Employment Insurance (EI)

Decision

[1] Permission to appeal is refused. The appeal won’t go ahead.

Overview

[2] The Claimant, D. N., applied for Employment Insurance (EI) regular benefits.^{Footnote 1} In her application, she said that she was taking training from October 28, 2025, to November 4, 2026.^{Footnote 2} She was studying part time, for 25 hours or more per week. She started this program by choice. She was available for and capable of working under the same conditions as before she started her program. But she said that she would choose to complete her program if she were to get a full‑time job that conflicted with her program of studies.^{Footnote 3}

[3] The Canada Employment Insurance Commission (Commission) decided that it could not pay the Claimant EI benefits as of October 20, 2025, because she was taking a training course on her own initiative.^{Footnote 4} The Commission also said that she hadn’t shown that she was available for work.

[4] The Claimant asked the Commission to reconsider its decision.^{Footnote 5} She said that she was available, but that her situation was misinterpreted. The Commission upheld its decision.^{Footnote 6}

[5] The Claimant appealed the decision to the General Division.^{Footnote 7} She wanted to go ahead with her appeal to the General Division in writing. So, the General Division made a decision without holding a hearing, after the Claimant asked for it.^{Footnote 8} It dismissed her appeal. It found that she hadn’t shown that she was available for work while taking training.^{Footnote 9}

[6] The Claimant is now asking the Appeal Division for permission to appeal the General Division decision. I am refusing permission to appeal for the following reasons.

Preliminary matter

[7] When the Claimant applied for permission to appeal to the Appeal Division, she used the form intended for appeals to the General Division.^{Footnote 10} So, the Appeal Division sent her a letter asking her to specify what errors she thought the General Division had made.^{Footnote 11}

[8] The Claimant sent an email in response to this request. She said that the decision given was unfair and didn’t accurately reflect her situation.^{Footnote 12} She lost her job and not by choice. She actively looked for work throughout the entire period, but she wasn’t able to find any. An error was made when her file was analyzed, and her file had to be reconsidered.

Issue

[9] The issue is as follows:

1. a) Is there an arguable case that the General Division made an error that would allow the Appeal Division to intervene?

I am not giving the Claimant permission to appeal

The test for giving permission to appeal

[10] An appeal can only be heard on the merits if permission to appeal is given.^{Footnote 13}

[11] I can only give permission to appeal if the Claimant has an arguable ground on which she might succeed.^{Footnote 14} I have to refuse the application for permission to appeal if I am satisfied that the appeal has no reasonable chance of success.^{Footnote 15} A reasonable chance of success means that she could argue her case and possibly win.

[12] The appeal has to focus on one of the grounds of appeal set out in the law. So, I have to decide whether there is an arguable case that the General Division made one of the following errors:

• It breached the principles of procedural fairness.
• It made an error of jurisdiction.
• It made an error of law.
• It based its decision on an important error of fact.^{Footnote 16}

[13] So, I have to give permission to appeal if the General Division might have made one of these errors, and that error gave the Claimant’s appeal a reasonable chance of success.

The Claimant doesn’t allege any error relating to one of the grounds of appeal set out in the law

[14] In her application to the Appeal Division, the Claimant said that the General Division decision was unfair and didn’t accurately reflect her situation.^{Footnote 17} She argued that an error had been made, but she didn’t say what kind of error it was. I understand from her application to the Appeal Division that she simply disagrees with the outcome of the General Division decision.

[15] The Appeal Division can only intervene in a General Division decision if there is an arguable case that the General Division made an error set out in the Act. This is explained in the previous section of my decision.

[16] The Claimant is representing herself. So, I reviewed the file to find whether there was an arguable case that the General Division made one of the four errors that would allow the Appeal Division to intervene, and that would give her appeal a reasonable chance of success.^{Footnote 18} I found none.

[17] I reviewed the following things: the contents of the file before the General Division, the General Division decision, the application to the Appeal Division, and the Claimant’s explanatory emails.^{Footnote 19}

There is no arguable case that the General Division breached procedural fairness

[18] Procedural fairness essentially has two components: the right to be heard and the right to an impartial hearing and process.^{Footnote 20}

[19] There is no arguable case that the General Division didn’t allow the Claimant to be heard or that it didn’t act impartially.

[20] The Claimant chose to go ahead before the General Division in writing. The General Division respected this choice. This is consistent with the rules governing the formats of hearing of the Social Security Tribunal. In fact, the Social Security Tribunal Regulations, 2022, say that a Tribunal hearing has to be held in the format that the appellant asks for. This includes the written format.^{Footnote 21}

[21] Having read the General Division decision, I note that the General Division considered the Claimant’s position in its decision. Throughout its decision, the General Division referred to the different statements that the Claimant had made and that were on file.^{Footnote 22}

There is no arguable case that the General Division made an error of law

[22] The General Division set out the legal tests applicable to the Claimant’s case in a way that was consistent with the law and applicable case law. There is no arguable case that the General Division applied the wrong legal test or that it didn’t properly apply the applicable legal tests.

[23] The General Division said at the beginning of its analysis that it had to do the following: find whether the Claimant was capable of and available for work but unable to find a suitable job, under section 18(1)(a) of the Employment Insurance Act.^{Footnote 23} It also said that the legal test for determining availability for work had been developed in Faucher.^{Footnote 24}The General Division set out the three Faucher factors in a way that was consistent with what the decision says.^{Footnote 25}

[24] The General Division also cited a Federal Court of Appeal decision that says if you are taking training full time, you are presumed to be unavailable for work. But it also cited Page.^{Footnote 26} This decision says that this presumption can be rebutted if a claimant is willing to give up their studies to accept a job, or if they show that they regularly held a job while in school full time.^{Footnote 27} So, there is no arguable case that the General Division didn’t follow the binding decisions of the Federal Court of Appeal.

There is no arguable case that the General Division based its decision on an important error of fact

[25] An important error of fact happens when the General Division bases its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the evidence.^{Footnote 28}

There is no arguable case that the General Division made an important error of fact when it found that the Claimant was in school full time

[26] When analyzing whether the Claimant was available, the General Division first had to find whether she was in school full time. It had to find whether she was in school full time to see whether the presumption of non‑availability applied.^{Footnote 29} There is no arguable case that the General Division made findings of fact without regard for the evidence, or that it made findings of fact the evidence contradicts.

[27] The General Division weighed the evidence regarding the Claimant going to school. It noted that she had initially said the following in her application for benefits: She was participating in a training program of more than 25 hours to become a dental assistant, from October 28, 2025, to November 4, 2026.^{Footnote 30} This is, in fact, what she wrote in her application for benefits.^{Footnote 31} I note that she said in her application for benefits that her program was part time.^{Footnote 32} But, during her telephone interview with Service Canada, she said that she was in school full time.^{Footnote 33}

[28] The General Division also noted that the Claimant’s training took place from Monday through Friday, and that it started at 3 p.m. She sometimes had to study during the day.^{Footnote 34} The General Division based these facts on the statements she made during a telephone conversation with Service Canada. According to the notes of the call, she said that she was in school full time to become a dental assistant.^{Footnote 35} She had courses Monday through Friday, from 5 p.m. to 10 p.m. She added that sometimes she had courses for 8 hours a day, and that they started around 3 p.m. But she said that she normally had 5 hours of courses a day, and that she had to study on top of that. She also told Service Canada that she had to attend her courses in person because there were no virtual courses.

[29] The General Division noted that the Claimant later changed her statements about her school schedule. The General Division wrote that she later said she had courses from 6 p.m. to 10 p.m., Monday through Friday, and then from 6 p.m. to 9:30 p.m., Monday through Friday.^{Footnote 36}

[30] In addition, the General Division noted that the Commission had asked the Claimant to provide a copy of her course schedule.^{Footnote 37} Having read the file, I find that the Commission noted that she had contradicted herself regarding her training schedule. So, the Commission asked her to provide an official document confirming her training schedule.^{Footnote 38} She said that she agreed to do so. The Commission reminded her of its request two days later. It warned her that a negative decision would be given if she didn’t provide proof of her schedule.^{Footnote 39} She still didn’t send the Commission a copy of her training schedule. Even though she could have provided the General Division with her schedule as part of her appeal, she didn’t do so.

[31] The General Division weighed the evidence and found that the Claimant was in school full time. It preferred the statements that she initially made to those made after she was denied benefits.^{Footnote 40} It was possible for it to do so. The General Division could find that she was taking training full time because she said that her training was more than 25 hours per week, and that she had to attend at least 5 hours of courses per day. There is no arguable case that the evidence on file didn’t support the finding of fact that she was in school full time.

There is no arguable case that the General Division made an important error of fact when it decided that the Claimant hadn’t rebutted the presumption of non‑availability

[32] In Page, the Federal Court of Appeal said that a factual determination has to be made to analyze whether a claimant has rebutted the presumption of non‑availability.^{Footnote 41}

[33] The General Division found that the Claimant hadn’t rebutted the presumption of non‑availability.^{Footnote 42} In making this finding, it explained that she had repeatedly said that she wasn’t able to work while taking training, since it would be too much.^{Footnote 43} The evidence on file seems to support this finding. She had said that she could not work at all while she was in school, since it would be too much on top of the school work.^{Footnote 44} During another call held on the same day, she confirmed that she could not work because of her studies.^{Footnote 45}

[34] The General Division also noted that the Claimant had initially said that she hadn’t looked for a job since her training started.^{Footnote 46} She later said that she had looked for a job to a limited extent. There is no arguable case that the evidence on file doesn’t support this finding of fact. During her first telephone interview with the Commission, she said that she hadn’t looked for work at all since her course started.^{Footnote 47} She later said that she had applied to only two companies.^{Footnote 48}

[35] The General Division decided that the Claimant hadn’t rebutted the presumption of non‑availability. This was because it found that she wasn’t willing to give up her studies to accept a job. The General Division noted that she had said she was prepared to leave her program of studies if she were offered a full‑time job.^{Footnote 49} But the General Division found instead that she wasn’t actually willing to give up her program of studies for the following reasons: she had a scholarship to fund her studies; she considered that she had little time to work because of her training; and she made little effort to find a job.^{Footnote 50} The evidence on file supports this finding of fact. In her application for benefits, she said that she would complete her program of studies if she were offered a full‑time job that conflicted with her program.^{Footnote 51} She later confirmed during a telephone interview with Service Canada that she would not give up her program to work full time.^{Footnote 52} She also said that a $20,000 loan from the provincial government was funding her program of studies.^{Footnote 53} She would have to pay back that loan if she left her program. So, all this evidence supports the General Division’s finding of fact that she wasn’t actually willing to give up her studies.

[36] The General Division also noted that the Claimant said she had already taken training while working full time in the past.^{Footnote 54} But the General Division found that she hadn’t proven she had worked full time in the past while in school. It is the General Division that can weigh the evidence and decide how much weight to give to each piece of evidence. I can’t substitute my own assessment of the evidence for that of the General Division.^{Footnote 55}

[37] The General Division found that the Claimant hadn’t rebutted the presumption of non‑availability that applied to full‑time students. Because of this, she was presumed not to be available for work.

[38] The General Division then applied the three Faucher factors to the facts of the case. I can’t intervene when the General Division applies a well‑established legal test to specific facts.^{Footnote 56}

There is no arguable case that the General Division made an error of jurisdiction

[39] The General Division had to decide the appeal of a reconsideration decision regarding the Claimant not being available. It gave a decision on this issue. So, there is no arguable case that the General Division made an error of jurisdiction.

Conclusion

[40] Permission to appeal is refused. This means that the appeal won’t go ahead.