Employment Insurance (EI)

Decision

[1] The appeal is dismissed. I disagree with the Appellant.

[2] The Appellant hasn’t shown that he was available for work. This means that he can’t receive Employment Insurance (EI) regular benefits starting January 6, 2021.

Overview

[3] The Canada Employment Insurance Commission (Commission) decided that the Appellant was disentitled from receiving Employment Insurance (EI) regular benefits as of January 6, 2021, because he wasn’t available for work. A claimant has to be available for work to get EI regular benefits. Availability is an ongoing requirement. This means that a claimant has to be searching for a job.

[4] I must decide whether the Appellant has proven that he was available for work. The Appellant has to prove this on a balance of probabilities. This means that he has to show that it is more likely than not that he was available for work.

[5] The Commission says that the Appellant wasn’t available because the Appellant attended a full-time course. The Commission argues that because he did so without approval from a designated authority, he must demonstrate his availability to regular benefits. In other words, he must meet the availability requirements like all other claimants requesting regular employment insurance benefits.

[6] The Appellant argues that he declared all his income and was available for work. He accepted all shifts offered to him. Attendance to his classes was not mandatory. The Appellant argues he never hid anything.

Matters I have to consider first

The Appeal was returned from the Appeal Division

[7] The Appellant first appealed to the General Division (GD) in February 2023. This was concerning a reconsideration decision dated January 26, 2023.

[8] The GD dismissed the appeal on July 12, 2023. It decided the Appellant had not proven his availability. In other words, the GD agreed with the Commission.

[9] The Appellant then made a request to the Appeal Division (AD). On January 23, 2024, the AD returned the matter to the GD for reconsideration.

[10] The AD decided that the GD based its decision on an important error of fact. The error of fact was regarding attendance requirements for classes. The Appellant had provided evidence in support of the classes being optional. The GD found that this was outweighed by his testimony during the hearing and the statements the Appellant had given the Commission.

[11] The AD decided the Appellant did not have a full opportunity to present evidence about how his studies affected his availability for work.

[12] I reviewed the January 23, 2024, decision by the AD. It does not mention that my decision is limited in scope. It does not mention that I must limit my decision to one Faucher factor.^{Footnote 1} For this reason, I find that the issue before me is a de novo hearing. In other words, I am looking at the evidence before me as an independent decision maker. I will consider all evidence and decide on all matters relating to availability.

[13] This decision is the result of the appeal being returned to the General Division.

I will accept documents sent in after the hearing

[14] During the hearing, I agreed to accept new documents. I accepted the new documents for the following reasons:

• The Appellant and representative spoke about the issues during the hearing. The documents support what they argued during the hearing.
• They are relevant to a legal issue I have to decide—whether the Appellant has proven availability while attending school full time.
• Some of the information responds to the Commission’s arguments.

[15] I have considered these documents when I made this decision.^{Footnote 2}

An interpreter was available during the hearing

[16] English is not the Appellant’s first language. For this reason, the Appellant had requested on his appeal form that an interpreter attend. At the start of the hearing, the Appellant communicated that he understands English. He added he may still want or need help from the interpreter on occasion. The interpreter remained with us for the hearing and was available.

[17] The bulk of the hearing proceeded without the assistance of the interpreter. I find that with the help of the interpreter, the Appellant was able to convey his message clearly and was able to understand my questions as well.

Issue

[18] Can the Commission review the Appellant’s availability retroactively?

[19] If yes, did the Commission act judicially when it reviewed the Appellant’s availability and established an overpayment?

[20] Was the Appellant available for work?

Analysis

Can the Commission review the Appellant’s availability retroactively?

[21] Yes. The law allows for the Commission to have done so in this case.

[22] This is under sections 153.161(1) and (2) of the Employment Insurance Act (EI Act). Under section 153.161(1). A claimant has to be available while taking a “course, program of instruction or a non-referred training.”

[23] Under 153.161(2), the Commission may, at any point after benefits are paid to a claimant, verify availability by requiring proof that they were capable of and available for work on any working day of their benefit period. This means the verification at any point after the payment of benefits.

[24] Section 151.161 of the EI Act applies to EI benefits starting September 27, 2020, until the week starting September 25, 2021. In the Appellant’s case, his claim started effective October 4, 2020.^{Footnote 3} Section 151.161 therefore applies to the Appellant.

[25] I find the law allowed the Commission to verify the Appellant’s entitlement to benefits when it did. This is based on the evidence before me.

Did the Commission act judicially when it reviewed the Appellant’s availability and established an overpayment?

[26] Section 52 of the EI Act also allows the Commission to reconsider a claim.^{Footnote 4} The Commission argued that the decision on availability was made under 153.161(2) of the EI Act. This should not be seen as a reconsideration decision under sections 52 or 112 of the EI Act.^{Footnote 5} It argues that the payment of benefits initially was not a decision. It merely postponed the determination to enable it to process claims more quickly.

[27] The Commission added that:

The only difference is that entitlement decision under subsection 153.161(2) of the EIA is made after benefits have been paid. In both cases, this decision is the Commission’s first decision on a claimant’s availability for work. This decision can then be reconsidered under section 52 of the EIA (EI Act) or be subject to a request for reconsideration pursuant to section 112 of the EIA.

[28] I am not persuaded by this. There are a few reasons.

[29] The first reason. Several recent Appeal Division decisions also reach the same conclusion as me today.^{Footnote 6}

[30] The second reason. While the Commission can go back and review the payment of benefits, it is discretionary. The law says it may. This means that it doesn’t have to do a review, but it can choose to do so if it wants. Both sections that allow the Commission to review a claim say it may review a claim, not that it must review a claim.

[31] What this means is that I can only interfere with (change) the Commission’s decision if it didn’t exercise its discretion properly when it made the decision.^{Footnote 7}

[32] For the Commission to have used its discretion judicially, it must not have done the following things when it made the decision to review the Appellant’s claim for benefits for the period from January 6, 2021, onwards:

• Acted in bad faith
• Acted for an improper purpose or motive
• Took into account an irrelevant factor
• Ignored a relevant factor
• Acted in a discriminatory manner.

[33] The Appellant and the representative said they do not feel the Commission acted in bad faith, acted for an improper motive or in a discriminatory manner. I see nothing in the file to suggest anything else. I find that these do not apply.

[34] Both the Appellant and representative argued that the Commission ignored the fact that the courses were optional.

[35] I am not persuaded by this. I find that the optional nature of the courses was first discussed with the Tribunal’s General Division. It was not something the Commission could have considered.

[36] I find that this is an issue before the General Division. I must consider this factor. I have to decide if this is evidence that I can find persuasive. I find that the Commission did not ignore a relevant factor. It also did not consider an irrelevant factor.

[37] The Appeal Division decision was reviewed as well. It did not raise any issues or mention anything wrong with the original General Division’s analysis regarding the Commission acting judicially.

[38] I therefore find the Commission’s decision to review the Appellant’s availability was done judicially.

[39] I will now consider the Appellant’s availability as of January 6, 2021.

Was the Appellant available for work as of January 6, 2021?

[40] Two different sections of the law require claimants to show that they are available for work. So, he has to meet the criteria of both sections to get benefits.

[41] First, the Employment Insurance Act (EI Act) says that a claimant has to prove that they are making “reasonable and customary efforts” to find a suitable job.^{Footnote 8} The Employment Insurance Regulations (Regulations) give criteria that help explain what “reasonable and customary efforts” mean.^{Footnote 9} I will look at those criteria below.

[42] Second, the EI Actsays 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 10} Case law gives three things a claimant has to prove to show that they are “available” in this sense.^{Footnote 11} I will look at those factors below.

[43] The Commission decided that the Appellant was disentitled from receiving benefits because he wasn’t available for work based on these two sections of the law.

[44] I will now consider these two sections myself to determine whether the Appellant was available for work.

Reasonable and customary efforts to find a job

[45] The law sets out criteria for me to consider when deciding whether the Appellant’s efforts were reasonable and customary.^{Footnote 12}

[46] The first section of the law that I am going to consider says that claimants have to prove their efforts to find a job are reasonable and customary. The Employment Insurance Act says a claimant has to prove that they are making “reasonable and customary efforts” to find a suitable job.^{Footnote 13} In other words, the Appellant has to have kept trying to find a suitable job.

[47] The Employment Insurance Regulations give criteria that help explain what “reasonable and customary efforts” mean.^{Footnote 14} The criteria are reproduced in part here:

• preparing a résumé or cover letter
• registering for job-search tools or with online job banks or employment agencies
• attending job-search workshops or job fairs
• networking
• contacting employers who may be hiring
• applying for jobs.

[48] I looked through the evidence in the appeal file. I did not see any requests from the Commission requiring the Appellant to prove he made reasonable and customary efforts to find a suitable job.

[49] I find a decision of the Appeal Division on disentitlements under section 50(8) of the EI Act to be persuasive.^{Footnote 15} The decision says the Commission can ask a claimant to prove that they have made reasonable and customary efforts to find a job. They can disentitle a claimant for failing to comply with this request. But they must ask the claimant to provide this proof and tell the claimant what kind of proof will satisfy their requirements.

[50] I did not see any evidence where the Commission asked the Appellant to prove his efforts were reasonable and customary. The Commission did not make any submissions on how the Appellant failed to prove that he was not making reasonable and customary efforts. The Commission only summarized what the legislation says regarding section 50(8) of the EI Act and section 9.001 of the EI Regulations.

[51] I find the Commission did not disentitle the Appellant under section 50(8) of the EI Act. This is based on the lack of evidence. Therefore, I do not need to consider that part of the law when reaching my decision on this issue.

Presumption of non-availability

[52] The first thing I will review is something that the Federal Court of Appeal has raised as something I must consider. This is that there is a presumption that full-time students are not available for work.^{Footnote 16} This Federal Court of Appeal decision is from 2010. It says that claimants who are full-time students are presumed not to be available for work in the first place.

[53] But this presumption can be “rebutted,” that is, found not to be applicable. This can be rebutted if the Appellant can show he had a history of working full-time while in school.^{Footnote 17} Alternatively, he can show that there were exceptional circumstances to his case.^{Footnote 18}

[54] I find the Appellant needs to rebut this presumption. This is because I find the Appellant was enrolled in a full-time course. I have nothing to support any other conclusion. The Appellant agrees he was a full-time student. The presumption therefore applies to him.

[55] The Appellant didn’t say anything to the Commission or during the hearing about ever having worked full-time while in school in the past.

[56] The Appellant argues that his classes were all recorded. He could attend them at any time. He could also have dropped courses if the schooling and work proved too much.

[57] The applicable case law was refined in 2023 in a decision called Page.^{Footnote 19} The Federal Court of Appeal decided in part that:^{Footnote 20}

[69] Fourth, a contextual analysis is required to ascertain whether the presumption is rebutted. Fact patterns where the presumption has been successfully rebutted include circumstances where the claimant indicated a willingness to give up their studies to accept employment or where a claimant has a history of being regularly employed while attending school and is searching for employment at hours similar to those formerly worked. One can imagine other considerations that might be relevant, such as the ability of a claimant to follow classes online at a time of their choice. (my emphasis)

[58] I find that the presumption is rebutted. I am placing a lot of weight on the Appellant’s testimony and submissions that he could attend courses at later times. I also place a lot of weight on his testimony that he could drop classes as well. I considered this testimony and the Page decision together.

[59] Times have changed since the presumption was first mentioned in Cyrenne. The ability to attend courses later is an important factor.

[60] Even if I find that the presumption is rebutted, I must still look at the Faucher factors. 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’m going to continue on to decide the section of the law dealing with availability. This is the case even though I have already found the Appellant to have rebutted the presumption.

Capable of and available for work

[61] Case law sets out three factors for me to consider when deciding whether the Appellant was capable of and available for work but unable to find a suitable job. The Appellant has to prove the following three things:^{Footnote 21}

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

[62] When I consider each of these factors, I have to look at the Appellant’s attitude and conduct.^{Footnote 22}

Wanting to go back to work

[63] The Appellant has shown that he wanted to go back to work as soon as a suitable job was available. I reviewed his job search.^{Footnote 23} It shows the Appellant applied for many jobs on December 8, 2020. It shows applications for both part time and full-time jobs.

[64] The Appellant testified that he wanted to work. He says he accepted every shift offered to him. He testified that he had the ability to listen to classes after the fact. He also could drop classes.

[65] Based on the Appellant’s post hearing evidence and his testimony during the hearing, I find the Appellant had the desire to go back to work.

Making efforts to find a suitable job.

[66] The Appellant hasn’t made enough effort to find a suitable job.

[67] 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 24}

[68] The Appellant was asked about his job search while in receipt of benefits. In response to this, the Appellant wanted to provide the ROE to support his work while in receipt of benefits. The Appellant was advised that I have no evidence to suggest he did not work there. In other words, the ROE would only support what is already known.

[69] The Appellant was asked to provide any information to support a job search from January 2021 to September 2021. The Appellant did provide submissions regarding this request. I now have evidence to support many jobs search efforts on one day. This would be many job applications submitted on December 8, 2020.

[70] The Appellant testified that he continued to search for work through the YMCA and handing in resumes in person. However, I have no dates regarding this. While I agree this is good, does it meet the requirements of an active job search?

[71] I find it does not. The courts have also said that the determinative factor in assessing availability is an active, serious, continual and intensive job search, demonstrated by a verifiable record of job application.^{Footnote 25}

[72] I am not persuaded by the argument that he continued to search for work via the YMCA. The Appellant collected benefits from January 2021 to September 2021 while attending a course. This is an eight-month period. I fail to see how being involved with one organization for all this time, would meet the criteria of an active, serious, continual and intensive job search.

[73] The Appellant was able to apply to about 35 jobs all in one day.^{Footnote 26}. The 35 applications were in large urban areas with many different employers. I find that if the Appellant was able to apply to 35 jobs in one day, there is a very high likelihood that for an eight-month period, there would be many more job opportunities.

[74] The Appellant testified that he also submitted applications in person. I am not persuaded by this. I find that this is not enough to prove an active job search. I find it more likely than not that the Appellant applied for many jobs on December 8, 2020, and secured a part-time job. I find that the lack of any job search efforts after December 8, 2020, when he had 35 in just one day shows a strong indication that he worked this part-time job, went to school and did not actively search for work.

[75] The training questionnaire was also reviewed. This was completed by the Appellant. It was his answers without any interpretations. In there, he says he only wanted part-time work. I find it more likely than not that once he secured this part-time work, he accepted it. His job search was then greatly reduced from 35 in one day to one without  a verifiable job search application after he secured this part-time job.

[76] The Appellant argued that he never refused any shifts and was available for all offered. I do not doubt the Appellant. The problem I see is that to receive regular benefits, there is an ongoing requirement to search for work. The Appellant acknowledged the rights and responsibilities for regular benefits.^{Footnote 27} The requirement to search for work was also mentioned in the training course questionnaire he completed in January 2021.^{Footnote 28}

[77] Those efforts weren’t enough to meet the requirements of this second factor because they are concentrated on one day prior to the start of the course.

Unduly limiting chances of going back to work.

[78] The Appellant didn’t set personal conditions that might have unduly limited his chances of going back to work.

[79] The Appellant says he hasn’t done this because he searched for work and would have accepted full-time work. His course schedule was not mandatory. He could have accepted any shifts offered. He had the option to listen to courses afterwards. He also could have abandoned a course that conflicted with his course.

[80] I believe the Appellant. I believe when he says that because of the pandemic, his courses were recorded and available later. I agree that this made his attendance to class very flexible. I believe the Appellant that during this time frame, January 2021 to September 2021, many post-secondary institutions offered online courses only and allowed students to listen to recordings later.

[81] The Commission says the Appellant was enrolled in a full-time course. He was only searching for work outside his course schedule. The Appellant’s primary interest has been to complete the course rather than being employed as soon as possible.

[82] I find that I am persuaded by this and the Appellant’s testimony under solemn affirmation. His answers were given without hesitation.

[83] I find that the Appellant persuaded me that he wanted to work more and did not place restrictions that might have limited his chances of securing employment. I am placing a lot of weight on the applications submitted on December 8, 2020. I note in there that some of them are for full-time jobs.

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

[84] Based on my findings on the three factors, I find that the Appellant hasn’t shown that he was capable of and available for work but unable to find a suitable job.

Conclusion

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

[86] This means that the appeal is dismissed.