Employment Insurance (EI)

Decision

[1] The appeal is dismissed.

[2] The Appellant hasn’t shown that she was available for work within the meaning of the Employment Insurance Act (Act) from September 28, 2020.

Overview

[3] The Appellant applied for regular benefits on October 2, 2020. She says that she stopped working at X on August 28, 2020. She says said that she was taking training full-time from September 8, 2020, to April 30, 2021, and was spending 25 hours or more per week on that training. She also says that her training was authorized by X through a skills or employment program.

[4] On January 12, 2022, the Canada Employment Insurance Commission (Commission) notified the Appellant that she wasn’t entitled to EI regular benefits from September 28, 2020, because she was taking training on her own initiative and wasn’t available for work.

[5] The Appellant appealed that decision to the Tribunal’s General Division.

[6] On October 28, 2021, the Tribunal’s General Division decided that the Commission didn’t exercise its discretion judicially in deciding to verify and reconsider the Appellant’s claim for benefits. So, the General Division decided that the Commission could not retroactively determine that the Appellant wasn’t entitled to benefits.

[7] The Commission appealed that decision to the Tribunal’s Appeal Division. It argued that the General Division made an error of law by interpreting that it was an issue of the power to reconsider under section 52 of the Act when the decision was made under section 153.161(2) of the Act. It also argues that the General Division didn’t consider the evidence on file when it said that the Commission didn’t ask the Appellant to prove her availability.

[8] On December 29, 2022, the Tribunal’s Appeal Division allowed the appeal and decided that the Commission had exercised its discretion judicially as set out in section 153.161 of the Act. The Appeal Division acknowledges that this section was adopted temporarily to allow the Commission to verify benefits it had already granted. But, it is returning the file to the General Division to determine whether the Appellant was taking authorized training and whether she was available for work from September 28, 2020.

[9] It was decided that the Commission properly exercised its discretion to carry out a verification. So, I have to decide only the Appellant’s availability.

[10] The Appellant has to be available for work to get EI regular benefits. Availability is an ongoing requirement. This means that she has to be searching for a job.

[11] The Appellant disagrees with the Commission’s decision. She explains that she sent a request to X so that she could receive Employment Insurance (EI) benefits while she was taking training. She says that she then applied for benefits and received them. But, X didn’t receive her request due to an email error. It wasn’t processed by X or approved by the Commission. The Appellant explains, however, that the program officer at X sent the Commission an email saying that her request would have been accepted if it had been received.

[12] I have to decide whether the Appellant was available for work within the meaning of the Act and whether she can receive EI benefits. The Appellant has to prove her availability on a balance of probabilities. This means that she has to show that it is more likely than not that she was available for work. But, given the circumstances surrounding her request for her training to be approved, I will first look at whether her training can be considered authorized.

Issues

[13] Can the Appellant’s training be considered authorized?

[14] Was the Appellant available for work from September 28, 2020?

Analysis

Can the Appellant’s training be considered authorized?

[15] A claimant who attends a training course without having been referred by a designated authority has to prove that they are capable of and available for work and unable to find a suitable job.

[16] But, a designated authority can refer a claimant so that they can receive benefits while they are taking training. The Commission has the power, with the approval of the Minister, to have agreements with other levels of government, or any private or public organization, to implement employment programs.

[17] The Commission has agreements with organizations in different Canadian provinces, including some Indigenous organizations that provide benefits and measures similar to EI benefits. The Commission has delegated the power to authorize training programs to designated authorities.

[18] When a designated authority authorizes a person to take training under an employment program, that authorization is sent to the Commission, which can approve the request and grant EI benefits while a person is taking training.

[19] In New Brunswick, the designated authority is X.^{Footnote 1}

[20] The Appellant said that she was studying full-time at X from September 8, 2020, to April 30, 2021, for a master’s degree in management.

[21] She explained that, before applying for benefits on October 2, 2020, she had duly completed a form to get her training authorized by X, a partner of skills and employment development programs.

[22] The Appellant knew what steps to take, since she had already benefited from this program a few years earlier.

[23] She emailed her form to the agent she was in contact with to get her training authorized, and she applied for EI benefits. X and the Commission didn’t contact her at that time, but she was paid benefits. The Appellant says that she thought her request had been approved since she was paid benefits.

[24] The Appellant applied for benefits when temporary measures were introduced because of the COVID-19 pandemic. This means that benefits were paid to her promptly after she sent her claim, but the Commission had the option of verifying her benefit period after that.

[25] On October 15, 2021, the Appellant told a Commission employee that her training hadn’t been authorized, but that she had received EI benefits. The Commission began verifying her benefit period.

[26] As the Appellant explained, she didn’t apply for benefits because of the COVID-19 pandemic, but rather because she wanted to get her training authorized.

[27] But, the facts show that X never received her request for authorization form because of an error in the email address that was used.

[28] An agent working for X sent the Appellant an email on November 16, 2021, telling her that her request wasn’t authorized because it wasn’t received at the time, but she confirmed that the Appellant was eligible for that program.

[29] When she checked the Appellant’s benefit period, the Commission’s employee asked her to provide documentation showing that her training had been authorized, and she told her that normally her file should be [translation] “in order.”

[30] But, since the request hadn’t been authorized, the Commission didn’t approve the training and sent the Appellant a letter asking her to repay the benefits she had received since September 28, 2020.

[31] Given these circumstances, and given that, as set out in section 25(2) of the Act, the Tribunal can’t hear an appeal about whether to refer a claimant to a training course, I have asked the Commission to provide reasons why the Appellant’s training wasn’t approved.^{Footnote 2} Although the Tribunal doesn’t have jurisdiction to decide whether training was authorized and approved, this decision is still relevant to determining whether the Appellant was available for work.

[32] The Commission argues that it can’t approve the Appellant’s training because no request was sent to it by a designated authority as provided for in the procedure. The Commission says that it can’t approve the training because it wasn’t authorized by a designated authority.

[33] It is true that, under the established process, a claimant’s training should not only be authorized by a partner agent of the Commission—it is the Commission that approves the training.

[34] It is also true that, generally, training isn’t authorized retroactively.

[35] In addition, the Tribunal’s Appeal Division found that the Commission properly exercised its power to verify under section 153.161 of the Act.

[36] So, I can’t intervene on this issue.^{Footnote 3} It is a combination of unfortunate circumstances for the Appellant, but during this period, because of the COVID-19 pandemic, temporary provisions were adopted. I understand that the Appellant didn’t apply for benefits because she stopped working as a result of the COVID-19 pandemic. But, this issue has already been decided and the Commission could verify the Appellant’s benefit period, since a temporary provision allowed it to do so during that period.

[37] As the Appellant did indeed understand, if this temporary provision hadn’t applied to her case, the Commission should have shown that it considered all relevant factors when making its decision.

[38] The Act is clear. Section 25(2) says that a decision of the Commission about the referral of a claimant isn’t subject to appeal. In this case, the Commission didn’t decide that issue because the process wasn’t completed. The Commission didn’t approve the Appellant’s training.

[39] Only the Commission can approve training while paying benefits. Since the Commission doesn’t agree to recognize the Appellant’s training during that period, the training can’t be considered authorized.

Was the Appellant available for work?

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

[41] First, the 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 give criteria that help explain what “reasonable and customary efforts” means.^{Footnote 5}

[42] Second, the Act says 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.”^{Footnote 7}

[43] In addition, the Federal Court of Appeal has already decided that claimants who are taking training full-time are presumed to be unavailable for work.^{Footnote 8} This is called “presumption of non-availability.” It means we can suppose that students aren’t available for work when the evidence shows that they are in school or taking training full-time.

[44] I will start by looking at whether the presumption of non-availability applies to the Appellant’s situation and whether I must find that she wasn’t available for work while studying full-time. If the presumption of non-availability doesn’t apply in the Appellant’s case, then I will look at the two sections of the Act dealing with availability.

Presuming full-time students aren’t available for work

[45] The presumption that students aren’t available for work applies only to full-time students.

The Appellant is a full-time student

[46] The Commission says that the training the Appellant was taking wasn’t authorized. It says that the Appellant was a full-time student and that she had to attend her classes from Monday to Thursday. The Commission argues that the presumption of non‑availability applies because attending her training was her priority during that period. It argues that the Appellant said that she would not have given up her training to work full-time and that she wasn’t available for work because she wasn’t looking for a full-time job.

[47] The Appellant says that she was studying full-time at X for a master’s in management from September 8, 2020, to April 30, 2021.

[48] She also told the Commission that she was spending more than 25 hours per week on her training. She even said that she spent about 45 hours per week on her training, including attending her classes and doing her work.

[49] I presume that the training the Appellant is taking makes her unavailable for work within the meaning of the Act.

[50] This presumption of non-availability can be rebutted based on four principles that relate specifically to returning-to-studies cases.^{Footnote 9}

[51] These principles are:^{Footnote 10}

• the attendance requirements of the course
• the claimant’s willingness to give up her studies to accept employment
• whether the claimant has a history of being employed at irregular hours
• The existence of “exceptional circumstances” that would enable the claimant to work while taking the course

[52] The Appellant is a full-time student. But the presumption that full-time students aren’t available for work can be rebutted (that is, shown to not apply). If the presumption were rebutted, it would not apply.

[53] There are two ways the Appellant can rebut the presumption. She can show that she has a history of working full-time while in school.^{Footnote 11} Or, she can show that there are exceptional circumstances in her case.^{Footnote 12}

[54] When she applied for benefits, the Appellant said that she was a full-time student and that she was spending more than 25 hours per week on her training.

[55] On October 15, 2021, the Appellant said that she hadn’t obtained authorization from a government-recognized employment program to take her training. She said that she was starting her last full-time term for her master’s, that she wasn’t looking for a job, and that she would not give up her training if offered a full-time job.^{Footnote 13}

[56] On November 17, 2021, the Appellant explained to a Commission employee that she had obtained authorization to take her training as of September 2020. She sent an email exchange showing that she would have been allowed to take her training under an employment program run by X if she had submitted her request within the deadline.

[57] On January 12, 2022, the Appellant said that she spent 45 hours per week on her studies, including attending her classes and doing her work. She said that her classes were from Monday to Thursday, on a schedule that varied.

[58] She also said that she has a history of working part-time while studying full-time. She confirmed that she wasn’t looking for a job because she was focusing on her studies full-time.

[59] Even though the Appellant took her courses during the pandemic and had the opportunity to take some courses remotely, she hasn’t shown that this circumstance allowed her to work full-time while taking her training. In other words, she hasn’t shown that this situation allowed her to be available for work. The Appellant has shown that she has a history of working part-time while studying full-time, and she stated that she didn’t intend to leave her training to accept a full-time job. During this period, her priority was to finish her training. In fact, the evidence shows that her intention was to get her training authorized so that she could receive benefits while she focused on her studies.

[60] To rebut the presumption of non-availability, I don’t have to assess the Appellant’s job search efforts. I have to decide whether these efforts are reasonable and customary only if the presumption of non-availability is rebutted. Nevertheless, even though she indicated at the hearing that she had made some efforts to find a job during that period, the statements she made to the Commission are different and instead show that the Appellant wasn’t actively looking for a full-time job during that period.

[61] On this point, the Tribunal’s Appeal Division has made several decisions indicating that it isn’t enough to wait until your employer calls you back to show that you are available for work. A full-time student who shows that they have a history of working part-time isn’t entitled to EI benefits.^{Footnote 14}

[62] While I understand that the Appellant says she is available for part-time work while studying full-time, that intention isn’t enough to rebut the presumption of non‑availability. It isn’t enough to say that you are available, since availability within the meaning of the Act is a question of fact.

[63] I am of the view that the Appellant has failed to rebut the presumption of non‑availability while studying full-time.

[64] The facts show that the Appellant was devoting 45 hours per week to her studies to attend her courses and do her work.

[65] And, the possibility of taking her courses remotely isn’t an exceptional circumstance that would have allowed her to work while taking her courses. The Appellant was busy with her courses and she didn’t intend to give up her training, which was her priority during that period.

[66] This means that the Appellant hasn’t shown that she has a history of working full‑time while in school.^{Footnote 15} Nor has she shown that there are exceptional circumstances in her case that would have allowed her to work full-time while studying full‑time.^{Footnote 16}

[67] The Appellant hasn’t rebutted the presumption that she was unavailable for work from September 28, 2020.

The presumption isn’t rebutted

[68] Since the presumption isn’t rebutted, it means that the Appellant isn’t presumed to be available. The Appellant is a full-time student and I find that she isn’t available for work as of September 28, 2020. The presumption of non-availability applies.

[69] In this case, since the presumption of availability isn’t rebutted, it isn’t relevant to look at the next criterion.

[70] The Appellant wasn’t available for work within the meaning of the Act from September 28, 2020.

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

[71] The Appellant testified that she was honest when she applied for benefits and I believe her good faith. While I understand her disappointment, I can’t make a favourable decision simply out of compassion. In order to maintain consistency in the Tribunal’s decisions and to ensure that the processes are fair and applied equally to all claimants, I must make this decision based on the established rules and case law of the Tribunal’s Appeal Division. As noted above, the Tribunal can’t intervene to change a decision the Commission made about whether or not to approve training while a claimant is receiving benefits. The Act says that only the Commission can decide whether to approve training.

[72] But, as I explained at the hearing, even though the Tribunal also doesn’t have jurisdiction to grant a request to write off an overpayment, the Appellant can ask the Commission to cancel the overpayment of benefits. To do this, the Claimant has to explain her reasons directly to the Commission, since only the Commission can make a decision about cancelling an overpayment. A payment arrangement can also be made with the Commission.

[73] Based on the criteria set out in the Act and case law, it is more likely than not that the Appellant wasn’t available for work while taking training full-time because, in her case, the presumption of non-availability isn’t rebutted.

Conclusion

[74] The Appellant hasn’t shown that she was available for work within the meaning of the Act from September 28, 2020.

[75] The appeal is dismissed.