Employment Insurance (EI)

Decision

[1] I am dismissing S. C.’s appeal.

[2] To get Employment Insurance (EI) sickness benefits a person has to show that if it wasn’t for their sickness, they would be available for work.^{Footnote 1} In other words, their sickness has to be the only thing stopping them from being available for work.

[3] S. C. hasn’t proven that if it weren’t for her sickness, she would have been available for work from September 27 to October 7, 2022.

[4] This means the Canada Employment Insurance Commission (Commission) can’t pay her EI regular benefits for that time.

Overview

[5] S. C. (the Appellant) lives in Grande Prairie, Alberta. She stopped work in late September 2022.

[6] She applied for EI regular benefits. But later changed her application to EI sickness benefits.

[7] Sadly her fiancé’s father passed away shortly after she applied for EI benefits. The Appellant travelled with her fiancé to Cape Breton, Nova Scotia, to attend the funeral.

[8] The Commission looked at the Appellant’s situation. It decided she was absent from her home area—and unavailable for work—from September 27 to October 7, 2022. So it didn’t pay her EI benefits for that time.

[9] The Appellant doesn’t think the Commission’s decision is fair.

Issue

[10] I have to decide whether the Appellant has proven she was available for work from September 27 to October 7, 2022.

The law about sickness benefits and availability

[11] To get EI sickness benefits a person has to show that if it weren’t for their sickness, they would be available for work.^{Footnote 2} In other words, if they weren’t sick, they would be able to search for and take a suitable job on an ongoing basis.

[12] There are two sections of the EI Act that say a person who wants to get EI benefits has to show they are available for work.

[13] One section says that to prove they are capable of and available for work but can’t find a suitable job, a person has to show three things.^{Footnote 3} (I will list and consider these below.)

[14] The Commission didn’t use the other availability section of the EI Act when it denied the Appellant sickness benefits.^{Footnote 4} So I don’t have to consider that section when I make my decision.

Capable of and available for work

[15] The law says the Appellant has to show she was capable of and available for work but unable to find a suitable job.^{Footnote 5} A court decision sets out the three factors she has to prove: ^{Footnote 6}

• She wanted to go back to work as soon as a suitable job was available.
• She made efforts to find a suitable job.
• She didn’t set personal conditions that might unduly (in other words, overly) limit her chances of going back to work.

[16] She has to prove each factor on a balance of probabilities. In other words, she has to show it’s more likely than not.

[17] When I consider each of these factors, I have to look at the Appellant’s attitude and conduct.^{Footnote 7}

[18] And I have to consider whether the Appellant has proven her availability for each working day in a benefit period.^{Footnote 8}

[19] Several appeal decisions have found that a person who is away from home isn’t eligible for EI benefits during the days they were away.^{Footnote 9} These decisions say a person has to be in the area where they live so they can pursue suitable job opportunities. However, a person might be eligible if they can show they were job searching or made arrangements to allow them to look for and accept jobs, during the time they were away.^{Footnote 10}

The Appellant hasn’t shown she was available

[20] It is up to the Appellant to prove that if she hadn’t been sick, she would have been available from September 27 to October 7, 2022.^{Footnote 11} I find she hasn’t done that.

[21] I find that the evidence shows she wasn’t available to work during this period. It shows she was in Cape Breton with family for a funeral and wasn’t looking for work.

[22] Normally I would consider each of the three availability factors, one after the other.

[23] But in this appeal, I will deal with them together because I find the Appellant hasn’t given the Tribunal any evidence that might show she was available for work. And there is no other evidence in the appeal file that shows that.

[24] In her appeal notice, the Appellant didn’t give any evidence or reasons that challenge the Commission’s availability decision.^{Footnote 12}

[25] At the hearing she testified she wasn’t looking for work when she was in Cape Breton for the funeral. She said that a Commission agent told her she could get seven days of emergency leave, or something like that. The agent also said the Commission could waive the two-week waiting period for benefits.

[26] I accept her testimony. It is consistent with what she told the Commission about her absence, and not looking for work when in Cape Breton.^{Footnote 13} I have no reason to doubt her testimony, or what she said to the Commission. There is no evidence that goes against it.

[27] I also accept that she was away from her home area, attending her finance’s father’s funeral, from September 27 to October 7, 2022. There is no evidence that goes against this. And I have no reason to doubt she was in Cape Breton at this time.

[28] At the hearing I gave her representative an opportunity to make submissions. But she didn’t.

[29] Finally, the tribunal decisions I cited above support my decision in this appeal.

[30] Unfortunately for the Appellant, I have to follow the EI Act when I make my decision.^{Footnote 14} I have no power to make my decision based on principles of fairness, equity, or compassion.

Conclusion

[31] The Appellant hasn’t proven she was available for work from September 27 to October 7, 2022.

[32] This means she isn’t eligible to get EI sickness benefits from the Commission for this period.

[33] So I am dismissing her appeal.