Employment Insurance (EI)

Decision

[1] I am dismissing the Claimant’s appeal. This decision explains why.

[2] I agree with the Canada Employment Insurance Commission (Commission) that the Claimant did not show he was available for work while taking courses from October 4, 2020, to December 17, 2021.

[3] So, the Claimant is disentitled from receiving employment insurance (EI) benefits.

Overview

[4] On April 3, 2020, the Claimant was put on the Canada Emergency Subsidy Program. On June 6, 2020, he was laid off from his job as a flight attendant, with an unknown return-to-work date. He was recalled to work on September 15, 2021.

[5] The Claimant took non-referred courses from September 14, 2020, to July 31, 2021, and from September 13, 2021, to December 17, 2021.

[6] On February 8, 2022, the Commission decided that the Claimant was not available for work from September 6, 2021 to December 17, 2021. It disentitled him from receiving benefits during this period.

[7] The Claimant requested a reconsideration of the Commission’s decision. So, the Commission reconsidered his claim. On March 30, 2022, it found that the Claimant was disentitled to benefits for a longer period, from October 4, 2020, to December 17, 2021.

[8] To get EI regular benefits, claimants have to prove that they are available for work. To prove availability, you must keep searching for work and set no personal conditions that might unduly (unreasonably) limit your chances of finding a suitable job.

[9] The Commission says the Claimant was not available for work because he was waiting for a recall while taking a non-referred course rather than trying to find another job.

[10] The Claimant says he was available for suitable work since he could study online at his own pace and his recall was imminent. He says the Commission approved his benefits.

The issue I must decide

[11] Was the Claimant disentitled from receiving benefits from October 4, 2020, to December 17, 2021?

Analysis

[12] The law says all claimants must show that they are available for work.^{Footnote 1} A new temporary section of the Employment Insurance Act (EI Act) confirms that students who are studying full-time cannot get benefits unless they prove that they are capable of and available for work.^{Footnote 2} They have to show it is more likely than not that they are available.

Assuming that full-time students are not available for work

[13] There is a presumption that claimants in school full time are unavailable for work.^{Footnote 3} This means we can assume (take for granted) that full-time students are unavailable unless they can show otherwise. I will start by looking at whether I can assume that the Claimant was unavailable. Then I will look at whether he was available for work.

[14] On his application for benefits, the Claimant reported that he was a full-time student. He later said his three online courses made him a part-time student according to his college. There is no evidence either way. So, I will use his first reports of full-time studies to first consider whether he can rebut the presumption of non-availability.

[15] I do not find that the Claimant can rebut this presumption since he had no history of working full time while studying full time and had no exceptional circumstances.

[16] Although I find that the Claimant cannot rebut the presumption, I must still consider the law that applies to him decide whether he was available for work.

[17] The Commission says claimants must make “reasonable and customary” efforts to find work under section 50(8) of the Employment Insurance Act (EI Act). But the Commission applied the test for availability under section 18(1)(a) of the EI Act. So, I will only consider the test for availability under that section and under section 153.161 of the EI Act. The test now follows.

Was the Claimant available for work and unable to find a suitable job?

[18] To show he was available for work, the Claimant had to prove three things:

1. i) He wanted to return to work as soon as he could find a suitable job.
2. ii) He tried to make this happen through efforts to find work.
3. iii) He had no personal conditions that might unduly limit his chances of finding a suitable job.^{Footnote 4}

[19] I have to consider each of these factors to decide the question of availability. I must also look at the Claimant’s attitude and conduct.^{Footnote 5}

Did the Claimant want to return to work as soon as he could find a suitable job?

[20] No. The Claimant he did not show that he wanted to return to work as soon as he could in any suitable job. He was waiting for a recall to his previous job while also studying to improve his qualifications.

[21] The Claimant argues that his recall was “imminent” so he can show he wanted to return to work by waiting for his recall and immediately accepting it. He says the airline started recalls by seniority a month after the lay-offs and his recall would come soon after.

[22] I find that the Claimant cannot show that he wanted to return to work as soon as he could when he was prepared to wait 15 months without work for a recall to his old job.

Did the Claimant make enough efforts to find suitable employment?

[23] No. The Claimant did not show the made enough effort to find work suitable work. He says he thought the notation in his My Canada Service Account (MSCA) on October 18, 2020, that his training has been added meant that his training had been approved.^{Footnote 6} He says he thought that meant he did not have to look for a job while waiting for a recall.

[24] I acknowledge that the Claimant thought his recall was definite so he delayed looking for work. He argues that being able to keep his seniority showed he would be recalled. He says he was justified in waiting since under the airline’s collective agreement, it could not hire any new employees before recalling those on lay-off.

[25] But this provision, on its own, does not show that the Claimant’s recall was guaranteed. He says he lost his health benefits in June 2020. There was no return date of his ROE. So, he has not shown that he had job security. Uncertainty in the industry at the time could have caused permanent staff cuts.

[26] The Claimant acknowledges this reality when he says he needed to take a course in Business Management to “make me more employable in the ever changing job market.”^{Footnote 7}

[27] The Claimant says his job search consisted of looking online and networking with family and friends who had jobs in banking or the hotel industry. He says he could not get a job in banking since he had not finished his degree and there were no hotel jobs after the travel industry collapsed. He did not apply to any jobs. He says he would have applied to jobs outside his occupation and accepted work with lower pay if he had not been recalled.

[28] But the Claimant was not recalled for 15 months. He did not have to prove that his recall was “imminent.” ^{Footnote 8} He is not automatically disentitled from receiving benefits because his recall took so long. But he still had to show that he looked for work while he waited.

[29] The Claimant argues that there were no suitable jobs to apply to due to the pandemic. I agree that it was a difficult job market because of COVID-19. But you still have to show you tried to find work even if you believe you have little chance of success.

[30] The Claimant did not show that he tried very hard to find work. The few job search efforts he reported do not outweigh his statement that he assumed his course had been approved and he did not need to look for work.

[31] So, I find that the Claimant did not prove that he made enough efforts to look for suitable employment while taking a non-referred course and waiting for a recall.

Did the Claimant set personal conditions?

[32] Yes. The Claimant set personal conditions on the type of work he would accept. These conditions limited his availability. The law says you cannot set personal conditions that unduly limit your chances of returning to the labour market in a suitable job.^{Footnote 9}

[33] I considered whether the Claimant set a personal condition on his availability by taking a non-referred course. Taking a course while unemployed was his personal choice but I do not find that it unduly limited his availability for work. I accept his testimony that he could study online at his own pace, as he did when he later returned to full-time work. But, it is not enough to have the time to work; you have to show that you searched for it.

[34] Waiting for 15 months to be recalled to your previous job rather than focusing on searching for other suitable employment is a personal condition. This condition unduly limits your availability for work and your chances of finding a suitable new job.

[35] The Claimant argues that there were no jobs in the aviation industry once COVID-19 began. I agree. But since a core feature of his job as a flight attendant was customer service, jobs in that sector might have been suitable. He also said he was a “trained safety professional” and that his “life experiences” in his job had prepared him for anything.

[36] But there is no evidence that the Claimant seriously considered any suitable positions in any other sector where he could use his transferable skills.

[37] I considered the Claimant’s argument that he should not have been required to search for work outside his occupation for a “reasonable” time. He does not accept that delaying his job search was a personal condition that unduly limited his availability.

[38] The requirement to search for a suitable job starts on the first day of your unemployment. The law says everyone who claims regular benefits must show they are available for work on every working day but are unable to find suitable employment.^{Footnote 10} It does not matter how little chance of success you believe you have or if you only expect to be unemployed for a short time.^{Footnote 11}

[39] The law says employment is not “suitable” if it is outside the claimant’s usual occupation and the job is at a lower rate of earnings and less favourable conditions.^{Footnote 12} The law also says a claimant may be required to expand his job search beyond the requirements of the above section after a “reasonable interval.” ^{Footnote 13} The length of this interval is not defined in the law. It depends on the circumstances.

[40] There is no evidence that the Claimant started a serious job search as soon as he was laid off or while waiting for his delayed recall. There is no evidence that he expanded his job search after a “reasonable interval” either. He said he “had no intention of taking a job with less favourable pay and benefits, only to quit shortly thereafter.” ^{Footnote 14}

[41] This suggests that the Claimant saw 15 months as a reasonable time to wait before starting—or expanding—his job search. I do not agree that 15 months was reasonable.

[42] Without a job search, the Claimant cannot show that he tested the market for other suitable jobs during the 15 months of his unemployment. Nor can he show that he did not continue to restrict himself to only one type of job in a sector that had shut down.^{Footnote 15} So, he cannot establish that all other suitable jobs paid less or had less favourable conditions.

[43] As noted above, I find it more likely than not that the Claimant did not try to find another suitable job since his stated intention was to wait for a recall. He says it would be unfair to start a new job and have a new employer train him since he planned to return to his old position as soon as he was recalled. He was also relying on his assumption that his training was approved in October 2020 and he could wait for a recall to his job without having to do a job search.

[44] But the word “approved” does not appear in the notations that the Claimant cited from his MSCA. The word does not appear anywhere in his conversations or correspondence with the Commission.

[45] So, I find that the Claimant had the personal condition of only wanting to return to his old job and he maintained this condition after misinterpreting the notations in his MSCA. I also find that this condition unduly limited his ability to find other suitable work.

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

[46] Based on my findings on the above three factors, I find that the Claimant has not shown that he was capable of and available for work and unable to find a suitable job.

[47] The law says the Commission can retroactively verify whether students were entitled to the regular benefits they received.^{Footnote 16} Since the Claimant did not show, on a balance of probabilities, that he was available for work, he must repay these benefits.^{Footnote 17}

[48] The Claimant says he would have dropped his course if he had know he could not get benefits while waiting for his recall.^{Footnote 18} But EI is not a student grant. The law says students who claim benefits have to prove by their actions that they are available for work, as interpreted above. I cannot change the law.^{Footnote 19}

Conclusion

[49] The Claimant is disentitled from receiving benefits from October 4, 2020, to December 17, 2021, because he did not show that he was available for work.

[50] This means that I am dismissing the Claimant’s appeal.