Employment Insurance (EI)

Decision

[1] I am allowing A. D.’s appeal.

[2] The General Division made a legal error. I am remedying (fixing) that error by sending her case back to the General Division to reconsider, with directions to consider three issues.

[3] I would strongly encourage A. D. to choose an oral hearing (in-person, teleconference, or videoconference) at the General Division. This could help bring out information that’s relevant to the legal issues the General Division has to decide.

Overview

[4] A. D. is the Claimant. In March 2021, her employer reduced her hours and she applied for Employment Insurance (EI) regular benefits. This was during the COVID-19 pandemic.

[5] The Canada Employment Insurance Commission (Commission) paid her benefits in 2021 and 2022.

[6] Later, the Commission reviewed her claim. It decided she wasn’t entitled to benefits because she wasn’t available for work when she was in high school full-time. She was in Grade 9 from March to June 2021 and in Grade 10 from September 2021 to February 2022.

[7] The Commission upheld its decision at the reconsideration stage. So, the Claimant appealed to this Tribunal’s General Division. The General Division dismissed her appeal. It found she hadn’t rebutted the presumption full-time students aren’t available for work. And she didn’t show she was available for work under section 18(1)(a) of the Employment Insurance Act (EI Act), using the three Faucher factors.

[8] The Claimant now argues the General Division made a legal error and important factual errors. She says I should make the decision. She says she has proven she was available. And this means she wasn’t disentitled to benefits.

[9] The Commission says the General Division didn’t make an error. It asks me to dismiss the appeal.

Issues

[10] I will decide two issues.

• Did the General Division make a legal error by not clearly deciding what counted as suitable employment for the Claimant?
• If the General Division made that error, how should I fix it?

Analysis

[11] The Appeal Division’s role is different than the General Division’s role. The law allows me to step in and fix a General Division error when it used an unfair process, or made a legal error, a jurisdictional error, or an important factual error.^{Footnote 1}

The General Division made a legal error when it didn’t decide what counted as suitable employment for the Claimant

[12] Suitable employment is part of the legal test for availability under section 18(1)(a) EI Act. And it’s part of the Faucher test used to decide availability that section. The courts have also included it in the presumption of unavailability that applies to full-time students who aren’t referred for training or studies.

[13] This doesn’t mean suitable employment will always be an issue in an availability appeal. In other words, the General Division doesn’t always have to consider and decide what counts as suitable employment for a person.

[14] But it was an issue in this appeal. The parties’ evidence and arguments show me they disagreed about what counted as suitable employment for the Claimant.

[15] The Claimant argued suitable employment was part-time work. While the Commission said she should be looking for full-time work in order to show she was available. And it repeatedly asked her if she was willing to give up school to work full time.

[16] What work (in other words, job or type of job or employment) counts as suitable depends on the person’s circumstances. The EI Act and Employment Insurance Regulations (EI Regulations) give guidance about what type of work is and isn’t suitable.^{Footnote 2} These sections describe suitable work with reference to the person’s usual occupation before their EI claim, including the rate of pay, working conditions, and their personal circumstances. And they indicate suitable employment can change as a person’s period of unemployment goes on.^{Footnote 3}

[17] The Federal Court of Appeal recently highlighted that the EI scheme defines suitability with reference to the job the person had before their job loss.^{Footnote 4} And allowing students who meet exceptional circumstances to collect EI benefits is consistent with the EI scheme that requires them to pay EI premiums from their part-time wages.^{Footnote 5}

[18] The General Division didn’t make a finding about what counted as suitable employment for the Claimant. And it didn’t grapple squarely with this issue. It went back-and-forth between using part-time and full-time work in its legal analysis of the presumption of unavailability and of the Faucher factors.^{Footnote 6} The General Division seems to accept the Claimant qualified for benefits based on a history of working part-time on weekends. Yet it also seems to accept the Commission’s argument the Claimant needed to prove she was available for full-time work.

[19] This shows me the General Division made a legal error.

[20] It’s a legal error because the General Division’s reasons aren’t clear about suitable employment for the Claimant. In other words, they aren’t adequate. It’s also a legal error because the General Division didn’t make a finding about suitable employment for the Claimant. It had to make this finding to decide the Claimant’s availability under the EI Act—whether she overcame the presumption of unavailability and whether she was disentitled under section 18(1)(a).

Fixing the errors by sending the case back to the General Division

[21] Because I have found the General Division made an error, the law gives me powers to fix that error.^{Footnote 7}

[22] The Claimant asked me to make the decision the General Division should have made. Unfortunately for her, I don’t have the information I need to decide the legal issues raised by her appeal.

[23] I can’t reasonably decide what counts as suitable employment for the Claimant. There is little to no relevant evidence about the job she used to qualify for EI benefits. There is no record of employment, and her evidence about her hours and hourly wage is vague and conflicting. The Claimant continued (or went back) to work for her usual employer and her hours varied from week to week.

[24] It’s possible that the Claimant was working in suitable employment for weeks in her claim when she was in school. Legally, if she was working in suitable employment she would not have to show she was available for work but unable to find suitable employment under section 18(1)(a) of the EI Act.^{Footnote 8}

[25] There is also little to no evidence about her history of working while going to school full-time. This evidence is relevant to whether she can overcome the presumption that full-time students are unavailable for work.

[26] The General Division hearing was “in writing.” The General Division wrote to the Claimant and asked her questions. Some questions asked about her employment history and her history of working while going to school full-time.^{Footnote 9}

[27] The Claimant’s answers about her work hours and wage were vague. She mixed periods when she was in school and not in school. Or she wrote she no longer had information.

[28] Because the hearing process was in writing, the General Division and the Claimant didn’t clarify the evidence about these issues.

[29] I am sending the Claimant’s case back to the General Division to reconsider. I will also use my power to give directions to the General Division.

Directions to the General Division

[30] The General Division should consider and decide the following three issues:

• Has the Claimant shown she had an interruption in earnings? To establish a claim for benefits, the Claimant needed to show an interruption of earnings under sections 2(1) and 7(2)(a) of the EI Act and section 14(1) of the EI Regulations. The General Division file includes conflicting evidence about her earnings at the end of February and beginning of March 2021, around the time she applied for EI benefits.^{Footnote 10}
• What counted as suitable employment for the Claimant?
• Were there weeks during her claim when the Claimant was working in suitable employment. In other words, were there weeks when she didn’t have to prove she was available but unable to find suitable employment under section 18(1)(a) of the EI Act? The relevant weeks are March 1, 2021 to June 28, 2021, and September 7 to February 11, 2022.

[31] The General Division can consider and decide any other issue raised by the Claimant’s appeal of the Commission’s reconsideration decision.

Conclusion

[32] The General Division made a legal error. I am fixing that error by sending the case back to the General Division to reconsider, with directions.