Employment Insurance (EI)

Decision

[1] The application is not late. Leave (permission) to appeal is refused. The appeal will not proceed.

Overview

[2] The Applicant (Claimant) left her job as a dietary aide due to childcare responsibilities during COVID-19. She received EI Emergency Response Benefits (EI ERB) until October 2020, when her claim changed automatically to EI regular benefits. On her biweekly claims, the Claimant declared that she was available for work. So, she was paid 50 weeks of regular benefits starting on October 4, 2020.

[3] The Respondent (Commission) later decided that the Claimant hadn’t been available for work from October 5, 2020, to September 6, 2021. It says her childcare responsibilities hadn’t allowed her to accept work. The Commission says the Claimant must repay over $24,000 in EI regular benefits.

[4] The Claimant argued that she couldn’t work during the COVID-19 lockdown because her daughter’s school was closed. She said she also had to care for her husband after his brain surgery and when he got COVID-19. The Commission maintained its initial decision. The Claimant appealed to the General Division.

[5] The General Division found that the Claimant did not show that she wanted to go back to work as soon as a suitable job was available. It found that the Claimant did not make any efforts to find suitable work. The General Division found that the Claimant set personal conditions that limited her chances of going back to work. It concluded that the Claimant is disentitled from receiving EI regular benefits from October 5, 2020, to September 6, 2021, since she wasn’t available for work.

[6] The Claimant now seeks leave to appeal of the General Division’s decision to the Appeal Division. The Claimant submits that the General Division based its decision on an erroneous finding of fact that it had made in a perverse or capricious manner or without regard for the material before it.

[7] I must decide whether there is some reviewable error of the General Division upon which the appeal might succeed.

[8] The application is not late. However, I am refusing leave to appeal because the Claimant’s appeal has no reasonable chance of success.

Issues

[9] Is the application late? If it is, do I grant the Claimant an extension of time?

[10] Does the Claimant raise some reviewable error of the General Division upon which the appeal might succeed?

Preliminary matters

[11] It is well established that the Appeal Division must consider the evidence presented to the General Division to decide the present leave to appeal application.^{Footnote 1} An appeal to the Appeal Division is not a new hearing where a party can re-present evidence to obtain a different result than that of the General Division.

Analysis

[12] Section of the Department of Employment and Social Development Act specifies the only grounds of appeal of a General Division decision. These reviewable errors are that:

1. 1. The General Division hearing process was not fair in some way.
2. 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. 3. The General Division based its decision on an important error of fact.
4. 4. The General Division made an error of law when making its decision.

[13] An application for leave to appeal is a preliminary step to a hearing on the merits. The Claimant must meet this initial hurdle, but it is lower than the one of the hearing of the appeal on the merits. At the leave to appeal stage, the Claimant does not have to prove her case but must establish that the appeal has a reasonable chance of success based on a reviewable error.

[14] In other words, I need to be satisfied that the reasons for appeal fall within any of the above-mentioned grounds of appeal and that at least one of the reasons has a reasonable chance of success in appeal, in order to grant leave.

Is the application for leave to appeal late?

[15] I find that the Claimant’s application was not late. She communicated by phone with the Tribunal and sent her application by mail within 30 days of the General Division decision.

Does the Claimant raise some reviewable error of the General Division upon which the appeal might succeed?

[16] The Claimant submits that she believes that there were errors in fact finding regarding her availability to work and the circumstances that affected her ability to fulfill the EI requirements. She believes the General Division might have overlooked crucial evidence that demonstrated her genuine efforts to be available for work despite facing challenging circumstances. She would like that the Appeal Division review her case to ensure a fair assessment of her eligibility for EI Benefits.

[17] To be eligible to receive benefits, claimants must prove that they are capable of and available for work—on any given workday—and are unable to find suitable employment.^{Footnote 2}

[18] Availability must be determined by reviewing three factors:

• the desire to return to the labour market as soon as a suitable job is offered;
• the expression of that desire through efforts to find a suitable job, and
• the non-setting of personal conditions that might unduly limit the chances of returning to the labour market.^{Footnote 3}

[19] Furthermore, availability is determined for each working day in a benefit period for which a claimant can prove that on that day they are capable of and available for work, and unable to obtain suitable employment.^{Footnote 4}

[20] The General Division found that the Claimant did not show that she wanted to go back to work as soon as a suitable job was available. It found that the Claimant did not make any efforts to find suitable work. The General Division found that the Claimant set personal conditions that limited her chances of going back to work. It concluded that the Claimant is disentitled from receiving EI regular benefits from October 5, 2020, to September 6, 2021, since she wasn’t available for work.

[21] I note that the Claimant declared on several occasions to the Commission that she could not work and that she stayed at home until September 2021 to take care of her daughter and husband.^{Footnote 5}

[22] In her application to appeal the reconsideration decision of the Commission to the General Division, the Claimant reiterated that she had no option but to stay home and take care of her sick husband and her seven-year-old daughter.^{Footnote 6}

[23] To be entitled to benefits, a claimant must establish their availability for work, and to do this, they must 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. A mere statement of availability is not enough for a claimant to discharge the burden of proof.

[24] The evidence supports the General Division’s conclusion that the Claimant did not show that she was available for work but unable to find a suitable job from October 5, 2020, to September 6, 2021.

[25] I see no reviewable error made by the General Division. The Claimant does not meet the relevant factors to determine availability. Although I understand the Claimant’s family situation, this does not eliminate the requirement to show availability within the meaning of the law.

[26] After reviewing the appeal file, the General Division decision, and the Claimant’s arguments, I find that the General Division considered the evidence before it and properly applied the Faucher factors in determining the Claimant’s availability.^{Footnote 7} I cannot find any failure by the General Division to observe a principle of natural justice. I have no choice but to find that the appeal has no reasonable chance of success.

Conclusion

[27] The application is not late. Leave (permission) to appeal is refused. The appeal will not proceed.