K. L. v. Canada Employment Insurance Commission

K. L. v. Canada Employment Insurance Commission Collection Employment Insurance (EI) Decision date 2014-06-17 Neutral citation 2014 SSTGDEI 55 Reference number GE-13-2125 Member Richard Sterne Division General Division Decision Appeal dismissed Decision Content On this page Persons in attendance Decision Introduction Form of hearing Issue The law Evidence Submissions Analysis Conclusion Persons in attendance The Claimant, K. L., and her witness, Mark Schuetzkowski, (Program Coordinator, Electrical Technician Program at Conestoga College) attended the in person hearing. Decision [1] The Tribunal finds that the Claimant was not available for work because she was not referred to her course of study by the Employment Insurance Commission (Commission) or an authority that the Commission had designated, pursuant to section 25 of the Employment Insurance Act (Act). [2] The Tribunal finds that the Claimant was not available for work because she was taking a course of study full time and only available part time, which limited her chances of finding suitable employment, pursuant to subsection 18(a) of the Act. [3] The appeal is dismissed Introduction [4] The Claimant was taking a three year Electrical Technician – Industrial, co-op diploma program that ran from September to the end of April each year. [5] On September 16, 2011, the Claimant applied for employment insurance benefits (EI benefits), while completing the third year of her program. She indicated that she was available for part time work. [6] On November 16, 2011, the Commission advised the Claimant that they were unable to pay her EI benefits as of August 29, 2011, because she was in a training program of her own initiative and had not proven her availability for work. Form of hearing [7] The hearing was in person for the reasons provided in the Notice of Hearing dated February 5, 2014. [8] On September 16, 2011, the Claimant had applied for EI benefits. [9] On November 16, 2011, the Commission advised the Claimant that they could not pay her EI benefits as of August 29, 2011, because they had determined that, as she was in a training course of her own initiative, she had not proven her availability for work. [10] On November 23, 2011, the Claimant appealed the Commission’s November 16, 2011 decision to the Board of Referees (Board). [11] On December 20, 2011, the Claimant’s appeal was originally heard, by a panel of the Board, who determined that her appeal should be adjourned and rescheduled to January 17, 2012, as the Board requested the Commission to do further fact finding as to whether or not the Claimant’s program, was a recognized apprenticeship program. [12] On January 5, 2012, the Board hearing scheduled for January 17, 2012 was adjourned as the Claimant was unable to attend, and was rescheduled to January 24, 2012. [13] On January 24, 2012, the Claimant consented to the hearing by a two member Board, who allowed her appeal. The Commission appealed that decision to the Office of the Umpire. [14] On December 4, 2012, the Umpire set aside the decision and referred the matter back to the Board for a rehearing. [15] On February 5, 2013, a differently constituted panel of the Board again determined that the appeal of the Claimant should be allowed. [16] On February 22, 2013, the Commission again appealed that decision to the Office of the Umpire. [17] The Commission’s appeal was transferred to the Appeal Division of the Social Security Tribunal, because the Office of the Umpire had not heard the appeal as of April 1, 2013. On November 8, 2013 the Appeal Division of the Social Security Tribunal granted the Commission’s appeal and referred the matter back to the General Division of the Tribunal for a rehearing. Issue [18] Was the Claimant capable and available for work while taking a program of study full time, pursuant to section 25 of the Act. [19] Was the Claimant available for work pursuant to subsection 18(a) of the Act? The law [20] Subsection 18(a) of the Act: A claimant is not entitled to be paid benefits for a working day in a benefit period for which the claimant falls to prove that on that day the claimant was (a) capable of and available for work and unable to obtain suitable employment; [21] Section 25 of the Act: (1) For the purposes of this Part, a claimant is unemployed and capable of and available for work during a period when the claimant is (a) attending a course or program of instruction or training at the claimant’s own expense, or under employment benefits or similar benefits that are the subject of an agreement under section 63, to which the Commission, or an authority that the Commission designates, has referred the claimant; or (b) participating in any other employment activity (i) for which assistance has been provided for the claimant under prescribed employment benefits or benefits that are the subject of an agreement under section 63 and are similar to the prescribed employment benefits, and (ii) to which the Commission, or an authority that the Commission designates, has referred the claimant. (c) A decision of the Commission about the referral of a claimant to a course, program or other employment activity mentioned in subsection (1) is not subject to review under section 112. Evidence [22] The Claimant was employed by Sanyo Canadian Machine Works (employer) from June 3, 2010 to August 26, 2011. On November 15, 2011, the employer confirmed that the reason for terminating the Claimant’s employment was the end of her co-op work term contract. [23] On September 16, 2011, the Claimant applied for EI benefits. The Claimant indicated that she was taking a three year Electrical Technician – Industrial, co-op diploma apprenticeship (CODA) program that ran from September to the end of April each year which included a sixteen month full time co-op work term from May 2010 to August 2011. She indicated that the course started on September 9, 2009 and ended on April 27, 2012. She also indicated that she was available for part time work, in particular Wednesday mornings and the weekends. [24] On November 16, 2011, the Commission advised the Claimant that they were unable to pay her EI benefits as of August 29, 2011, because she was in a training program of her own initiative and had not proven her availability for work. [25] On November 23, 2011, the Claimant filed an appeal of the Commission’s November 16, 2011 decision to the Board. The Claimant argued that she was enrolled in a ministry approved course. [26] On November 29, 2011, the Claimant advised the Commission that when she previously attended school she worked about thirteen hours per week. She said that she had secured a part time job as of October 15, 2011 with the Heritage Retirement Home as a dining room services attendant where she works about ten hours every two weeks. She was unable to confirm that she had received approval by a designated training authority to attend her course. [27] On January 4, 2012, the Ministry of Training and Universities (MTCU) confirmed to the Commission that the Claimant was not a registered second career client or supported by any of their programs. They confirmed that the program Electrical Technician - Industrial Co-op, is based on the co-op diploma model, however it is not an approved CODA program through MTCU. They stated that the college runs it like a CODA program, and as such apprentices are registered as apprentices to a consortium. The Claimant is therefore registered as an apprentice to a consortium, but she is not attending block apprenticeship schooling for apprenticeship. It is not a funded apprenticeship program which is required to be eligible for EI benefits. Submissions [28] The Claimant submitted that: a) she was enrolled in a ministry approved course. b) there is no reason she should be denied EI benefits. c) she is looking for a part time job. [29] The Respondent submitted that: a) the Claimant was attending her program on her own initiative as a fee payer. b) the course the Claimant is attending is not an officially approved apprenticeship program through MTCU. c) MTCU, who is a designated training authority, did not refer the Claimant to attend school while in receipt of EI benefits. d) the Claimant has restricted her availability for work to part time hours only (weekends and Wednesday morning) while her previous pattern of work was full time hours. Analysis [30] Subsection 18(a) of the Act states that a claimant is not entitled to be paid benefits for a working day in a benefit period for which the claimant fails to prove that he was capable and available for work. [31] Section 25 of the Act states that a claimant is unemployed and capable of and available for work during a period when the claimant is attending a course or program of instruction or training at the claimant’s own expense, or under employment benefits, that is the subject of an agreement under section 63, to which the Commission, or an authority that the Commission designates, has referred the claimant. [32] The Claimant was taking at Conestoga College, a three year Electrical Technician Industrial, co-op diploma apprenticeship (CODA) program that ran from September to the end of April each year which included a sixteen month full time co-op work term from May 2010 to August 2011. The Claimant did not provide any evidence that she had been referred to take this course by MTCU. [33] On January 4, 2012, the MTCU confirmed that the program Electrical Technician Industrial co-op program, was based on the co-op diploma model; however it was not an approved CODA program through MTCU. The MTCU confirmed that the Claimant was not a registered second career client or supported by any of their programs. [34] The Tribunal finds that the Claimant was not unemployed, and capable of and available for work, while the Claimant was attending a program of instruction or training at her own expense, that was the subject of an agreement under section 63, to which the Commission, or an authority that the Commission designated, had referred the Claimant, pursuant to section 25 of the Act. [35] Previous case law has confirmed that in order to prove availability, a claimant must show that he/she: 1. has a desire to return to the labour market as soon as suitable employment is offered; 2. must express that desire through efforts to find a suitable employment; and 3. must not set personal conditions that might unduly limit their chances of returning to the labour market. (Faucher A-56-96). [36] The Claimant was enrolled in a course of study on a full time basis. She was completing a three year diploma course which had included an eighteen month co-op full time work term. She stated that she was available for work on a part time basis on weekends and Wednesday mornings. She indicated that she was not prepared to leave her course in order to accept full time employment. [37] The Tribunal finds that the Claimant was not available to return to the labour market as soon as suitable employment was offered, because she would not drop her studies to return to full time employment. [38] The Tribunal finds that the Claimant was not making efforts to find suitable full time employment, because she was enrolled in her course on a full time basis. [39] The Tribunal finds that the Claimant had set personal conditions by only being available on a part time basis (weekends and Wednesday mornings), which would limit her chances of finding employment. She had previously been working full time and not part time. [40] The Tribunal finds that the Claimant was not capable and available for work, and therefore she is not entitled to EI benefits, pursuant to subsection 18(a) of the Act. [41] The Federal Court of Appeal confirmed the principle that a person enrolled in a course of full-time study is presumed to be not available for work, and that this presumption is refutable only in exceptional circumstances. Canada (AG) v. Lamonde, 2006 FCA 44 Canada (AG) v. Gagnon, 2005 FCA 321. Conclusion [42] The appeal is dismissed.