Employment Insurance (EI)

Decision

[1] Leave 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 disentitled from receiving Employment Insurance (EI) regular benefits from January 10, 2022, to June 24, 2022, because she wasn’t available for work. Upon reconsideration, the Commission maintained its initial decision. The Claimant appealed the reconsideration decision to the General Division.

[3] 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 enough efforts to find a suitable job. The General Division found that she limited her search for work based on her belief that the only jobs available were those involving food/grocery delivery. It concluded that the Claimant did not show that she was capable of, and available for work but unable to find a suitable job.

[4] The Claimant seeks leave to appeal of the General Division’s decision to the Appeal Division. She submits that the General Division made an error in not considering the effects of the COVID-19 pandemic as a whole and how it negatively affected the gaining of suitable employment.

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

[6] I am refusing leave to appeal because the Claimant’s appeal has no reasonable chance of success.

Issue

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

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 that:

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 leave 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 on 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. In other words, that there is arguably some reviewable error upon which the appeal might succeed.

[10] Therefore, before I can grant leave, 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.

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

[11] The Claimant seeks leave to appeal of the General Division’s decision to the Appeal Division.

[12] The Claimant submits that the General Division made an error in not considering the effects of the COVID-19 pandemic as a whole and how it negatively affected the gaining of suitable employment. She submits that her case needs a second look and consideration of the effects of the pandemic during the relevant period.

[13] To be considered available for work, a claimant must show that he is capable of, and available for work and unable to obtain suitable employment.^{Footnote 1}

[14] Availability must be determined by analyzing three factors:

1. (1) the desire to return to the labour market as soon as a suitable job is offered,
2. (2) the expression of that desire through efforts to find a suitable job, and
3. (3) not setting personal conditions that might unduly limit the chances of returning to the labour market.^{Footnote 2}

[15] Furthermore, availability is determined for each working day in a benefit period for which the claimant can prove that on that day they are capable of and available for work, and unable to obtain suitable employment.^{Footnote 3}

[16] The General Division found that the Claimant’s conduct and attitude, namely relying on a grocery delivery job to supplement EI payments, is that of someone who was waiting to return to her regular job. It found that the Claimant did not make enough efforts to find a suitable job. The General Division found that by applying for food/grocery delivery jobs only, the Claimant limited her chances of returning to work as soon as a suitable job was offered.

[17] The General Division based its findings on the Claimant’s statements that she did not feel a need to look for work because she had a job to go back to.^{Footnote 4} She also stated that she applied for delivery jobs that would allow her to supplement her EI benefits. The Claimant further acknowledged that she did not apply for jobs anywhere else.

[18] A claimant must establish their availability for work, and to do this, they must 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.

[19] Case law has established that a claimant cannot merely wait for their employer to call them to work and must look for employment to be entitled to benefits. It follows the position that no matter how little chance of success a claimant may feel a job search would have, the employment insurance program is designed so that only those who are genuinely unemployed and actively looking for work will receive benefits.^{Footnote 5}

[20] The pandemic did not change this requirement to obtain EI benefits.

[21] The evidence supports the General Division’s conclusion that the Claimant did not show that she was available for work within the mean of the law.

[22] 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

[23] Leave to appeal is refused. This means the appeal will not proceed.