Employment Insurance (EI)

Decision

[1] The appeal is dismissed. The Tribunal disagrees with the Appellant.

[2] The Appellant hasn’t shown that she was available for suitable employment while in her training course. This means that she can’t receive Employment Insurance (EI) benefits.

Overview

[3] The Appellant S. A. lost her employment in June 2022. Shortly thereafter, she underwent surgery and was approved to receive several weeks of EI sickness benefits while she recovered from that procedure.

[4] S. A. was approved to receive sickness benefits until August 27, 2022, and invited her to submit a new medical note if she required an extension of her sickness benefit entitlement.^{Footnote 1}

[5] S. A. confirmed at her hearing that she did not submit a new medical note and did not ask to have her sickness benefits extended at that time.

[6] On August 15, 2022, the Appellant began a full-time, year-long course in Business Management (the Training Course). The scheduled classes took place live, Monday through Friday, for five hours each day between 8 am to 1 pm. Attendance was mandatory.

[7] On September 12, 2022, the Appellant applied for regular benefits. When contacted by a Service Canada agent about her application, S. A. confirmed that it was her intention to work 25 – 30 hours per week in addition to her course work.

[8] At that time, S. A. also confirmed that she was limiting her weekly working hours to 25 or 30 hours a week at a fully remote job because she was in poor health. She described suffering from vertigo, migraines, brain fog and vision loss.^{Footnote 2} She made a personal determination based on her health that she would be unable to work in full time employment and was only capable of working between 25-30 hours per week.

[9] The Appellant explained that she did not want to work full-time while in her Training Course in case it aggravated her medical conditions. She also felt that remote work would better accommodate her medical limitations.

[10] The Canada Employment Insurance Commission (Commission) decided that S. A. was disentitled from receiving EI regular benefits as of the date that she began her Training Course because she wasn’t available for work while pursuing her studies.

[11] A claimant wanting to receive EI benefits has to be available for work to receive them. Availability is an ongoing requirement, and the Commission concluded that the Appellant was not available for two, separate reasons:

1. a) First, they concluded that she was not available for suitable work because she was taking a full-time training course, Monday to Friday.
2. b) Second, they concluded that S. A. had medical limitations that prevented her from being available to work.  

[12] After being advised by the Commission in January that they were denying her claim for these reasons, S. A. told the Commission that she had started feeling better in November 2022 and had begun at that time to look for full-time work (while still pursuing her Course) on afternoons and weekends.

[13] The Commission nonetheless maintained their position on Reconsideration, finding that she had only applied for 8 jobs in the 6 months since she lost her job, and had not (as of the date of the Reconsideration decision) applied to any jobs despite deciding that she was ready to work full time.

[14] S. A. disputes this denial of benefits. She argues that the fact that she initially could not work the same number and schedule of hours that she had worked in her previous job does not mean that she was not “available for work”.

[15] S. A. also says that it is inaccurate that she did not apply for any jobs from November 2022 onward.

[16] S. A. points out that she wanted to work, despite her longstanding health challenges, and did apply for jobs that she felt would suit both her Training Course schedule and her personal circumstances throughout her period of unemployment.  

[17] The Appellant says that she should not be penalized for making efforts to maximize her contribution to society. She says that she could have asked to continue to receive sickness benefits – her doctor offered to give her a medical note in August 2022 to support such an extension. However, she wanted to try to learn and work as much as she could to improve her chances of finding productive employment and so enrolled in the Training Course and tried to work as much as she was able.

[18] The Appellant says that this should favour her being entitled to EI benefits.

[19] I have to decide whether the Appellant has proven that she was available for work. The Appellant has to prove this 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 while she was in her Training Course.

Issue

[20] Was S. A. available for work while in her Training Course?

Analysis

[21] I find that S. A.’ was not available for work while taking her Training Course.

[22] Two different sections of the law 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.

[23] First, the Employment Insurance Act (Act) says that in order to be entitled to regular benefits, a worker has to be actively trying to find employment. The law says that these workers have to prove that they are making “reasonable and customary efforts” to find a suitable job.^{Footnote 3} The Employment Insurance Regulations (Regulations) give criteria that help explain what “reasonable and customary efforts” mean and what a ”suitable job” is.^{Footnote 4} I will look at those criteria below.

[24] Second, the Act also says that a claimant has to prove that they are capable of and available for work on any given working day for which they are seeking benefits, but unable to find a suitable job.^{Footnote 5}  The legislation says that “working days” are limited to Monday, Tuesday, Wednesday, Thursday and Friday.^{Footnote 6}

[25] Case law references three things a claimant has to prove to show that they are “available” for “suitable work” on during these statutorily defined “workdays”.^{Footnote 7} I will look at those factors below.

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

[27] A claimant can disprove this presumption, and submit evidence to establish that they can still work full-time which in school full-time. But the burden lies with them to show that they are, in fact, available for work despite their full courseload.

[28] I will start by looking at whether I can presume that S. A. wasn’t available for work. Then, I will look at whether she was available based on the two sections of the law on availability.

Presuming full-time students aren’t available for work

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

[30] On her application for benefits, S. A. indicated that the program was full-time, and involved attendance for five hours a day, every weekday, Monday through Friday.

[31] When questioned later about the Course during the Reconsideration process, the Commission’s file indicates that S. A. then described it as part-time and advised that the Course provider advertised it as such. However, when she applied for sickness benefits in February 2023, she again identified the Course as being full-time and occupying at least 25 hours per week.

[32] I find that S. A. was in her Training Course full-time.

[33] When S. A. first enrolled in the Training Course, she considered it to be full-time. She maintained that assessment 6 months into the program when she re-affirmed on her application for sickness benefits that she was in a full-time training program. I agree with this assessment: the lectures alone consumed 5 hours of every weekday, 5 days per week.

[34] So, the presumption of unavailability applies to the Appellant.  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 to S. A.’ circumstances.

[35] There are two ways the Appellant can rebut the presumption. She can show that she has a history of working full-time while also in school full-time.^{Footnote 9} Or, she can show that there are exceptional circumstances in her case.^{Footnote 10}

[36] The Commission says that S. A.’ told them that she did have a history of working full time (40 hours a week) while taking 12 hours a week of schooling. Their file notes indicate that the Appellant advised that she worked in that arrangement 10 years prior to this Training Course.

[37] I find that this does not amount to a history of working full-time while in school full-time. A 12 hour per week school schedule is not full-time. This educational history does not rebut the presumption.

[38] The Commission also submits that S. A. has not shown exceptional circumstances to rebut the presumption: she did not demonstrate that she was prepared to make whatever arrangements may be required to accept an equivalent job to that she held prior to her unemployment if it became available, nor did she prove that she was prepared to abandon the course if such a job became available.

[39] S. A.’ says that she was struggling immensely with debilitating health symptoms while in her Training Course. She says that these circumstances should weigh in her favour.

[40] I am not making any specific findings on the condition of S. A.’ health, as I have no medical evidence particularizing the nature and severity of the Appellant’s reported symptoms. I accept that she was struggling, but have no basis to assess the impact that her symptoms had on her ability to work. Regardless, though, poor health does not weigh in favour of a finding that despite being in school full time, S. A. would also – exceptionally – have been able to resume work at her pre-dismissal level.

[41] I find that neither the Appellant’s s work history nor her health status while taking the Training Course rebut the presumption that she was unavailable for work.

[42] The Federal Court of Appeal hasn’t yet told us how the presumption and the sections of the law dealing with availability relate to each other. Because this is unclear, I am going to continue on to decide the sections of the law dealing with availability, even though I have already found that the Appellant is presumed to be unavailable for employment on the basis that she was in school taking a full time Training Course.

Reasonable and customary efforts to find a job

Suitable job

[43] The first section of the law that I am going to consider says that claimants have to prove that their efforts to find a job were reasonable and customary.^{Footnote 11}

[44] The law sets out criteria for me to consider when deciding whether S. A.’ efforts to find a job while taking her Course were reasonable and customary.^{Footnote 12} I have to look at whether her efforts were sustained (in other words, ongoing and consistent) and whether they were directed toward finding a suitable job.

[45] In other words, the Appellant has to have kept trying to find a suitable job throughout the period that she was claiming regular benefits.

[46] The Act says that “suitable work” is work that is within a worker’s health and physical capabilities and that is compatible with their family and religious obligations and beliefs. Case law adds that suitable work is work that is in the claimant’s usual occupation (for example, same nature, earnings, and working hours and conditions) and in accordance with their previous work schedule.

[47] S. A.’s customary work before she was dismissed from her job was administrative in nature. Her Record of Employment lists her most recent job as a full-time Administrative Assistant, and the Commission notes that she told their representative that the jobs that she applied to while in her Training Course were likewise administrative assistant jobs that paid the same hourly rate as her prior job or more.

[48] So, I find that the Appellant’s usual occupation was as a full-time administrative assistant.

[49] I have no evidence to assess the Appellant’s “physical capabilities” beyond S. A.’ description of the impact that her poor health had on her. S. A. indicated that she initially chose to limit her job search to part-time hours based on her subjective concern about not overtaxing herself, not based on any formal medical directive.

[50] In the circumstances, I find that suitable work for S. A.’s would have been full-time employment as an administrative assistant or equivalent, between Monday and Friday.

The Appellant’s efforts to find a suitable job

[51] I also have to consider S. A.’s efforts to find such a job. The Regulations list nine job‑search activities I have to consider. Some examples of those are the following:^{Footnote 13}

• preparing a résumé or cover letter
• registering for job-search tools or with online job banks or employment agencies
• applying for jobs
• attending interviews
• doing competency tests

[52] The Commission says that the Appellant didn’t do enough to try to find a suitable job. It says that between August 2022 and November 2022, S. A. was mostly applying for part time positions and did not apply to enough of them.

[53] It also says that after November 2022, despite her statements to the Commission that at that point she became open to full time work and had been willing to quit her course if offered full time work, she did not apply to any jobs – full time or otherwise – until she received the January 2023 Reconsideration Decision that is the subject of this appeal.

[54] The Appellant disagrees. She maintains that the type and number of part-time jobs that she applied for were suitable given her circumstances.

[55] With respect to her medical “improvement” in November 2022, and the impact that this had on her willingness to abandon her Course and accept full-time work, S. A.’s clarified her evidence on this issue at her hearing. She testified that while she had indeed told the Commission agent that her headaches had improved in late October or early November, she nevertheless found herself suffering from significant depression during this period.

[56] She testified that “during that time I really didn’t want to do anything: I didn’t want to go to school, I didn’t want to work, I didn’t want to get up.”

[57] This is consistent with the post-hearing document that the Appellant submitted, which I accepted and provided to the Commission for review and comment. That demonstrates that S. A. applied for three jobs in the course of one singular week in November, and then did not apply to any more jobs for the remainder of the year.

[58] I find that the Appellant has not proven that her efforts to a suitable job were reasonable and customary.

1. a) To the extent that she applied to part-time jobs, those were not suitable work.
2. b) She has not demonstrated that her efforts to find suitable work were consistent, as there were weeks and month during which there is no evidence that she applied to any jobs at all, full time or otherwise.

Capable of and available for work

[59] I also have to consider whether the Appellant was capable of and available for work but unable to find a suitable job.^{Footnote 14} Case law sets out three factors for me to consider when deciding this. S. A. has to prove the following three things:^{Footnote 15}

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

[60] When I consider each of these factors, I have to look at the Appellant’s attitude and conduct.^{Footnote 16}

Wanting to go back to work

[61] The Commission says that the Appellant advised their agents on several occasions during the early months of her Course that she would not accept a job that would interfere with her course schedule. They say that this demonstrates that her true intentions were to focus on her Training Course over returning to full-time work.

[62] The Appellant disagrees and says that prior to November, she definitely did want to return to employment, but was limited in the number of hours that she could commit to due to her health status.

[63] After November, as I detailed above, the Appellant indicated that her mental health was such that she did not want to return to work.

[64] I appreciate the difficulties that S. A. was experiencing with her physical and mental health between August 2022 when she began the Course and February 6, 2023 when she re-applied for sickness benefits. I accept that she was distraught and struggling.

[65] However, her efforts and testimony also speak to the fact that, by her own admission, she did not want to return to full-time work, for a variety of reasons.   

[66] The Appellant hasn’t shown that she wanted to go back to work as soon as a suitable job (ie. a full time position in the field of office administration) was available.

Making efforts to find a suitable job

[67] The Commission says that the Appellant only applied to 8 positions over the course of 6 months and that this does not amount to reasonable efforts.

[68] As I discussed above, I find that suitable work for the Appellant would be employment as a full-time administrative assistant or equivalent.

[69] Prior to November 2022, S. A. applied predominantly for part-time work, and after November 2022 she did not make sufficient or consistent efforts to seek employment due to her mental health.

[70] S. A. hasn’t made enough effort to find a suitable job.

[71] 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 17}

Unduly limiting chances of going back to work

[72] The Appellant set personal conditions that might have unduly limited her chances of going back to work.

[73] S. A. says that she did set unreasonable or unduly limiting conditions on her job search. She says that limiting her search to administrative or office assistant jobs that were limited to part time hours on the afternoons, evenings and weekends was not overly restrictive.

[74] The Commission says that by only seeking jobs that would permit her to pursue her full time Course, the Appellant placed unreasonable restrictions on her chances of obtaining suitable work.

[75] I find that by taking a full-time Training Course, S. A. did unduly limit the chances of her returning to the first available suitable job. Case law establishes that a claimant needs to demonstrate availability during regular hours for every working day. They cannot restrict their search to irregular hours resulting from a training program schedule that significantly limits availability.^{Footnote 18}

– So, was S. A. capable of and available for work?

[76] Based on my findings on the three factors, I find that the Appellant has not shown that she was capable of and available for work but unable to find a suitable job. While I accept that S. A. was struggling with her physical and mental health, “the question of availability is an objective one - whether a claimant is sufficiently available for suitable employment to be entitled to unemployment insurance benefits - and it cannot depend on the particular reasons for the restrictions on availability, no matter [how sympathetic].”^{Footnote 19}

Conclusion

[77] The Appellant hasn’t shown that she was available for work within the meaning of the law. Because of this, I find that S. A. can’t receive EI benefits.

[78] This means that the appeal is dismissed.