Employment Insurance (EI)

Decision

[1] The appeal is allowed. The Claimant is not disentitled from receiving Employment Insurance (EI) benefits.

Overview

[2] The Claimant quit his job. He told the Canada Employment Insurance Commission (Commission) that he was injured at work and was unable to work for a few months. He also said that he could only work on certain days due to childcare requirements.

[3] The Claimant applied for EI benefits after quitting his job. The Commission established a claim and paid benefits. However, it later contacted the Claimant to discuss the claim and decided that he shouldn’t have received benefits because he wasn’t available for work due to injury.

[4] The Claimant appealed the Commission’s decision to the Tribunal’s General Division. The General Division dismissed the appeal, saying he unduly limited his chances of going back to work by only being available to work around his parenting schedule. The Claimant appealed the General Division decision to the Appeal Division. I gave the Claimant permission to appeal because the General Division may have made an error of law.

[5] The Commission now concedes that the General Division made a mistake. It says that the Claimant should not have been disentitled from EI benefits.

The parties agree on the outcome of the appeal

[6] Prior to the hearing, the Commission conceded the appeal. The Commission stated that the General Division made an error of law by failing to apply section 9.002(1)(b) of the Employment Insurance Regulations and by not addressing how the Claimant’s family obligations may have affected his availability.^{Footnote 1} At the hearing, the Commission explained that its position went beyond its written submission, and said it was conceding the entire appeal. It asks that I substitute my decision for that of the General Division, and remove the disentitlement it placed on the Claimant due to not being available for work due to injury.

[7] The Claimant stated at the hearing that he agrees with the Commission and wants me to give the decision the General Division should have given.

The General Division made an error of law by not considering section 9.002(1)(b) of the Employment Insurance Regulations

[8] I agree that the General Division made an error of law by not considering whether section 9.002(1)(b) of the Employment Insurance Regulations (EI Regulations) applied to render certain employment unsuitable for the Claimant.^{Footnote 2}

[9] The General Division referenced section 9.002 of the EI Regulations when it found the Claimant’s efforts to find a job were reasonable and customary.^{Footnote 3} However, it did not consider section 9.002(1)(b) when determining suitable employment. This is a legal error. It then found that the Claimant set a personal condition that unduly limited his chances of going back to work, because he was only available to work around his parenting schedule.^{Footnote 4}

[10] Since I agree with the parties that there is an error of law, I must decide how to fix the mistake.

The Claimant’s childcare was not a personal circumstance that unduly limited his chances of going back to work

[11] The law says that people must show they are “capable of and available for work” but aren’t able to find a suitable job.^{Footnote 5}

[12] Availability is assessed using three factors, established in the Faucher decision:

• Did the Claimant want to go back to work as soon as a suitable job was available;
• Did the Claimant make efforts to find a suitable job; and
• Did the Claimant set any personal conditions that might have unduly limited his chances of going back to work.^{Footnote 6}

[13] The General Division found that the Claimant met the first two Faucher factors. I am only considering the third factor, which was the basis for the General Division’s denial of the appeal.

[14] Claimants only have to prove their availability for suitable employment.^{Footnote 7} The Employment Insurance Act (EI Act) and EI Regulations explain how to determine whether a job is suitable.^{Footnote 8}

[15] The suitability of employment depends on factors including:

• a person’s usual occupation
• their past earnings
• their previous working conditions
• whether their health and physical capabilities allow them to commute to the place of work and to perform the work
• whether the hours of work are incompatible with their family obligations or religious beliefs.

[16] In this case, I find the Claimant has proven his availability from September 28, 2020, onwards.

[17] Aside from meeting all of the other criteria, he also meets the third Faucher factor. He did not set personal conditions that might have overly limited his chances of returning to work.

[18] While the Claimant had to arrange his employment around his parenting schedule, this is not a personal condition that affects his ability to find suitable employment. Some of the jobs the Claimant applied for had scheduling requirements that weren’t possible for him, considering his childcare obligations. This means those jobs were not suitable employment, considering his family obligations.

[19] I am satisfied, having regard to the Faucher factors, and considering all the circumstances, that the Claimant has proven his availability for work from September 28, 2020, onwards.

Conclusion

[20] The appeal is allowed. The General Division made an error of law. The Claimant was available for work and is meets the availability requirements for receiving EI benefits.