Employment Insurance (EI)

Decision

[1] I am allowing the appeal by the Canada Employment Insurance Commission (Commission). The General Division made an error of law. This error allows me to give the decision the General Division should have given: The Claimant, M. L., was unavailable for work, which means that she wasn’t entitled to the Employment Insurance (EI) benefits she received while in school.

Overview

[2] The Claimant applied for EI regular benefits. The Commission paid her benefits from July 2021.

[3] Several months later, the Commission found that the Claimant wasn’t available for work while in school, so she wasn’t entitled to the benefits she had received during that period.^{Footnote 1} The Commission’s decision created an overpayment on the Claimant’s account.

[4] The Claimant argues that she should not have to pay back the overpayment, since the Commission knew that she was a full-time student from the beginning of her studies.

[5] The Claimant appealed the Commission’s decision to the Tribunal’s General Division. It allowed the appeal, saying that the Commission hadn’t used its discretion judicially in deciding to reconsider the Claimant’s claim for benefits.

[6] The Commission is now appealing the General Division decision to the Appeal Division. It argues that the General Division made errors of law.

[7] I accept the Commission’s arguments. In addition, I can give the decision the General Division should have given: The Claimant was unavailable for work while in school, that is, from August 20, 2021, to May 25, 2022.

Issues

[8] The issues are as follows:

1. a)  Did the General Division make an error of law in finding that the Commission had used its discretion to reconsider the Claimant’s claim for benefits in a non-judicial manner?
2. b)  If so, what is the appropriate remedy?
3. c)  Was the Claimant available for work while in school?

Analysis

[9] The law allows me to intervene in this case if the General Division made an error of law.^{Footnote 2}

The General Division made an error of law

[10] The General Division made an error of law in finding that the Commission hadn’t used its discretion judicially when it reviewed the Claimant’s availability after the payment of benefits.

[11] Essentially, the General Division elevated the Commission’s reconsideration policy to the level of a legislative authority. As a result, it unduly fettered the Commission’s discretionary powers.

The law gives the Commission discretionary powers

[12] The Commission’s powers under sections 52 and 153.161(2) of the Employment Insurance Act (EI Act) are discretionary. The Commission may reconsider a claim for benefits and may verify a person’s entitlement to benefits they have already received, but it doesn’t have to.

[13] The Commission has to use its discretion judicially.

[14] The Tribunal can set aside a discretionary decision if, for example, a person can establish that the Commission:

• acted in bad faith
• acted for an improper purpose or motive
• took into account an irrelevant factor
• ignored a relevant factor
• acted in a discriminatory manner^{Footnote 3}

[15] In this case, the General Division found that the Commission had ignored the relevant factors set out in the Commission’s reconsideration policy, found in Chapter 17 of the Digest of Benefit Entitlement Principles.^{Footnote 4} It reads:

17.3.3 Reconsideration policy

The Commission has developed a policy to ensure a consistent and fair application of section 52 of the EIA [Employment Insurance Act] and to prevent creating debt when the claimant was overpaid through no fault of their own. A claim will only be reconsidered when:

• benefits have been underpaid
• benefits were paid contrary to the structure of the EIA
• benefits were paid as a result of a false or misleading statement
• the claimant ought to have known there was no entitlement to the benefits received

[16] The General Division looked at all four situations and found that none of them applied in this case. It then concluded that the Commission could not reconsider the Claimant’s claim for benefits.^{Footnote 5}

The General Division elevated the Commission’s reconsideration policy to the level of a legislative authority

[17] I find that the General Division made an error of law in coming to this conclusion. It elevated the Commission’s reconsideration policy to the level of a legislative authority.^{Footnote 6}

[18] Its conclusion reads (at paragraph 78 of the decision):

I find that the Commission didn’t follow the “Reconsideration Policy” it developed to ensure a consistent and fair application of section 52 of the Act and to prevent creating debt when the claimant was overpaid through no fault of their own, as the policy states.

[19] The Commission’s reconsideration policy was developed well before the COVID-19 pandemic. Because of this, the policy—and the General Division decision—doesn’t take into account section 153.161 of the EI Act or the modified operational approach that the Commission used to deal with the pandemic.^{Footnote 7}

[20] This new approach was meant to enable more efficient processing of claims for benefits while empowering the Commission to verify a student’s entitlement to benefits “at any point after benefits are paid.”^{Footnote 8} So, I agree that the General Division decision unduly fetters the Commission’s powers.

[21] The Commission did consider some information given by the Claimant and postponed considering all the factors related to her entitlement in more detail. Although this approach may have had a negative impact on the Claimant, the Commission felt that it would allow it to save processing time and pay benefits more efficiently.^{Footnote 9}

[22] So, I find that the Claimant hasn’t met the high standard of showing that the Commission acted in bad faith, arbitrarily, or for an improper purpose or motive. In reconsidering the Claimant’s claim for benefits and verifying her entitlement to benefits, the Commission acted in accordance with its modified operational approach and within its statutory powers. As a result, I find that it exercised its discretionary powers judicially.

I will give the decision the General Division should have given

[23] In its written submissions, the Commission argued that I should send the matter back to the General Division to reconsider the issue of the Claimant’s availability. But at the hearing, the Commission agreed that the evidence is complete and that I would also be able to give the decision the General Division should have given.

[24] I find that I should give the decision the General Division should have given.^{Footnote 10}

[25] The Claimant isn’t arguing that she was prevented from presenting her case in any way. The main facts aren’t in dispute, and the issue is a rather narrow one.

[26] This means that I can decide whether the Claimant was available for work while in school.

The Claimant wasn’t available for work while in school

[27] As I mentioned above, a person who wants EI regular benefits has to show (among other things) that they are “capable of and available for work” but aren’t able to find a suitable job.^{Footnote 11} The law doesn’t define “available,” but the Federal Court of Appeal established three factors in Faucher to guide the Tribunal when assessing a person’s availability.

The law presumes that full-time students are unavailable for work

[28] The law presumes that full-time students are unavailable for work.^{Footnote 12} The presumption is especially strong for people who leave full-time work to go to school.

[29] The presumption appears to be shorthand for the fact that, to accommodate their course schedule, full-time students normally restrict their availability in a patchwork fashion. As a result, it is often challenging for full-time students to meet the third Faucher factor. More specifically, EI claimants must not set personal conditions that might unduly (overly) limit their chances of going back to work.

[30] However, the presumption doesn’t apply to students who can show that they have exceptional circumstances.^{Footnote 13}

The Claimant hasn’t shown that she was available for work

[31] The presumption of non-availability applies to the Claimant.

[32] The Claimant was a full-time student, and she hasn’t shown exceptional circumstances that help rebut the presumption of non-availability.

[33] Before her studies, the Claimant worked full-time, generally during normal office hours.^{Footnote 14} When she started her studies, she wasn’t available to work the same hours anymore.^{Footnote 15}

[34] For valid reasons, the Claimant prioritized school.

[35] However, her course schedule imposed a significant limit on her availability for work. She became unemployed and looked for a job with very different hours. She repeatedly told the Commission that she would not leave her program or adjust her course schedule for the sake of accepting work.^{Footnote 16} In addition, at the General Division hearing, she said that she had turned down job offers because the jobs didn’t fit with her studies.^{Footnote 17}

[36] In the circumstances, I am unable to find a meaningful difference between this case and others in which the courts concluded that a person’s course schedule restricted their availability in a way that meant they were unavailable for work and not entitled to EI benefits.^{Footnote 18}

[37] After the General Division hearing, the Claimant provided information from the Commission’s website. In her opinion, this information supports her position that a person can go to school while receiving EI regular benefits.^{Footnote 19}

[38] However, the Commission’s website makes a distinction between programs of study that people take on their own initiative and those approved by a government authority.

[39] In this situation, where the person is taking a program of study on their own initiative, the person still has to prove that they are capable of and available for work and actively looking for a job. Unfortunately, the Claimant is unable to prove her availability.

Conclusion

[40] The General Division made an error of law in finding that the Commission had used its discretion to reconsider the Claimant’s claim for benefits in a non-judicial manner. On the contrary, the Commission acted in accordance with its modified operational approach and within its statutory powers. This means that it exercised its discretionary powers judicially.

[41] The General Division’s error allows me to give the decision the General Division should have given about the Claimant’s availability. Essentially, the Claimant has failed to rebut the presumption of non-availability that applies to full-time students.

[42] As a result, I am allowing the Commission’s appeal.

[43] Lastly, I sympathize with the Claimant. And I do understand how the Commission’s modified operational approach might have put her in a difficult financial situation.

[44] If she hasn’t already done so, the Claimant could contact the Canada Revenue Agency to ask whether her debt could be reduced (or written off) because it is causing her serious financial hardship.^{Footnote 20} Alternatively, she could ask for a feasible repayment plan.