Employment Insurance (EI)

Decision

[1] Leave to appeal is refused. This means the appeal will not proceed.

Overview

[2] The Respondent, the Canada Employment Insurance Commission (Commission), decided that the Applicant (Claimant) was disentitled from receiving Employment Insurance (EI) regular benefits from July 11, 2021, because she was not available for work. Upon reconsideration, the Commission maintained its initial decision. The Claimant appealed the reconsideration decision to the General Division.

[3] The General Division found that the Claimant did not demonstrate a sincere desire to return to work and that she did not make any efforts to find a job because she had decided to retire from work. It further found that the Claimant had set personal conditions that might unduly limit her chances of returning to the labour market. The General Division concluded that the Claimant did not show that she was capable of, and available for work but unable to find a suitable job.

[4] The Claimant seeks leave to appeal of the General Division’s decision to the Appeal Division.  She submits that she did not make an Employment Insurance (EI) claim because she was sick. She submits that her claim was because she retired from work.

[5] I must decide whether there is some reviewable error of the General Division upon which the appeal might succeed.

[6] I am refusing leave to appeal because the Claimant’s appeal has no reasonable chance of success.

Issue

[7] Does the Claimant raise some reviewable error of the General Division upon which the appeal might succeed? 

Analysis

[8] Section 58(1) of the Department of Employment and Social Development Act (DESD Act) specifies the only grounds of appeal of a General Division decision. These reviewable errors are that:

1. The General Division hearing process was not fair in some way.
2. The General Division did not decide an issue that it should have decided. Or, it decided something it did not have the power to decide.
3. The General Division based its decision on an important error of fact.
4. The General Division made an error of law when making its decision.

[9] An application for leave to appeal is a preliminary step to a hearing on the merits. It is an initial hurdle for the Claimant to meet, but it is lower than the one that must be met on the hearing of the appeal on the merits. At the leave to appeal stage, the Claimant does not have to prove her case but must establish that the appeal has a reasonable chance of success based on a reviewable error.  In other words, that there is arguably some reviewable error upon which the appeal might succeed.

[10] Therefore, before I can grant leave, I need to be satisfied that the reasons for appeal fall within any of the above-mentioned grounds of appeal and that at least one of the reasons has a reasonable chance of success. 

Does the Claimant raise some reviewable error of the General Division upon which the appeal might succeed?

[11] The Claimant submits that she did not make an EI claim because she was sick. She requested for regular EI benefits because she decided to retire from work.

[12] To be considered available for work, a claimant must show that he is capable of, and available for work and unable to obtain suitable employment.^{Footnote 1}

[13] Availability must be determined by analyzing three factors:

1. (1) the desire to return to the labour market as soon as a suitable job is offered,
2. (2) the expression of that desire through efforts to find a suitable job, and
3. (3) not setting personal conditions that might unduly limit the chances of returning to the labour market.^{Footnote 2}

[14] Furthermore, availability is determined for each working day in a benefit period for which the claimant can prove that on that day he was capable of and available for work, and unable to obtain suitable employment.^{Footnote 3}

[15] The General Division found that the Claimant did not demonstrate a sincere desire to return to work and that she did not make any efforts to find a job because she decided to retire from work. It further found that the Claimant had set personal conditions that might unduly limit her chances of returning to the labour market. The General Division concluded that the Claimant did not show that she was capable of, and available for work but unable to find a suitable job.

[16] In her application for regular benefits, the Claimant stated that she quit her job due to retirement.^{Footnote 4}

[17] During an initial interview by the Commission, the Claimant stated that she applied for EI benefits because she was retiring and giving up work.^{Footnote 5}

[18] During her reconsideration interview, the Claimant stated that she made a personal decision to retire, as indicated on her Record of Employment (ROE).^{Footnote 6}

[19] To be entitled to benefits, a claimant must establish their availability for work, and to do this, they must actively look for work. A claimant must establish their availability for work for each working day in a benefit period. It follows the position that the employment insurance program is designed so that only those who are genuinely unemployed and actively looking for work will receive benefits.^{Footnote 7} 

[20] The evidence supports the General Division’s conclusion that the Claimant did not demonstrate that she was available for work but unable to find a suitable job. The Claimant made a personal decision to retire and was not looking for work from July 11, 2021, through to February 7, 2022.

[21] I see no reviewable error made by the General Division. The Claimant does not meet the relevant factors to determine availability.

[22] The Claimant submits that the Commission should have told her from the beginning that she was not eligible to receive EI regular benefits considering that her ROE clearly indicates that she retired from work.

[23] Unfortunately, for the Claimant, the Federal Court of Appeal case law has established that a claimant who receives an amount without being entitled to it, even as a result of a mistake by the Commission, is not excused from repaying the amount.^{Footnote 8}

[24]   If the Claimant wants to request a write-off of her debt, she must make a formal request directly to the Commission, so that a decision is rendered on that issue.

[25] After reviewing the appeal file, the General Division decision, and the Claimant’s arguments, I find that the General Division considered the evidence before it and properly applied the Faucher factors in determining the Claimant’s availability. I have no choice but to find that the appeal has no reasonable chance of success.

Conclusion

[26] Leave to appeal is refused. This means the appeal will not proceed.