Employment Insurance (EI)

Decision

[1] The appeal is allowed. The Claimant has shown that she was available for work while taking training. This means that she isn’t disentitled from receiving Employment Insurance (EI) benefits.

Overview

[2] The Claimant was a server and massage therapist. On March 17, 2020, she was laid off because of the COVID-19 pandemic. She got emergency benefits until September 2020.

[3] Then, her claim was transferred to the Employment Insurance Commission. She applied for EI regular benefits. A benefit period was established effective September 27, 2021.

[4] In the winter of 2021, the Claimant took training full-time in building design. She told the Commission she was available for work under the same conditions as she was before she lost her jobs.

[5] The Commission says that the Claimant isn’t entitled to receive benefits from January 11, 2021, because she hasn’t shown that she is available for work while in school full-time.

[6] The Claimant says that the Commission misinformed her about her claim for EI benefits. Also, the Commission delayed in making its decision, creating an overpayment of $8,780.

[7] Yet, she looked for a job, and she has custody of her child 25% of the time.

Issue

[8] Was the Claimant available for work while taking training?

Analysis

[9] Two different sections of the law require claimants to show that they are available for work. The Commission decided that the Claimant was disentitled under both of these sections. So, she has to meet the criteria of both sections to get benefits.

[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 (Regulations) give criteria that help explain what “reasonable and customary efforts” means.^{Footnote 2} I will look at those criteria below.

[11] 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 3} Case law gives three things a claimant has to prove to show that they are “available” in this sense.^{Footnote 4} I will look at those factors below.

[12] The Commission decided that the Claimant was disentitled from receiving benefits because she wasn’t available for work based on these two sections of the law.

[13] In addition, the Federal Court of Appeal has said that claimants who are taking training full-time are presumed to be unavailable for work.^{Footnote 5} 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 taking training full-time.

[14] 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 based on the two sections of the law on availability.

Presuming full-time students aren’t available for work

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

[16] The Claimant agrees that she is a full-time student, and I see no evidence that shows otherwise. I accept that the Claimant is taking training full-time. So, the presumption applies to the Claimant.

[17] 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.

[18] There are two ways the Claimant can rebut the presumption. She can show that she has a history of working full-time while also taking training.^{Footnote 6} Or, she can show that there are exceptional circumstances in her case.^{Footnote 7}

[19] I note that the Claimant started taking training in building design in January 2021, 30 hours a week. She contacted the Commission to see whether she could get EI benefits. She understood that she could get EI benefits.

[20] While in school, she made efforts to find a job in food service and massage therapy. She looked for a job that was similar to the one she had before getting EI benefits.

[21] She had three jobs before the COVID-19 pandemic. She had a hard time finding a job. In November 2020, she made efforts to find a job. The fact that she has a child also limited her search. There were also curfews that limited her job search.

[22] The Commission says that the Claimant hasn’t rebutted the presumption of non‑availability while in school. She doesn’t have a history of working while in school.

[23] The Commission also says that the Claimant hasn’t show that there are exceptional circumstances allowing her to work while in school. The Claimant is obligated to attend classes. She can’t change her course schedule or have any special conditions that would exempt her from attending. She prioritizes school; she can’t work during her school hours or work full-time.

[24] I want to point out that availability doesn’t mean a full-time, nine-to-five job. You have to show that you are available for work every working day. There are 24 hours in a day. Also, some jobs have atypical schedules.

[25] The question remains: Has the Claimant rebutted the presumption that she hasn’t been available since January because she is a full-time student?

[26] I find that the Claimant hasn’t shown that she has a history of being able to work while studying full-time. The evidence doesn’t support that the Claimant has previously worked while in school.

[27] But, because of the pandemic, she found herself in exceptional circumstances. If she hadn’t lost her jobs because of the pandemic, then she wouldn’t have applied for EI benefits.

[28] Availability is a question of fact.^{Footnote 8} So, I find that I have to consider the COVID-19 pandemic, which changed people’s way of living. Health rules changed during this period. There were curfews and business closures. Access to services was limited too.

[29] The Claimant was also taking training. The Commission paid her benefits and went back on its decision eight months later. Meanwhile, the Claimant still made some efforts to find a job.

[30] With this in mind, I find that the Claimant has rebutted the presumption of non‑availability because she is taking training full-time.

[31] Rebutting the presumption means only that the Claimant isn’t presumed to be unavailable. I still have to look at the two sections of the law that apply in this case and decide whether the Claimant is actually available.

Reasonable and customary efforts to find a job

[32] The first section of the law that I am going to consider says that claimants have to prove that their efforts to find a job were reasonable and customary.^{Footnote 9}

[33] The law sets out criteria for me to consider when deciding whether the Claimant’s efforts are/were [sic] reasonable and customary.^{Footnote 10} I have to look at whether her efforts were sustained and whether they were directed toward finding a suitable job. In other words, the Claimant has to have kept trying to find a suitable job.

[34] 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 11}

• assessing employment opportunities
• preparing a résumé or cover letter
• registering for job search tools or with online job banks or employment agencies

[35] The Commission says that the Claimant didn’t do enough to try to find a job. The Claimant said she didn’t really look for a job. She applied only to a few places.

[36] The Claimant disagrees. The Commission knew that the Claimant was less available because of her studies. It delayed in reviewing her file. If she had been told from the beginning that she could not get EI benefits or of the conditions to get them, then she would have done more job searching. She contacted the Commission several times for information. She still made some efforts to find a job.

[37] I am of the view that, given the COVID-19 pandemic, the Claimant made reasonable and customary efforts to find a job.

Capable of and available for work

[38] Case law sets out three factors for me to consider when deciding whether the Claimant was capable of and available for work but unable to find a suitable job.^{Footnote 12} The Claimant has to prove the following three things:^{Footnote 13}

1. a) She wanted to go back to work as soon as a suitable job was available.
2. b) She made efforts to find a suitable job.
3. c) She didn’t set personal conditions that might have unduly limited her chances of going back to work.

[39] When I consider each of these factors, I have to look at the Claimant’s attitude and conduct.^{Footnote 14}

Wanting to go back to work

[40] I note that the Claimant lost her job in food service and health care because of the pandemic. She enrolled in training in building design for the winter 2021 term to improve her chances of finding a suitable job during the pandemic.

[41] She told the Commission that she would rather be in school than work. Still, she looked for work. But, her file wasn’t processed before her classes started. There was a misunderstanding with the Commission. She wanted to work, but since she was getting benefits, she thought her file was in order with the Commission.

[42] I am of the view that the Claimant wanted to go back to work. I have to consider the pandemic and the Commission’s delay in making a decision in her file.

Making efforts to find a suitable job

[43] I have considered the list of job search activities mentioned above in deciding this second factor. For this factor, that list is for guidance only.^{Footnote 15}

[44] I explained above that the Claimant made some efforts to find a job while in school. Given the circumstances, I am of the view that her efforts were enough.

Unduly limiting chances of going back to work

[45] The Commission says that the Claimant limited her chances of going back to work by restricting her hours of availability outside her school hours. So, she was available only at certain times on certain days.^{Footnote 16}

[46] The Claimant understood that she had to find a job with the same conditions or even better ones. She finds that she hasn’t limited her hours of work because she could work the same hours. But because of the pandemic, there were restrictions like the curfew and a limit on the number of people allowed in a given place.

[47] I note that the Commission doesn’t dispute the fact that an agent could have misled the Claimant about her entitlement. Still, it says that this doesn’t change the situation.

[48] I disagree. Had the Commission given the Claimant correct information, the situation would not have been the same.

[49] I am of the view that the Claimant didn’t unduly limit her chances of going back to work in pandemic circumstances. She was available for work for the same number of hours before the pandemic, but was limited because of it.

[50] Also, I have come to the conclusion that the Claimant has rebutted the presumption of non-availability when she was taking training full-time.

[51] I disagree with the Commission that taking training full-time limits her chances. The Commission relies on Duquet and Gauthier.

[52] I am of the view that it doesn’t take Cyrenne into account.^{Footnote 17} Why establish a presumption at all if a claimant unduly limits their chances of going back to work as soon as they take training full-time?

[53] With that in mind, since it is a question of fact, I have to consider the COVID-19 pandemic. The pandemic limited the chances of finding a job for claimants who can rebut the presumption of non-availability.

[54] The Commission also argues that the Claimant restricted her availability when she turned down a job at the SAQ^{Footnote 18} by setting geographic restrictions. She also wasn’t hired at a restaurant because she hadn’t given her availabilities.

[55] The Claimant explained that she had to consider her family responsibilities.

[56] I am of the view that the jobs weren’t suitable within the meaning of the Regulations. Section 9.002(1)(b) says that a job should not be incompatible with the claimant’s family obligations even if they aren’t completely responsible for those obligations.

[57] For these reasons, I find that the Claimant didn’t unduly limit her chances of going back to work.

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

[58] Based on my findings on the three factors, I find that the Claimant has shown that she was capable of and available for work but unable to find a suitable job.

[59] In making my finding, I considered the evidence on file, the Claimant’s credible testimony, and her plausible explanations.

Conclusion

[60] The Claimant has shown that she was available for work within the meaning of the law. Because of this, I find that the Claimant isn’t disentitled from receiving benefits.

[61] This means that the appeal is allowed.