Employment Insurance (EI)

Decision

[1] The appeal is dismissed.

[2] C. C. (Claimant) hasn’t shown that he was available for work while in school. This means that he can’t receive Employment Insurance (EI) benefits from October 5, 2020 to April 9, 2021.

Overview

[3] The Canada Employment Insurance Commission (Commission) decided that the Claimant was disentitled from receiving EI regular benefits from October 5, 2020 to April 9, 2021 because he wasn’t 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 he was available for work. The Claimant has to prove this on a balance of probabilities. This means that he has to show that it is more likely than not that he was available for work.

[5] The Commission says that the Claimant wasn’t available because he was in school full-time. 

[6] The Claimant disagrees. He was attending his last year of a university program. He says that he was only in school full time until February 10, 2021 at which point he dropped down to a part-time student, only taking two courses. The Claimant said his schooling throughout the year was online and flexible so it did not interfere with his ability to take a job. The Claimant says he was available for work. He says he had been actively looking for work since he had been laid off from his prior part-time job on March 31, 2020. He says he secured a job in late December, 2020 so he stopped looking for work then. However, the start of that job was deferred to March 8, 2021, due to the pandemic. The Claimant worked at that job between 21 and 28 hours per week. He says if the employer had asked him to work full-time he would have. The Claimant says he also applied to be a firefighter for the period in question but was not successful. The Claimant then began referred electrician apprentice training on April 11, 2021.

[7] The Claimant appeals the Commission’s decision to the Tribunal.

Issue

[8] Was the Claimant available for work while in school from October 5, 2020 to April 9, 2021?

Analysis

[9] Two different sections of the law require claimants to show that they are available for work. The Commission says in its submissions that the Claimant was disentitled under both of these sections.

[10] 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 1} The Employment Insurance Regulations (EI Regulations) give criteria that help explain what “reasonable and customary efforts” mean.^{Footnote 2}

[11] 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 3} 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 4}

[12] The Commission asked the Claimant twice about his job search activities. The Claimant told the Commission he had applied to one part-time job in September 2021. ^{Footnote 5} While it may seem unnecessary for the Commission to ask for proof of reasonable and customary efforts when a claimant says they have not looked for a job or only applied to one job, for the Commission to disentitle under this section, such a request must be made. This is because the disentitlement is for failure to provide proof that a claimant is making is reasonable and customary efforts to obtain suitable employment.^{Footnote 6} I see no evidence on file the Claimant was specifically asked by the Commission for proof or told what kind of proof would satisfy its requirements. While the Commission may be able to rely on other grounds for disentitlement concerning the adequacy of the Claimant’s job search, I find the Commission cannot disentitle the Claimant for not providing proof of reasonable and customary efforts to find a job.

[13] 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.

[14] In addition, the Federal Court of Appeal has said that claimants who are in school/taking training full-time are presumed to be unavailable for work.^{Footnote 9} 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/taking training full‑time.

[15] I will start by looking at whether I can presume that the Claimant wasn’t available for work.

Presuming full-time students aren’t available for work

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

The Claimant doesn’t dispute that he is a full-time student until February 10, 2021 but says he was only a part-time student after February 10, 2021.

[17] The Claimant was completing his degree at Lakehead University. He was taking six courses in his first semester from September to December, 2020 and agrees he was a full-time student then. He started his second semester as a full-time student in January, 2021 with six courses, but then dropped down to two courses on February 10, 2021. So, he says he was a part-time student from that point. He explained that the university considers three or more courses to be full-time.

[18] The Claimant says the Commission incorrectly understood that he was taking a Master’s program. He testified that he never was in a Master’s program. He only needed two courses to finish his degree but he needed to take four other courses if he planned to enter the Master’s program after his degree. So, the Claimant says he initially registered for six courses for the second term. However, he then changed his mind about taking the Master’s Program and dropped the four courses on February 10, 2021 so he was only left with the two courses he needed to finish his degree.

[19] The Commission says that the Claimant submitted a questionnaire dated September 09, 2020 stating his full time involvement in non-referred courses from September 08, 2020 to April 05, 2021. The Commission says the Claimant submitted two other questionnaires for his other courses in December 2020 and January 2021 as well indicating his full time involvement in courses till April 20, 2021. The Commission says the Claimant told the Commission that he finished some of his courses in December, 2020 but then enrolled in 6 courses for Master’s degree in January, 2021.

[20] I find that the Claimant was in school full-time until February 10, 2021 and only in school part-time from February 11, 2021. I accept the Claimant’s testimony in that regard. The questionnaires the Commission refers to were completed by the Claimant prior to his dropping his four courses on February 10, 2021. I also note the Claimant explained to the Commission on May 18, 2021 that he was studying full-time up until Feb 18, 2021 and (then went down to 2 classes).^{Footnote 10} So, I am satisfied that the Claimant did drop four courses. I accept his testimony as to the date he dropped the courses.

[21] So, the presumption applies to the Claimant from October 5, 2020 to February 10, 2021 but not from February 11, 2021 to April 9, 2021. Even though the presumption does not apply to this second period, the Claimant still has to prove he was available for work for this period. I will address that below. However, first I will address whether the Claimant has rebutted the presumption that he is not available for work from October 5, 2020 to February 10, 2021.

The Claimant is a full-time student from October 5, 2020 to February 10, 2021

[22] The presumption that full-time students aren’t available for work can be rebutted (that is, shown to not apply). If the presumption were rebutted, it would not apply.

[23] There are two ways the Claimant can rebut the presumption. He can show that he has a history of working full-time while also in school.^{Footnote 11} Or, he can show that there are exceptional circumstances in his case.^{Footnote 12}

History of full-time work with full-time school

[24] The Claimant has not rebutted the presumption by showing a history of working full-time while in school.

[25] The Commission says the Claimant has not rebutted the presumption by showing a history of combining full-time work and full-time school. The Commission says the Claimant’s work history shows he has only ever combined part-time work with full time schooling.

[26] The Claimant testified that he has held part-time jobs with full-time schooling but has sometimes worked full-time hours in those jobs. The Claimant testified that in his first year of university, he was working 15 to 20 hours while also playing hockey 6 to 7 days a week and had no problem doing that. In his second year of university, he worked 20 to 25 hours per week, and once or twice a month worked up to 40 hours a week. In his third year at university, the Claimant was working at Parks Canada from September 2019 until he was laid off in March, 2020. He was working 23 to 23.5 hours per week as human resources assistant along with his full-time schooling.  The Claimant notes in a training questionnaire that his job went from September 3, 2019 to March 31, 2020 and he worked 24 hours per week. ^{Footnote 13}

[27] I find that the Claimant does not have a sufficient history of combining full-time schooling with full-time work to rebut the presumption in this manner.  While he was playing hockey and working and attending school for his first year of school, I cannot equate playing hockey along with part-time work to be equivalent to the demands of a full-time job. The Claimant did work on some occasions work for 40 hours per week while attending his second year of university. This would be considered full-time hours but the Claimant did not do this for a long enough period of time to rebut the presumption. The Federal Court of Appeal has said that the history must be “over the years.”^{Footnote 14} So, working full-time hours on an occasional basis with full-time schooling is not sufficient to rebut the presumption.

Exceptional circumstances

[28] The Claimant has shown exceptional circumstances to rebut the presumption he was unavailable for work from October 5, 2020 to February 10, 2021.

[29] The Commission says the Claimant has not rebutted the presumption because to do so, the Claimant must demonstrate that his main intention is to immediately accept suitable employment as evidenced by job search efforts, that he is prepared to make whatever arrangements may be required, or that he is prepared to abandon the course. The Commission says that the Claimant must demonstrate by his actions that the course is of secondary importance and does not constitute an obstacle to seeking and accepting suitable employment.

[30] The Commission says the Claimant told the Commission that he could not work full-time, only part-time and that he was only willing to accept a job if the start date was delayed till he finishes the course. ^{Footnote 15} The Commission says the Claimant restricted his course availability around his course schedule. The Commission also says the Claimant only applied for one job since October 05, 2020 and did not demonstrate any job search efforts from October 5, 2020 to the start of his part-time job on March 08, 2021. He then accepted a referred training in early April, 2021. The Commission argues that the Claimant has not made himself unconditionally available for work.

[31] The Claimant says that his circumstances were exceptional. He testified that his first semester he was taking six classes. Three of the classes had scheduled lectures. They were held on Monday and Wednesday from 10 a.m. to 11:30 a.m., Tuesday and Thursdays from 11:30 to 1:00 p.m. and Thursday evening from 7 p.m. to 10 p.m. The Claimant said his lectures were online and recorded. The Claimant said that he was supposed to attend the lectures at the scheduled times, but if he spoke with his professors, he could have missed the classes and watched them at any time. The Claimant said he spent about 13 hours in total on these courses. The Claimant explained that his other three classes were online and were done at his own pace. He said the work varied but he spent about 3 to 5 hours a week on each of these courses. The Claimant said exams were set in advance and could not be moved but they were in December. He said for that term he only had one online exam.

[32] The Claimant explained that he had six courses in his second term until February 10, 2021, at which point he dropped to two courses. For the six courses, two of those were fully online. For the scheduled classes, he attended class on Monday from 4 p.m. to 5:30 p.m., Tuesday from 7 p.m. to 10 p.m., Wednesday from 4 p.m. to 5:30 and then from 7 p.m. to 10 p.m. The Claimant explained all lectures were recorded and online and he could have spoken to his professors so he could watch the recorded lectures. The other two online courses he could do at his own pace.  The Claimant says he only spent about 10 to 11 hours on his schooling until February 10, 2021. Once he dropped to the two courses on February 10, 2021, he kept the course that was on Monday and Wednesday from 4 p.m. to 5:30 p.m. and the course on Tuesdays from 7 p.m. to 10 p.m. By this point he says he was only spending 8 hours in total on school. The Claimant says he would not have dropped his schooling to take a job as that was not necessary. He would have worked full-time, given his flexible school schedule.

[33] The Claimant says that he does not recall telling the Commission that he could not work full time. ^{Footnote 16} He says if he did say it, he may have said it out of anger when being told the amount he had to pay back and he may have meant prior to the pandemic, before he had flexible online schooling. He also says the Commission’s training questionnaire does not give an opportunity to fully explain the situation about being able to work full-time with online schooling.

[34] The Claimant does have a history of part-time work combined with schooling. However, the Claimant’s pattern of part-time work along with schooling is no different than many other students so that alone does not make his case exceptional.  However, I have considered the fact that the Claimant’s schooling was online and recorded, giving him the flexibility to accept work without restricting his availability to specific hours or days. I find that these are exceptional circumstances.   

[35] The Claimant has rebutted the presumption that he is unavailable for work for the period from October 5, 2020 to February 10, 2021. 

The presumption is rebutted

[36] Rebutting the presumption means only that the Claimant isn’t presumed to be unavailable. I still have to decide whether the Claimant is actually available. I have to decide this for the entire period from October 5, 2020 to April 9, 2021.

Capable of and available for work

[37] I have to consider whether the Claimant was capable of and available for work but unable to find a suitable job October 5, 2020 to April 9, 2021.^{Footnote 17} Case law sets out three factors for me to consider when deciding this. The Claimant has to prove the following three things:^{Footnote 18}

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

[38] When I consider each of these factors, I have to look at the Claimant’s attitude and conduct.^{Footnote 19}

Wanting to go back to work

[39] The Claimant hasn’t shown that he wanted to go back to work as soon as a suitable job was available.

[40] The Commission says the Claimant hasn’t shown this. The Commission says the Claimant declared that as student he cannot work full-time and he only applied for one job since October 05, 2020 and the start of his part-time job on March 08, 2021

[41] The Commission says the Claimant applied for one part-time job in October 2020 and had an interview in November 2020 but the start of the job was delayed till March 08, 2021. The Commission says there is no evidence of any job-search activities other than the one part-time job application, from October 2020 till April 2021. The Commission says that even though the Claimant dropped from 6 to 2 courses in February 2021, he still did not demonstrate any job search activities other than waiting to start his part-time job in March, 2021. He then accepted referred training in early April 2021.

[42] The Claimant says he did want to go back to work as soon as suitable job was available. He testified that he had been job searching since he had been laid off from his prior part-time job in March, 2020. The Claimant said he spent an hour or two a week looking for work. He was looking for jobs on Indeed and Facebook and Hazit, and talking to family friends but he says no one was hiring. The Claimant explained he was looking for any kind of part-time, full-time or summer jobs in the Human Resources area as that is what his background was. He also was looking for sales representative or customer service jobs or anything to do with business as well as labour jobs.

[43] The Clamant says he would have been available to work any time due to the flexibility of his school schedule.  The Claimant said he made an application with one employer on October 5, 2020 for a customer service job. He had an interview on November 11, 2020, a second interview on November 30, 2020 and then he did a test. He was then offered the job with this employer. He was hired in late December 2020 and the job was to start in January, 2021 but due to the pandemic, the start was delayed until March 8, 2021. The Claimant explained he worked until April 8, 2021 with this employer, doing orientation. He was to have 10 weeks of training. The Claimant said he believed this job was available with both part-time and full-time hours but he worked part-time hours as those were the hours his trainer worked.  He worked every weekend and some weekdays for 21 to 28 hours per week. The Claimant said he could have worked as much as he wanted as he provided his availability to the employer. The Claimant explained that he was only working part-time as he was in school but if this employer had asked him to work full-time he would have. He says he did not ask for full-time work because he was fine with working part-time and just having a job and it worked with his schedule.

[44] I asked the Claimant about jobs he had applied to in the period from October 5, 2020 to April 9, 2021. He said he ran into his old boss on the street in December 2020 and asked if any work was available, which it wasn’t. He also applied for a full-time firefighting job in December 2020 or January, 2021 but was not successful. He says if he had gotten that job he would have dropped out of school and pursued that as a career. The Claimant said in April, 2021 he applied for a summer position to work at a Hydro company.  The Claimant said that due to the pandemic, jobs to apply to were scarce. 

[45] The Claimant said he did not look for any further work after obtaining the job in December, 2020. He said he did not want to burn the bridge with that employer after accepting the job. The Claimant said, however, he left this employer after 5 weeks of training as he was accepted into the union hall for referred apprenticeship training.

[46] I find that the Claimant has not shown an intent to return to the labour force as soon as a suitable job was available from October 5, 2020 to April 9, 2021. While I accept that the Claimant had the flexibility to work full-time, I am not satisfied that his conduct shows his intent was to return to the labour force as soon as a suitable job was available. During this period, the Claimant only made two job applications. I recognize that the pandemic has reduced potential opportunities. However, the Claimant’s job search was very passive. I think if the Claimant’s intent was to return to the labour market as soon as a suitable job was available, he would have engaged in a more sustained job search. Claimants still have to show that they tried to find work even if it seems reasonable to them not to do so. ^{Footnote 20}

[47] Although the Claimant obtained a job in December, 2020 he made no further applications after that. While waiting for this job shows an intent to return to work, it does not show an intent to return “as soon as” a suitable job was available. I recognize the Claimant had a good personal reason for not wanting to “burn the bridge”. However, a claimant cannot merely wait to be called to work and must look for employment to be entitled to benefits. The EI program is designed so that only those who are genuinely unemployed and actively looking for work will receive benefits. ^{Footnote 21}

[48] The Claimant did work part-time from March 8 to April 8, 2021. However, the Claimant did not ask his employer for full-time hours as he said he was fine with working part-time and this job fit around his schedule. I find the Claimant has not shown, therefore that he had an intent to return to a suitable job as soon as a suitable job was available from March 8 to April 8, 2021. The Claimant was only taking two courses from mid-February. The lectures were in the late afternoon and evenings and the Claimant said he was only spending 8 hours per week on school. The Claimant therefore had the ability to take on more work. However, he did not request additional hours from his employer and there is no evidence he applied for any other jobs to supplement the hours he had at this job. While claimants can work part-time and receive EI benefits, they still have to be seeking suitable work to the extent of their capability. The Claimant did not do that.

Making efforts to find a suitable job

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

[50] Subsection 9.001 of the Employment Insurance Regulations (EI Regulations) ^{Footnote 22}describes what types of efforts to find work are considered to be reasonable and customary efforts to find suitable work.

[51] These activities include: assessing employment opportunities, preparing a résumé or cover letter, 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, submitting job applications, attending interviews and undergoing evaluations of competencies.

[52] I have considered the list of job-search activities noted above in deciding this second factor. For this factor, that list is for guidance only.^{Footnote 23}

[53] The Commission says the Claimant has not provided evidence of looking for any full-time job or any job search activities other than one part-time job application over the period from October, 2020 until April, 2021.

[54] The Claimant’s efforts to find a new job included word of mouth, looking online for jobs and making two job applications. He also did two interviews, and a test for the job he obtained in late December, 2020.

[55] As above, I find the Claimant’s efforts do not show a sustained job search. There is more the Claimant could have done to find a job. For example, he could have registered with job search agencies. He could have phoned prospective employers. He could have sent out resumes to prospective employers. He could have applied for more jobs over the lengthy period in question.

[56] The Claimant’s efforts were not enough to meet the requirements of this second factor.

Unduly limiting chances of going back to work

[57] The Claimant has set personal conditions that might have unduly limited his chances of going back to work.

[58] The Claimant says he hasn’t done this because he was available to accept full-time work. He says he had a flexible online school schedule and could have worked without restriction.

[59] The Commission says the Claimant told the Commission that he could not work full-time. The Commission says the Claimant was restricting his availability around his schooling.

[60] I find that the Claimant set the personal restriction of waiting to start the job with his new employer from late December to March 8, 2021. He then set the personal restriction of only working part-time with this employer, rather than seeking supplemental work, despite the fact he was only spending eight hours a week at that time on his schooling. I find, by imposing these restrictions, the Claimant was unduly limiting his chances of obtaining other work. He was restricting himself from potential full-time employment or even supplemental part-time employment.  

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

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

Conclusion

[62] The Claimant hasn’t shown that he was available for work within the meaning of the law. Because of this, I find that the Claimant can’t receive EI benefits from October 5, 2020 to April 9, 2021

[63] This means that the appeal is dismissed.