Employment Insurance (EI)

Decision

[1] The appeal is allowed. The Claimant, L. M., was available for work in February 2021.

Overview

[2] The Claimant wants employment insurance (EI) benefits from February to May 2021. The Canada Employment Insurance Commission (Commission) decided not to pay him benefits because he wasn’t considered available for work without a valid work permit.

[3] The Social Security Tribunal’s General Division agreed with the Commission that the Claimant wasn’t available for work. The Claimant appealed to the Appeal Division.

[4] I have found that the General Division erred by not considering important evidence about the Claimant’s chances of returning to work. The Claimant met the criteria for being available for work. His disentitlement is lifted.

Issues

[5] The issues in this appeal are:

1. a) Did the General Division make an error of fact by not considering relevant evidence about the Claimant’s chances of returning to work?
2. b) Did the General Division make other reviewable errors?
3. c) How should the General Division’s error be fixed?

Some aspects of the General Division are not disputed

[6] The parties have not disputed the following aspects of the General Division decision:

• To get benefits, the Claimant had to prove that he was capable of and available for work.^{Footnote 1}
• The General Division correctly set out the three factors (commonly called the “Faucher factors”) that must be considered on the question of availability.^{Footnote 2}
• The first two Faucher factors – wanting to go back to work and making efforts to find a suitable job – were met.^{Footnote 3}

[7] It is the third Faucher factor – whether the Claimant set personal conditions that might unduly limit his chances of going back to work – that is in dispute. 

The General Division made an error of fact

[8] One of the grounds of appeal to the Appeal Division is that the General Division based its decision on an erroneous finding of fact that it made without regard for the evidence before it.^{Footnote 4}

[9] As the Commission’s representative points out, this ground of appeal requires deference to the General Division’s findings of fact. The Appeal Division can only intervene if a finding was contrary to the evidence, unsupported by the evidence, or did not take into account important evidence.^{Footnote 5}

[10] The General Division found that the Claimant was limited in his chances of going back to work because he had not proven that he was legally able to work in February 2021.

[11] The Claimant didn’t have a work permit between April 12, 2020 and July 19, 2021. So, the General Division focused on whether the Claimant met the conditions for implied status, looking at the evidence about the Claimant’s work permit applications to Immigration, Refugees and Citizenship Canada (IRCC). The General Division wasn’t persuaded that the Claimant had met IRCC’s criteria for implied status.

[12] But, in finding that the Claimant had limited his chances of returning to work in February 2021, the General Division ignored uncontested and important evidence: the Claimant had returned to work, repeatedly, during the April 2020 to July 2021 gap between work permits. His regular employer re-hired him three times (in July 2020, November 2020, and May 2021). In total, the Claimant worked for over 9 months of the 15-month gap period. He and his employer relied (whether correctly or not) on implied status.

[13] I agree with the Commission’s representative that the General Division was aware that the Claimant had returned to work in May 2021.^{Footnote 6} The General Division said that the employer’s understanding of the Claimant’s work status did not prove that status.^{Footnote 7} But the General Division didn’t consider the Claimant’s demonstrated ability to work between work permits when it decided whether he had unduly limited his chances of going back to work.^{Footnote 8} The General Division made this finding of fact without regard to the material before it.

[14] This error allows me to intervene.

I don’t need to decide about other errors

[15] Two other possible errors have come up in this appeal.

[16] First, a question of procedural fairness. At the hearing, the General Division member told the Claimant that she had accepted his evidence about applying for a work permit through his lawyer in 2020, and that she recognized that he had implied status at that time. In her decision, she rejected this evidence and concluded that the Claimant hadn’t proven implied status.^{Footnote 9} This raises a concern about the Claimant’s right to be heard. He may well have assumed that he did not need to provide additional information about implied status based on the member’s assurances.

[17] Second, a possible legal error. Another way to think about the error of fact discussed above is as a legal error: the General Division may have applied the wrong legal test by focusing solely on whether the Claimant met IRCC criteria for implied status and not on whether his situation unduly limited his chances of returning to work.

[18] Because I can intervene based on the error of fact, I need not decide whether the General Division made these other errors.

How should I fix the General Division’s error?

[19] I see no benefit to returning this matter to the General Division, where it started over a year ago. The General Division’s error relates to only one aspect of its decision, and I can now give the decision the General Division should have given if it hadn’t made that error.^{Footnote 10} There is sufficient evidence for me to decide the disputed third factor: Did the Claimant set personal conditions that might unduly limit his chances of going back to work?

The absence of a formal work permit didn’t unduly limit the Claimant’s chances of going back to work

[20] I recognize that not having a work permit will usually limit, if not eclipse, a claimant’s chances of returning to work. But this is a question of fact in every case.

[21] The Commission’s representative identified two Appeal Division decisions that found claimants unavailable because they couldn’t prove that they could legally work.^{Footnote 11} I don’t find those decisions persuasive, because the facts are different. Unlike the present appeal, those claimants’ work permit applications had been formally denied, and neither claimant had demonstrated an ability to work in the absence of a formal work permit.

[22] In one of those decisions, the Appeal Division specifically noted that the claimant did not have a willing employer and found that he was “unable to work due to the absence of a valid work permit.”^{Footnote 12} In the present appeal, the Claimant was able to work despite the absence of a formal work permit.

[23] Having reviewed the evidence that was before the General Division, I find it more likely than not that the absence of formal work authorization did not unduly limit the Claimant’s chances of returning to work. The following details are important:

• The Claimant had formal work permits both before and after he applied for EI benefits in February 2021, and a regular employer.
• IRCC allows temporary residents to keep working under implied status, if they’ve applied to extend their status, until a decision is made. Although IRCC makes a decision about the work permit, there is no indication that IRCC makes a decision about implied status.
• The Claimant did not, on a balance of probabilities, receive a work permit refusal from IRCC. I make this finding based on the Claimant’s unchallenged testimony, the absence of any documentation to the contrary, and the eventual approved work permit. Despite the long gap period from April 2020 to July 2021 and IRCC’s advertised service standards, I can’t assume that the Claimant received a refusal during that period.^{Footnote 13} Moreover, I find it unlikely that the Claimant, a temporary resident regularly reporting to immigration authorities (as he testified), would have risked his status in Canada by working after a work permit refusal.
• The Claimant may or may not have met IRCC criteria for implied status.^{Footnote 14} Nevertheless, he and his employer acted on the assumption that he was allowed to work.
• The employer re-hired the Claimant three times during the gap between work permits, before and after February 2021.
• Canada Revenue Agency categorized the Claimant’s employment during this period as insurable, without raising any red flags about the legality of this employment.

[24] Ultimately, I am persuaded by the possibility of informal work status together with the key players’ reliance on implied status and the Claimant’s actual work history. In this unusual set of circumstances, the Claimant’s chances of returning to work in February 2021 was not in fact limited by the absence of a formal work permit.

The Claimant was available for work

[25] I have found that the Claimant’s work permit situation did not unduly limit his chances of returning to work.

[26] The Commission has not argued that the Claimant set any other limiting personal conditions. I recognize that the Claimant prioritized a return to work with his regular employer: he expected to return when pandemic restrictions were lifted and a new employer may not have accepted implied status. The General Division determined that this was the Claimant’s best chance of returning to work, and noted that the nature of his layoff would also have affected other employment. There is no basis for me to interfere with these (undisputed) findings of fact by the General Division. On these facts, I find it more likely than not that focusing on a return to his regular employment did not unduly limit the Claimant’s chances of returning to work as soon as possible.^{Footnote 15} Indeed, the Claimant’s period of unemployment was relatively brief.

[27] Accordingly, the third (and only disputed) Faucher factor has been met. So, the Claimant was available for work when he applied for benefits in February 2021. The disentitlement is lifted.

Conclusion

[28] The appeal is allowed. The General Division made a factual error. The Claimant’s work permit situation did not unduly limit his chances of returning to work in February 2021. The disentitlement for being unavailable for work is lifted.