time employment. However, as above, the difficulty is that the Claimant did not show a desire to return the labour force as soon as suitable job was available or express that desire through sufficient efforts to find a suitable job. A willingness to accept full-time employment is not enough. Claimants have to be actively seeking work.

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

[69] Based on my findings on the three factors, I find that the Claimant hasn’t shown that she was capable of and available for work but unable to find a suitable job.

Conclusion

[70] The Claimant hasn’t shown that she was available for work within the meaning of the law. Because of this, I find that the Claimant is disentitled from regular benefits from April 5, 2021.

[71] This means that the appeal is dismissed.