Employment Insurance (EI)

Decision

[1] The appeal is allowed in part.

[2] The Appellant isn’t entitled to benefits while he was outside Canada.

[3] The Appellant knowingly made false or misleading statements when he completed his bi-weekly claims. The Commission acted in a judicial way when it issued a penalty in the form of a warning.

[4] The Appellant has shown that he was available for work while outside Canada.   

Overview

[5] The Canada Employment Insurance Commission (Commission) decided that the Appellant was disentitled from receiving Employment Insurance (EI) regular benefits from January 25, 2019, to March 20, 2019, because he was outside Canada.

[6] I have to decide if the Appellant was entitled to benefits while he was outside Canada. Usually, claimants aren’t entitled to benefits while outside Canada. To be entitled to benefits, they have to prove that the meet one of the exemptions listed in the law.

[7] The Commissions says the Appellant wasn’t entitled to benefits while outside Canada. The Appellant disagrees and says didn’t know the rules of the EI program.

[8] The Commission decided that the Appellant made false or misleading statements. It says he didn’t declare that he was outside Canada. So, it issued a warning.

[9] The Appellant says someone showed him how to complete his bi-weekly claimant reports and he followed the same format while he was outside Canada.

[10] The Commission decided the Appellant was disentitled from receiving EI benefits from January 17, 2019, to March 2019, because wasn’t available for work.

[11] A claimant has to be available for work to get EI regular benefits. Availability is an ongoing requirement. This means that a claimant has to be searching for a job.

[12] I must decide whether the Appellant has proven that he was available for work. The Appellant has to prove this on a balance of probabilities. This means that he has to show that it is more likely than not that he was available for work.

Issues

[13] Was the Appellant entitled to EI benefits while he was outside Canada?

[14] Was the Appellant available for work?

[15] Did the Commission properly impose a penalty in the form of a warning?

[16] Does the Appellant have to repay the overpayment?

Analysis

Outside Canada

[17] Claimants are not entitled to receive benefits for any period when they are not in Canada.^{Footnote 1} There are some exceptions to this rule.^{Footnote 2} There is an exemption for a claimant who is outside Canada to visit a family member who is seriously ill or injured.^{Footnote 3}

[18] The Commission learned from the Canada Border Services Agency that the Appellant was outside Canada while getting EI benefits. In response to questions from the Commission, the Appellant said he left Canada to see his son who was injured in an accident.

[19] The Appellant confirmed at the hearing that he was outside Canada from January 17, 2019, to March 21, 2019. He testified that he made a mistake but didn’t know that he could not get EI benefits while outside Canada.

[20] The Commission said it accepts the reason the Appellant was outside Canada was to visit his seriously ill family member. So, it applied an exemption for seven days and disentitled the Appellant from January 25 to March 20, 2019.

[21] The Appellant didn’t give any other reasons for being outside Canada. So, I find that he left Canada to visit his son who was injured. I find that no exemptions apply other than the one the Commission applied. For this reason, I find that a disentitlement should be imposed from January 25 to March 20, 2019, because the Appellant was outside Canada.

Availability

[22] Two different sections of the law require Appellants to show that they are available for work. The Commission decided that the Appellant was disentitled under both of these sections. So, he has to meet the criteria of both sections to get benefits.

[23] First, the Employment Insurance Act (Act) says that a claimant has to prove that they are making “reasonable and customary efforts” to find a suitable job.^{Footnote 4} The Employment Insurance Regulations (Regulations) give criteria that help explain what “reasonable and customary efforts” mean.^{Footnote 5}

[24] The Commission states that they disentitled the Appellant under section 50 of the Act along with sections 9.001 of the Regulations for failing to prove his availability for work. In their submissions, they say that showing availability requires a claimant to make reasonable and customary efforts to find suitable employment.

[25] The Commission’s notes do not reflect that they asked the Appellant to prove his availability by sending them a detailed job search record. It referred to section 50 of the Act in its submissions, but later said it didn’t disentitle the Appellant under this part of the Act. So, I won’t consider a disentitlement under this part of the law.

Capable of and available for work

[26] The second part of the Act that deals with availabilitysays that a claimant has to prove that they are “capable of and available for work” but aren’t able to find a suitable job.^{Footnote 6} Case law gives three things a claimant has to prove to show that they are “available” in this sense.^{Footnote 7} I will look at those factors below.

[27] The Commission decided that the Appellant was disentitled from receiving benefits because he wasn’t available for work based on this section of the law.

[28] Case law sets out three factors for me to consider when deciding whether the Appellant was capable of and available for work but unable to find a suitable job. The Appellant has to prove the following three things:^{Footnote 8}

1. a) He wanted to go back to work as soon as a suitable job was available.
2. b) He made efforts to find a suitable job.
3. c) He didn’t set personal conditions that might have unduly (in other words, overly) limited his chances of going back to work.

[29] When I consider each of these factors, I have to look at the Appellant’s attitude and conduct.^{Footnote 9}

Wanting to go back to work

[30] The Appellant has shown that he wanted to go back to work as soon as a suitable job was available.

[31] The Commission says it accepts that the Appellant wanted to return to work.

[32] The Appellant testified that he had been looking for work since he was laid off in November 2018. He left Canada in a hurry due to his son’s injury. He said he looked for work while outside Canada.

[33] I have no reason to doubt the Appellant’s evidence. I agree with the Commission and find that he wanted to go back to work.

Making efforts to find a suitable job

[34] The Appellant has shown that he made enough effort to find a suitable job.

[35] The Regulations list nine job‑search activities I have to consider. Some examples of those activities are the following:^{Footnote 10}

• registering for job-search tools or with online job banks or employment agencies
• applying for jobs
• attending interviews

[36] I have considered the list of job-search activities given above in deciding this second factor. For this factor, that list is for guidance only.^{Footnote 11}

[37] The Commission says it accepts that the Appellant was making efforts to find a job.

[38] The Appellant testified that he was searching for work but couldn’t find anything. He said he used job-search websites like Indeed, Wow Jobs and Recreator and sent out résumés. He said he offered to send the Commission the jobs he had applied for, but it said no.

[39] I don’t doubt the Appellant’s testimony that he had looked for work from the time he was laid off. So, I agree with the Commission, and find that the Appellant made enough efforts to find work.

Unduly limiting chances of going back to work

[40] The Appellant didn’t set personal conditions that might have unduly limited his chances of going back to work.

[41] The Commission says the Appellant’s decision to leave and stay outside of Canada is a personal condition that unduly limited his chances of returning to work. It says it isn’t credible that the Appellant would travel due to an emergency with his child but also say he could return to Canada at any time.

[42] The Appellant says if he had gotten a job offer while outside of Canada, he would have returned immediately.

[43] The Appellant testified that the travel time between Canada and where he went outside Canada was 36 hours. He said he had seen his son after two weeks of being outside Canada. He said if a job came up, he would have returned to Canada. He added that the point was to see his son, spend some time and then return. The Appellant said that without an income, he can’t live.

[44] Again, I have no reason to doubt the Appellant’s testimony. I found him generally to be clear, honest, and straightforward. So, I accept that he would have returned if he got a job offer. It makes sense to me that the Appellant would want to leave Canada to see his young son who was injured. It also makes sense to me that he would want to return as soon as possible on receiving a job offer as he testified.

[45] The Appellant was outside Canada. But I don’t find that by doing so, he set personal conditions that might have unduly limited his chances of returning to work.

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

[46] Based on my findings on the three factors, I find that the Appellant has shown that he was capable of and available for work but unable to find a suitable job.

Did the Commission properly impose a penalty in the form of a warning?

[47] The Commission can impose a penalty on a claimant if, in its opinion, the claimant provided information or made a representation that the claimant knew was false or misleading.^{Footnote 12}

Did the Appellant make false or misleading statements?

[48] Yes, the Appellant made false or misleading statements.

[49] The Appellant was outside Canada. He left while he was getting EI benefits. In his claimant reports, he said he wasn’t outside Canada.

[50] The Appellant confirmed at the hearing that he completed bi-weekly claims while he was outside Canada. He didn’t dispute that he said in the reports that he wasn’t outside Canada. He explained that someone showed him how to do the bi-weekly reports when he first applied for EI benefits. So, on this second claim, he completed the reports in the same way.

[51] I have already found that the Appellant was outside Canada while getting EI benefits. He left on January 17, 2019, and returned on March 21, 2019. The Appellant completed bi-weekly reports covering this period. In each, he said he was not outside Canada. I find these statements were false.

Did the Appellant make the false statements knowingly?

[52] Yes, the Appellant made the false statements knowingly.

[53] To determine if information was provided knowingly, I must decide if the Appellant subjectively knew that the statement was false or misleading. Common sense and objective factors should be taken into account when determining if a claimant had subjective knowledge that the information provided was false.^{Footnote 13}

[54] The Commission must prove that the Appellant made a statement that he knew was false or misleading.  The burden then shifts to the Appellant to explain why the false or misleading statements were made.^{Footnote 14}

[55] The Appellant was outside Canada while he was getting EI benefits. He says he didn’t know the rules of the EI program at the time. He also says someone showed him how to complete his bi-weekly reports and he just followed the same format.

[56] The Commission included copies of the Appellant’s claimant reports in its reconsideration file. One of the questions is, “[w]ere you outside Canada between Monday and Friday during the period of this report”. The Appellant responded that he wasn’t.

[57] In a letter attached to his request for reconsideration, the Appellant referred to his language barrier. He told the Commission he is still learning the English language, and this makes him unable to understand well.

[58] The Appellant testified that he came to Canada in 2011. He said he started working the same year at a meat plant but moved in 2014. He said that he attended adult high school in 2014 during the day and worked as a security guard after school. The Appellant studied math, English, physics and took computer classes.

[59] I have no reason to doubt that the Appellant may have trouble understanding some things in English. But I find he likely could understand the question in the bi-weekly reports asking if he was outside Canada.  I do so based on his testimony about the high school-level courses he took in 2014.

[60] I find the question asked in the bi-weekly report was simple. I find that it was likely not as complex as the language one might expect in high school math, physics or English. And even if he was following a template to answer the questions, I’m not satisfied he could do so without a basic understanding of what the questions asked.

[61] Based on the above, I find that subjectively, the Appellant knew that when he answered the questions if he was outside Canada, his answers were false. I find that this means that he made those false or misleading statements knowingly.

Did the Commission exercise its discretion in a judicial way when it imposed the penalty?

[62] Yes, the Commission exercised its discretion in a judicial way when it imposed a penalty in the form of a warning.

[63] The Commission’s decision to impose a penalty is discretionary. These discretionary decisions should not be disturbed unless the Commission did not act in good faith, having regard to all the relevant factors.^{Footnote 15}

[64] The Commission says it considered all pertinent circumstances when it considered assessing the penalty. It said considered the Appellant’s mitigating circumstances, including his distress and financial hardship. But the Commission says this didn’t affect the penalty since it issued a non-monetary penalty and no notice of violation.

[65] The Appellant referred to financial hardship in his notice of appeal. He testified about his financial situation at the hearing. When asked about the warning the Commission issued, the Appellant said that the warning is better than a monetary penalty. He added that he won’t make another mistake like this.

[66] I find no reason to disturb the Commission’s decision. It considered mitigating circumstances when it issued a warning. I find that the Commission properly issued the warning because the Appellant knowingly made false statements. I find the Commission exercised its discretion in a judicial way.

Does the Appellant have to repay the overpayment?

[67] Yes, the Appellant has to repay the overpayment. But it is less than the $3,039 in the notice of debt.

[68] A person who has received more EI benefits than they are entitled to has to repay the benefits without delay.^{Footnote 16}

[69] The Appellant testified that his financial obligations are more than he gets paid in a month. He said that if anything can be done to forgive the overpayment, he would never make the mistake he made again.

[70] The Appellant wasn’t entitled to EI benefits while outside Canada except for seven days because he was visiting his injured son.

[71] The Commission sent the Appellant a notice of debt for $4,039.  The Commission included a breakdown of the overpayment in its reconsideration file. The breakdown shows the $4,039 overpayment includes the seven days (five weekdays) that the Commission later decided the Appellant is entitled to benefits. So, I find the overpayment should be reduced. I ask the Commission to communicate the exact amount to the Appellant.

[72] I understand that the overpayment amount may still be a problem for the Appellant. I don’t have the authority concerning any write-off of the debt. The Appellant may want to formally ask the Commission if they will consider doing so. If not, he can call the Canada Revenue Agency to arrange payments that he can manage.

Conclusion

[73] The Appellant hasn’t shown that he was outside Canada for one of the reasons listed in the law for the period January 25, 2019, to March 20, 2019.

[74] The Commission acted judicially when it imposed a penalty in the form of a warning.

[75] The Appellant has shown that he was available for work within the meaning of the law.

[76] This means that the appeal is allowed in part.