Employment Insurance (EI)

Decision

[1] The appeal is dismissed. The Claimant is disentitled from receiving Employment Insurance (EI) regular benefits for the period from January 18, 2021, to April 30, 2021, and for the period from September 1, 2021, to January 14, 2022.

Overview

[2] The Respondent (Commission) decided that the Appellant (Claimant) is disentitled from receiving EI regular benefits for the period from January 18 to April 30, 2021, and for the period from September 1, 2021, to January 14, 2022, because he was not available for work while in school full-time. After his reconsideration request was denied, the Claimant appealed to the Tribunal’s General Division.

[3] The General Division found that the Claimant had not rebutted the presumption of non-availability for full-time students. It found that the Claimant had not shown a desire to go back to work and that he had not made enough efforts to find a suitable job. It found that the Claimant was setting personal conditions that limited his chances of going back by considering only jobs in the cultural field and by limiting the number of hours he wanted to work while in school.

[4] The Appeal Division gave the Claimant permission to appeal the General Division decision. The Claimant argues that the General Division made an error of law when it found that he was not available for work within the meaning of the law while in school full‑time.

[5] I have to decide whether the General Division made an error of law when it found that the Claimant was not available for work within the meaning of the law while in school full-time.

[6] I am dismissing the Claimant’s appeal.

Issue

[7] Did the General Division make an error of law when it found that the Claimant was not available for work within the meaning of the law while in school full‑time?

Preliminary remark

[8] In deciding this appeal, I listened to the recording of the General Division hearing held on November 9, 2023.

Analysis

Did the General Division make an error of law when it found that the Claimant was not available for work within the meaning of the law while in school full-time?

[9] The Claimant argues as follows:

• The General Division made an error when it found that his employment history was not enough to rebut the presumption of non-availability because he was part-time.
• The General Division confused the concept of “suitable employment” with that of “regular employment,” established by the case law to constitute a historical precedent for rebutting the presumption of non-availability for workers taking training full-time.
• The General Division made an error of law by considering the Claimant’s job search in its analysis of the presumption of non-availability.
• The General Division had to analyze the asynchronous nature of the training as an exceptional circumstance that could potentially rebut the presumption.
• The General Division made errors in its analysis of the Faucher criteria.
• The General Division made an error by failing to consider the Commission’s obligation to issue a warning establishing a disentitlement if it found the Claimant’s job search too unsupported or misdirected.

[10] The General Division correctly stated that there is a rebuttable presumption that a student enrolled in full-time studies is not available for work.

[11] The applicable law does not require a claimant to have a history of working full‑time while in school to rebut the presumption that, as a full-time student, they are not available for work under section 18(1)(a) of the Employment Insurance Act (Act). Instead, the law allows a claimant to rebut the presumption by proving exceptional circumstances.^{Footnote 1}

[12] In my view, the General Division made an error by not properly considering the Claimant’s past part-time jobs and demonstrated ability to maintain a long‑term part‑time job while simultaneously pursuing full-time studies. This is an exceptional circumstance sufficient to rebut the presumption of non-availability.^{Footnote 2}

[13] But rebutting the presumption means only that the Claimant is not presumed to be unavailable. The General Division still had to look at the requirements of the law and decide whether the Claimant was actually available.

[14] To be considered available for work, a claimant must show that they are capable of and available for work and unable to find a suitable job.^{Footnote 3}

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

1. a) the desire to return to work as soon as a suitable job is available
2. b) the expression of that desire through efforts to find a suitable job
3. c) not setting personal conditions that might unduly limit the chances of returning to the labour market^{Footnote 4}

[16] In addition, availability is determined for each working day in a benefit period for which the claimant can prove that, on that day, they were capable of and available for work and unable to obtain suitable employment.^{Footnote 5}

[17] The General Division found that the Claimant had not shown a desire to go back to work and that he had not made enough efforts to find a suitable job.

[18] The General Division found that, during the winter 2021 term, the Claimant waited until the very end of the university term before sending six applications for summer jobs (applications sent from April 19 to April 21, 2021, only). During the fall 2021 term, it considered that the Claimant had submitted only three applications, all submitted on the same day, October 15, 2021.

[19] The General Division found that the Claimant’s passive efforts to receive a newsletter and Indeed email alerts were not enough and that the law instead requires actual and sustained job search efforts.

[20] I see no error made by the General Division in its analysis of the first two Faucher criteria. The Claimant’s timing and limited job search show a lack of desire to find work as soon as a suitable job is available. It also shows that the Claimant wanted to give priority to his studies during the periods in dispute.

[21] The General Division also found that the Claimant set personal conditions that limited his chances of returning to the labour market because he only wanted to work in the cultural field.

[22] The Claimant says that he worked in the cultural field and qualified for benefits by working in this type of job in his qualifying period. So, this job is his suitable employment under the Act and Employment Insurance Regulations (Regulations) and according to case law, including Page, which says that “these definitions define suitability with reference to the position held by a claimant before their job loss.”^{Footnote 6}

[23] The facts in Page’s file are different from this case. Mr. Page worked for the same employer in the hotel business for several periods of extended employment while studying full-time.

[24] Based on the characteristics set out in the Act to describe what constitutes unsuitable employment, the General Division in Page determined that suitable employment includes employment of the same type (for example, nature of the work, earnings, and conditions of employment) as that of a claimant in their regular or usual occupation.^{Footnote 7}

[25] I find that the Claimant’s employment history shows that he had various types of jobs while in school. This includes a job at a coffee shop during his qualifying period.^{Footnote 8} It is clearly suitable employment for the Claimant within the meaning of the Act and Regulations.

[26] Before the General Division, the Claimant testified that he was looking for a job during the periods in dispute that were more related to the cultural field, which is his field of study, despite the devastating impact of the pandemic on that field.^{Footnote 9} He was not interested in returning to work at a fast-food restaurant.^{Footnote 10}

[27] The evidence supports the General Division’s conclusion and shows that, unlike Mr. Page, the Claimant set personal conditions that might unduly limit the chances of going back to work.^{Footnote 11}

[28] The Federal Court of Appeal in Page points out that it has made several decisions to the effect that full-time students were not entitled to EI benefits because they had restricted the type of job they were looking for.^{Footnote 12}

[29] So, I see no error made by the General Division in its analysis of the third Faucher test.

[30] I should add that, even if I had concluded that the Claimant did not set personal conditions by limiting his search to the cultural field, the evidence supports the General Division’s conclusion that the Claimant was not available for work within the meaning of the Act and Regulations because his job search was insufficient and sporadic.^{Footnote 13}

[31] Finally, the Claimant argues that the General Division made an error by not considering the Commission’s obligation to issue a warning before establishing a disentitlement if it found the Claimant’s job search too unsupported or misdirected.

[32] In an earlier decision involving the parties to this appeal, the Appeal Division decided that the Commission used its discretion judicially under section 153.161 of the Act when it decided to reconsider the Claimant’s claim.^{Footnote 14}

[33] In implementing this section during the pandemic, Parliament clearly wanted to insist on the Commission's power to verify whether a claimant attending a course, program of instruction, or training was entitled to EI benefits, even after benefits had been paid. It would be ignoring Parliament’s intention to decide that, in this exceptional context, the Claimant could receive benefits without a warning.

[34] The Federal Court of Appeal in Page reminded us that the Appeal Division can intervene in EI matters with respect to the General Division’s findings of fact only if the General Division based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it. Section 58(1)(c) of the Department of Employment and Social Development Act therefore gives the Appeal Division limited jurisdiction over findings of fact or of mixed fact and law made by the General Division.

[35] So, I do not have the power to reconsider the General Division’s findings of fact or of mixed fact and law because the General Division did not make them in a perverse or capricious manner or without regard for the material before it.

[36] For these reasons, I have no choice but to dismiss the Claimant’s appeal.

Conclusion

[37] The appeal is dismissed. The Claimant is disentitled from receiving EI regular benefits for the period from January 18, 2021, to April 30, 2021, and for the period from September 1, 2021, to January 14, 2022.