Employment Insurance (EI)

Decision

[1] The appeal is allowed. I find that the Appellant has proven his availability for work for the period from October 19, 2020, to June 18, 2021, inclusive, during which he was taking training.^{Footnote 1} This means that he is entitled to receive Employment Insurance (EI) regular benefits for the period in question. Because of this, the Appellant should not have to pay back the amount of money the Canada Employment Insurance Commission (Commission) is asking him to repay.^{Footnote 2}

Overview

[2] On September 9, 2019, the Appellant began full-time training at the Collège communautaire du Nouveau-Brunswick [New Brunswick community college] in X. The training leads to a diploma in business administration – community and cultural management. The training lasted two years.^{Footnote 3} In 2020 and 2021, he completed his fall 2020, winter 2021, and spring 2021 terms from September 8, 2020, to June 18, 2021.^{Footnote 4} He obtained his diploma on June 21, 2021.^{Footnote 5}

[3] From October 2019 to March 2021, the Appellant had periods of employment with the following employers: X and X.^{Footnote 6}

[4] On October 20, 2020, after a period of employment with X from October 25, 2019, to August 30, 2020, inclusive,^{Footnote 7} he applied for EI benefits (regular benefits).^{Footnote 8}

[5] On July 8, 2021, the Commission told him that it was not able to pay him EI benefits from October 19, 2020, to June 18, 2021, because he had told it that, during his training, he was willing to accept only part-time work of up to 20 hours per week, which lowered his chances of getting a job. The Commission explained to him that, because of this, he had not shown that he was available for work.^{Footnote 9}

[6] On August 30, 2021, during one of his conversations with the Commission, the Appellant was told that he would have to pay back the amount he had been overpaid in benefits (overpayment).^{Footnote 10} Initially, on July 8, 2021, the Commission had told him that he would not have to do this, since he had reported his training.^{Footnote 11}

[7] On November 19, 2021, after a request for reconsideration, the Commission told the Appellant that it was upholding the July 8, 2021, decision about his availability for work.^{Footnote 12}

[8] The Appellant says that he was available for work during the relevant period. He explains that he was available to work more than 20 hours per week but that his work and study permits did not let him do this during his training. The Appellant points out that he worked more than 20 hours per week outside his academic terms or during holiday periods. He argues that, in finding that he was not available for work, the Commission did not consider his situation as a student or the conditions he had to meet concerning the hours of work he could perform. The Appellant also argues that he always worked during his training and that, when he anticipated becoming unemployed, he looked for a job. He indicates that the fact he changed jobs in December 2020 shows that he first had to look for a job. The Appellant also points out that the Commission did not ask him for proof of his job search. He explains that he contacted the Commission after it had sent him a notice of debt about the benefits it had paid him. The Commission then told him that the matter had been resolved. However, a few weeks later, the Commission told him that the decision it had previously made did not apply anymore. On December 3, 2021, the Appellant challenged the Commission’s reconsideration decision. That decision is now being appealed to the Tribunal.

Issues

[9] I have to decide whether the Appellant has proven that he was available for work during the period from October 19, 2020, to June 18, 2021, while taking training.^{Footnote 13}

[10] To decide this, I have to answer the following questions:

• Has the Appellant rebutted the presumption that he was not available for work based on the principles related to returning-to-studies cases, such as the attendance requirements of the course, the claimant’s willingness to give up their studies to accept employment, whether the claimant has a history of being employed at irregular hours, and the existence of “exceptional circumstances”?
• Did the Appellant show a desire to go back to work as soon as a suitable job was available?
• Did the Appellant express that desire through efforts to find a suitable job?
• Did the Appellant set personal conditions that might have unduly limited his chances of going back to work?

[11] I also have to decide whether the Appellant should pay back the benefits that he received and that the Commission is asking him to repay.^{Footnote 14}

Analysis

Availability for work

[12] The Federal Court of Appeal (Court) has held that a person who is in school full‑time is presumed to be unavailable for work.^{Footnote 15} This is called “presumption of non‑availability.” It means we can suppose that this person is not available for work when the evidence shows that they are taking training full‑time.

[13] But this presumption can be rebutted if certain conditions are met. The Court tells us that principles related to returning-to-studies cases can help rebut the presumption of non-availability.^{Footnote 16} These principles include:

• the attendance requirements of the course
• the claimant’s willingness to give up their studies to accept employment
• whether the claimant has a history of being employed at irregular hours
• the existence of “exceptional circumstances” that would enable the claimant to work while taking their course^{Footnote 17}

[14] Although this presumption of non-availability can be rebutted, the person who is taking training still has to show that they are actually available for work.

[15] Two sections of the Employment Insurance Act (Act) indicate that claimants have to show that they are available for work.^{Footnote 18} Both sections deal with availability, but they involve two different disentitlements.

[16] First, a claimant is not entitled to receive benefits for a working day in a benefit period for which the claimant fails to prove that, on that day, the claimant was capable of and available for work and unable to find a suitable job.^{Footnote 19}

[17] Second, to prove availability for work, the Commission may require the claimant to prove that they are making reasonable and customary efforts to find a suitable job.^{Footnote 20}

[18] To decide whether a claimant is available for work, I have to consider the specific criteria set out in the Act for determining whether their efforts to find a suitable job are reasonable and customary.^{Footnote 21} According to these criteria, the efforts must be 1) sustained, 2) directed toward finding a suitable job, and 3) compatible with nine specific activities that can be used to help claimants get a suitable job.^{Footnote 22} These activities include assessing employment opportunities, registering for job search tools or with online job banks or employment agencies, contacting prospective employers, and submitting job applications.^{Footnote 23}

[19] The criteria for determining what constitutes a suitable job are 1) the claimant’s health and physical capabilities allow them to commute to the place of work and to perform the work, 2) the hours of work are not incompatible with the claimant’s family obligations or religious beliefs, and 3) the nature of the work is not contrary to the claimant’s moral convictions or religious beliefs.^{Footnote 24}

[20] The notion of “availability” is not defined in the Act. Court decisions have set out criteria for determining a person’s availability for work and whether they are entitled to EI benefits.^{Footnote 25} These three criteria are:

• wanting to go back to work as soon as a suitable job is available
• expressing that desire through efforts to find a suitable job
• not setting personal conditions that might unduly limit the chances of going back to work^{Footnote 26}

[21] Whether a person who is taking a full-time course is available for work is a question of fact that must be determined in light of the specific circumstances of each case but based on the criteria set out by the Court. The claimant’s attitude and conduct must be considered.^{Footnote 27}

[22] In this case, the Appellant has met the above criteria to prove that he was available for work during the period from October 19, 2020, to June 18, 2021. In addition to rebutting the presumption of non-availability, he has shown that his efforts to find a job during that period were reasonable and customary.

Issue 1: Has the Appellant rebutted the presumption that he was not available for work based on the principles related to returning-to-studies cases, such as the attendance requirements of the course, the claimant’s willingness to give up their studies to accept employment, whether the claimant has a history of being employed at irregular hours, and the existence of “exceptional circumstances”?

[23] Among the principles related to returning-to-studies cases that can help a claimant rebut the presumption that they are unavailable for work while taking training full-time, I note that the Appellant has a history of being employed at irregular hours while in school full-time.

[24] The Appellant says that, from the start of the fall 2020 term, he was in full-time training from September 8, 2020, to June 18, 2021 (fall 2020, winter 2021, and spring 2021 academic terms).^{Footnote 28}

[25] The Appellant explains that, after he arrived in Canada, on September 7, 2019, he looked for a job and started working in October 2019, while taking training. He says that he had several periods of employment with the employers [sic] X and for X while in school full-time.^{Footnote 29}

[26] The Appellant explains that he worked 20 hours per week while taking training and worked more hours outside his academic terms or during holiday periods.

[27] He explains that, after he arrived in Canada, the work and study permits he was issued did not let him work more than 20 hours per week during his academic terms.^{Footnote 30} He says that he could, however, work more hours outside his training periods or during holiday periods.

[28] The Appellant explains that the instructions related to the number of hours he could work were not on his permits. He says that these instructions were established by the Government of Canada and are on its website. The Appellant specifies that the Comité d’accueil, d’intégration et d’établissement des nouveaux arrivants [newcomer welcome, integration, and settlement committee] gave him these instructions verbally after he arrived in Canada.

[29] The Appellant explains that he followed these instructions but that, if he had not had to follow them, he would have been able to work 35 to 40 hours per week while also taking training (for example, night shifts like those previously worked at X).

[30] I find persuasive the Appellant’s testimony that he could work while taking training full‑time. His testimony is also supported by compelling evidence that he was able to do this.^{Footnote 31}

[31] The Appellant does not dispute that he was in school full-time during the relevant period.

[32] I find that the Appellant has a work-study history showing that he is able to balance part-time work with full-time studies.

[33] A decision by the Tribunal’s Appeal Division (Appeal Division) indicates that the law does not require that a claimant have a history of full-time employment while attending school to rebut the presumption that, as a full-time student, they are unavailable for work under the Act.^{Footnote 32}

[34] That decision was about a claimant (student) with a history of full-time studies and part-time employment indicating that she was working approximately 14 to 18 hours per week and looking for a part-time job of 16 to 20 hours weekly.^{Footnote 33}

[35] In that decision, the Appeal Division found that the nature of the claimant’s previous employment—part-time employment—and the fact she had shown her ability to maintain part-time employment over the long term, while simultaneously attending full-time studies, were an exceptional circumstance sufficient to rebut the presumption of the claimant’s non-availability.^{Footnote 34}

[36] Another Appeal Division decision indicates that a claimant (student) was able to rebut the presumption that he was not available for work by showing his history of part‑time employment and full-time studies.^{Footnote 35}

[37] In that decision, the Appeal Division found that the student had given persuasive testimony showing his consistent efforts to pick up as many shifts as possible during the school breaks, in addition to being able to work close to full-time hours.^{Footnote 36}

[38] Although I am not bound by the Tribunal’s decisions, I consider its findings persuasive in showing that a person can rebut the presumption that they are not available for work while taking training full-time, if the person can show that they have experience simultaneously studying full-time and working part-time (work-study history). As a result, I adopt the same approach in this case.

[39] So, I do not accept the Commission’s argument that the Appellant has not rebutted the presumption of non-availability while taking a full-time course, given his dedication and the time spent on his studies, and because of his work permit [work and study permits].^{Footnote 37}

[40] I find that the Appellant has rebutted the presumption that a person enrolled in a full-time course is unavailable for work. Even though the Appellant had to or might have had to meet specific conditions concerning the number of hours he could work because of his work and study permits, he has a work-study history showing that he was able to balance part-time work with his full-time studies. In my view, this is an exceptional circumstance sufficient to allow the Appellant to rebut the presumption that he was unavailable.

[41] Although the Appellant has rebutted the presumption that he was unavailable for work, I now have to decide whether he was actually available for work under the Act.

Issue 2: Did the Appellant show a desire to go back to work as soon as a suitable job was available?

[42] I find that the Appellant showed his desire to go back to work as soon as a suitable job was available during the period from October 19, 2020, to June 18, 2021. I find that, even though the Appellant was in training during that period, his intention was also to work.

[43] The Appellant explains that, since arriving in Canada, and since starting his training, in September 2019, he has always been available for work and [translation] “willing” to work.

[44] The Appellant argues that the rules he had to follow related to the number of hours he could work did not stop him from working and from doing so full-time outside his academic terms or during holiday periods.

[45] I have no reason to doubt that the Appellant wanted to work during the period from October 19, 2020, to June 18, 2021—the period for which the Commission disentitled him from receiving benefits.

[46] I find that, even though the Appellant chose to take training full-time, this situation did not affect his desire to work as soon as a suitable job was available during the relevant period.

Issue 3: Did the Appellant express that desire through efforts to find a suitable job?

[47] I find that the Appellant expressed his desire to work through efforts to find a suitable job during the period from October 19, 2020, to June 18, 2021.

[48] The Appellant explains that he always worked during his training and that he looked for a job when he anticipated becoming unemployed.

[49] The Appellant says that he did not always actively look for a job during the relevant period (from October 19, 2020, to June 18, 2021), since he already had a job, either at X or at X. He explains that he did not look for a job to do something other than what he was already doing for those employers.

[50] The Appellant explains that, after a period of employment with X from October 25, 2019, to August 30, 2020, he started working there again the second week of September 2020.^{Footnote 38}

[51] The Appellant explains that he left that job at the very beginning of January 2021 (January 3, 2021) after X had hired him on December 20, 2020. He says that he worked there until March 2021, as shown by the letter from that employer.^{Footnote 39} He points out that, following an internship with that employer in May and June 2021, it offered him a job starting July 2021.^{Footnote 40}

[52] The Appellant explains that, although one of his statements to the Commission indicates that he [translation] “had not looked for a job since his benefits had started,”^{Footnote 41} there is no way that he said he was not looking for a job. He questions how he could have said that he was not looking for a job when he changed jobs in December 2020.

[53] The Appellant says that he did not use those words during his conversation with a Commission agent. He thinks that the agent who transcribed the conversation is the one who used them.^{Footnote 42} He explains that he may have said that he was going to school and that he already had a job and was not looking for another one.

[54] The Appellant says that, during the period for which the Commission found that he was not available for work (from October 19, 2020, to June 18, 2021), he made the following job search efforts:

1. a) searching job sites like Indeed, registering with the Adecco (personnel recruitment or employment agency) website, and searching with the help of Facebook
2. b) December 2, 2020: job application sent to the employer X and job interview with that employer^{Footnote 43}
3. c) March 2021: meeting with the employer X, a telecommunications service provider, and résumé provided
4. d) Late March 2021 or April 2021: discussions with the mayor of X for a job in his law firm or with the City of X
5. e) May 31, 2021: job application sent to the employer X^{Footnote 44}

[55] The Appellant argues that the Commission never required proof of his job search.^{Footnote 45} He also argues that the Commission did not provide the Tribunal with evidence of his job search efforts or evidence that he was not available for work. The Appellant points out that the Commission provided only the transcripts of what he had told it over the phone. He says that the purpose of the Commission’s questions was to find out how much time he was spending in the classroom, not whether he was looking for a job.

[56] In this case, I find that the Appellant made “reasonable and customary efforts” in the “search for suitable employment”—that is, sustained efforts directed toward finding a suitable job and compatible with nine specific activities that can be used to help claimants get a suitable job.^{Footnote 46}

[57] In assessing the Appellant’s availability for work and her [sic] efforts to find a suitable job, I am taking into account the fact that, over much of the period he was in school full-time, the Appellant worked part-time for about two years. I find that it was his usual employment based on the conditions he might have had to meet according to his work and study permits.

[58] I find credible the Appellant’s testimony that he has been working since October 2019 and that he started working soon after arriving in Canada. His statement is also supported by compelling evidence that he had several periods of employment while in school full-time.^{Footnote 47}

[59] Although section 9.002(1) of the Employment Insurance Regulations (Regulations) describes the criteria for determining what constitutes suitable employment,^{Footnote 48} it does not otherwise or more clearly define the expression “suitable employment.”

[60] I point out that, in addition to those criteria,^{Footnote 49} the Act also sets out characteristics describing what constitutes employment that is “not suitable.”^{Footnote 50} I find that the criteria set out in the Regulations^{Footnote 51} and these characteristics^{Footnote 52} have to be considered together to be able to determine what constitutes suitable employment based on a claimant’s circumstances.

[61] These characteristics indicate, for example, that employment is not suitable employment if it is not in the claimant’s usual occupation.^{Footnote 53} Section 6(4)(c) of the Act also says that this employment in a different occupation, or that is not suitable, includes conditions less favourable or lower earnings than those that a claimant could reasonably expect to obtain, taking into account the conditions and earnings the claimant would have had if they had remained in their previous employment. Section 6(5) of the Act broadens the types of jobs that can be suitable, since the provisions of section 6(4)(c) of the Act no longer apply after a reasonable period.

[62] Based on the characteristics set out in the Act to describe what constitutes employment that is not suitable,^{Footnote 54} I am of the view that suitable employment includes employment that is in the claimant’s usual occupation (for example, same nature, earnings, and working conditions).^{Footnote 55}

[63] With this in mind, I find that the fact that the Appellant worked part-time for about two years while studying full-time amounts to employment in his usual occupation, since it was his usual employment.

[64] The Court also tells us that the notion of suitable employment is defined in part with reference to the personal circumstances of the claimant.^{Footnote 56}

[65] So, in assessing the Appellant’s availability for work, I am taking into account the specific characteristics of his case, namely that he worked part-time while studying full‑time.

[66] I also find, based on the Appellant’s statements, that his personal circumstances were affected by the conditions of his work and study permits to the effect that he could not work more than 20 hours per week while in training but that he could do so when he had no courses or during holiday periods.

[67] In its decision, the Commission told the Appellant that he had not shown his availability for work because he had told it that, during his training, he was only willing to accept part-time work of up to 20 hours per week, which lowered his chances of getting a job.^{Footnote 57}

[68] In its arguments, the Commission also indicates that the Appellant said that he was not willing to give up his studies to accept a full-time job and that his priority was to finish his training.^{Footnote 58}

[69] I do not accept the Commission’s argument that the Appellant was not available for work because, according to the Commission, he was not ready or willing to work full‑time.

[70] To begin with, I note that the Act does not specifically require a claimant to be available for full‑time work. In addition, during his training, the Appellant’s usual employment was part-time employment.

[71] I also accept the Appellant’s explanation that he would have worked more hours during his training if it had not been for the conditions he had to meet concerning the hours of work he could perform, given his work and study permits. The Appellant also indicates that he was able to work more than 20 hours per week when he had no courses or during holiday periods.

[72] I also do not accept the Commission’s argument that, by his own admission, the Appellant has failed to prove that he was making reasonable and customary efforts to find a job.^{Footnote 59}

[73] I find that the Appellant has rebutted the Commission’s arguments on this point. This is evidenced by the Appellant’s work experience—including his job change in December 2020—and his other efforts to find work.

[74] I also find that the Commission did not require the Appellant to prove that he had made reasonable and customary efforts to find a suitable job, as section 50(8) of the Act indicates. In my view, the Commission’s decision is based first and foremost on section 18(1)(a) of the Act.

[75] I find that, during the period from October 19, 2020, to June 18, 2021, the Appellant fulfilled his responsibility of actively looking for a suitable job to be able to receive EI benefits.

Issue 4: Did the Appellant set personal conditions that might have unduly limited his chances of going back to work?

[76] I find that the Appellant did not set “personal conditions” that unduly limited his chances of going back to work during the period from October 19, 2020, to June 18, 2021. I find that the Appellant’s decision to take training full-time did not hurt his desire and efforts to keep working.

[77] The Appellant’s testimony and the evidence on file show that, during his full-time academic terms, which ran from October 19, 2020, to June 18, 2021, he devoted up to 60 hours per week to his training, including time spent in the classroom (six hours of classes per day), assignments, studying, and the internship in May and June 2021.^{Footnote 60}

[78] After initially saying that Immigration, Refugees and Citizenship Canada had approved his training under an employment or skills development program,^{Footnote 61} the Appellant said, in one of his statements to the Commission, that the training had not been “referred.”^{Footnote 62}

[79] The Appellant says that he would not have been willing to give up his training if offered another job, for example, a full-time job of 35 to 40 hours per week, because he wanted to finish his training.^{Footnote 63} He also says that, if his training had conflicted with his work schedule, he could not have given it up and would not have wanted to.^{Footnote 64}

[80] The Appellant explains that he met the requirements associated with his work and study permits and, in doing so, followed the Government of Canada’s rules about the number of hours he was allowed to work during his training.

[81] The Appellant says that he is taking steps to get permanent resident status. He explains that, had he exceeded the limit of 20 hours of work per week during his training, this could hurt him when his case is under review, and prevent him from getting this status.

[82] The Appellant also argues that, according to the Digest of Benefit Entitlement Principles, the Commission has to consider the circumstances of each claimant to determine whether they are entitled to benefits.^{Footnote 65} The Appellant thinks that the Commission’s agents had to have known about the restrictions on the number of hours he could work during his courses.

[83] I find that, by choosing to take training full-time, the Appellant set personal conditions. But, in my view, they were not conditions that unduly limited his chances of working and getting a suitable job.

[84] Objectively, despite taking training full-time, the Appellant made sustained efforts to keep working.

[85] I find that the Appellant did not limit his employment prospects after starting his training either. I find that the conditions of his work and study permits did not prevent him from looking for and accepting a suitable job.

[86] I do not accept the Commission’s argument that a claimant has to show, through their actions, that their training is of secondary importance and is not a barrier to looking for and accepting a suitable job.^{Footnote 66}

[87] The fact is that, for much of his training, the Appellant worked part-time, and it was suitable employment in his case.

[88] In my view, the Appellant did not unduly limit his chances of going back or continuing to work despite the demands of his training.

[89] I find that, during the relevant period, the Appellant did not set personal conditions that unduly limited his chances of going back to work.

Liability to repay benefits paid

[90] Since I have found that the Appellant has proven his availability for work during his training, he should not have to pay back the benefits the Commission is asking him to repay. It is up to the Commission to resolve this matter with the Appellant in accordance with the provisions of the Act.^{Footnote 67}

Conclusion

[91] I find that the Appellant has shown that he was available for work within the meaning of the Act during the period from October 19, 2020, to June 18, 2021. The Appellant can receive EI benefits for that period. He should not have to pay back the benefits the Commission is asking him to repay for that period.

[92] This means that the appeal is allowed.