Employment Insurance (EI)

Decision

[1] Permission to appeal is refused. The appeal will not proceed.

Overview

[2] The Respondent, the Canada Employment Insurance Commission (Commission), decided that the Applicant (Claimant) was not entitled to Employment Insurance (EI) regular benefits because he was taking unauthorized training and was not available for work. On reconsideration, the Commission upheld its initial decision. The Claimant appealed to the General Division.

[3] The General Division found that the Commission has the power to verify the Claimant’s entitlement after paying him benefits. It also found that the Commission exercised its discretion judicially. The General Division found that the Commission was justified in verifying the Claimant’s claim for benefits.

[4] The Claimant is now asking the Appeal Division for permission to appeal the General Division’s decision. He argues that the EI questionnaire is ambiguous on the issue of full-time availability. He argues that the Commission should have stopped his benefits if a full-time student is deemed to be unavailable for work.

[5] I have to decide whether there is an arguable case that the General Division made a reviewable error based on which the appeal has a reasonable chance of success.

[6] I am refusing permission to appeal because the Claimant has not raised a ground of appeal based on which the appeal has a reasonable chance of success.

Issue

[7] Does the Claimant’s appeal have a reasonable chance of success based on a reviewable error the General Division may have made?

Analysis

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

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 permission 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 at the hearing of the appeal on the merits. At the permission to appeal stage, the Claimant does not have to prove his case; he must instead establish that the appeal has a reasonable chance of success. In other words, he must show that there is arguably a reviewable error based on which the appeal might succeed.

[10] I will grant permission to appeal if I am satisfied that at least one of the Claimant’s stated grounds of appeal gives the appeal a reasonable chance of success.

Does the Claimant’s appeal have a reasonable chance of success based on a reviewable error the General Division may have made?

[11] The Claimant argues that the EI questionnaire is ambiguous on the issue of full‑time availability. He argues that the Commission should have stopped his benefits if a full-time student is deemed to be unavailable for work.

[12] During the pandemic, the government temporarily amended the Employment Insurance Act (EI Act). Section 153.161 was added to the EI Act and came into force on September 27, 2020. This provision applies to the Claimant, who established an initial claim for EI benefits on December 13, 2020.

[13] Section 153.161 of the EI Act says:

Availability

Course or program of instruction or non-referred training

153.161 (1) For the purposes of applying paragraph 18(1)(a), a claimant who attends a course, program of instruction or training to which the claimant is not referred under paragraphs 25(1)(a) or (b) is not entitled to be paid benefits for any working day in a benefit period for which the claimant is unable to prove that on that day they were capable of and available for work.

Verification

(2) The Commission may, at any point after benefits are paid to a claimant, verify that the claimant referred to in subsection (1) is entitled to those benefits by requiring proof that they were capable of and available for work on any working day of their benefit period.

[14] This temporary provision says that, for the purposes of applying section 18(1)(a) of the EI Act, the Commission may verify whether a claimant is entitled to benefits by requiring proof of their availability for work at any point after benefits are paid. This means that the verification of availability may not have happened while benefits were being paid.

[15] The General Division correctly found that section 153.161 of the EI Act allowed the Commission to verify whether the Claimant was entitled to benefits. However, the decision to carry out a verification under section 153.161 is discretionary. This means that, although the Commission has the power to carry out a verification, it does not have to do so.

[16] The General Division found that the Commission exercised its discretion judicially because it did not act in bad faith. It found that the Commission considered all the relevant factors before making its decision, and it ignored the irrelevant ones.

[17] While the temporary measures were in place during the pandemic, the Commission’s discretion to verify a claimant’s availability had to be exercised with the legislative intent of section 153.161 of the EI Act in mind.

[18] In implementing this section during the pandemic, Parliament clearly wanted to insist on the Commission’s power to verify whether a claimant taking a course, program of instruction, or training was entitled to EI benefits, even after the payment of benefits.

[19] I am of the view that the General Division did not make an error when it found that the Commission exercised its discretion within the parameters set by Parliament during the pandemic.

[20] The EI Act says that, to be entitled to benefits, a claimant has to establish their availability for work and, to do this, they have to actively look for work. A claimant must establish their availability for work for each working day in a benefit period, and this availability must not be unduly limited.

[21] Regarding the clear and precise question on the questionnaire, “If you found full time work but the job conflicted with your course/program, what would you do?”, the Claimant answered, “I would finish my course/program.”

[22] The evidence shows, on a balance of probabilities, that the Claimant was not available and unable to find a suitable job because he prioritized his studies and his availability was unduly restricted by the requirements of the program he was taking.

[23] After reviewing the appeal file, the General Division decision, and the arguments in support of the application for permission to appeal, I find that the appeal has no reasonable chance of success. The Claimant has not raised any issue that could justify setting aside the decision under review.

Conclusion

[24] Permission to appeal is refused. The appeal will not proceed.