EB v Canada Employment Insurance Commission

EB v Canada Employment Insurance Commission Collection Employment Insurance (EI) Decision date 2024-12-09 Neutral citation 2024 SST 1517 Reference number AD-24-502 Member Glenn Betteridge Division Appeal Division Decision Appeal allowed in part Featured decisions Yes Related decisions SST - EB v Canada Employment Insurance Commission - 2024 SST 1518 - 2024-07-02 - General Division Subjects Appeal Division - Error of law - Inadequate reasons Appeal Division - Error of law - Misinterpreting or not following legislation Appeal Division - Remedy EI - Availability for work - Suitable employment Summary: The Claimant’s summer job ended in August 2021. She made a claim for Employment Insurance regular benefits. The Canada Employment Insurance Commission (the Commission) paid her regular benefits. In September 2021, the Claimant started university full-time. The COVID-19 pandemic was disrupting many aspects of daily life, including the economy, work and education. Later, the Commission reconsidered her claim. It decided she wasn’t available for work when she was in school full-time. This meant she wasn’t entitled to the regular benefits it paid her for the weeks between August 15, 2021 and April 2, 2022. This created an overpayment that the Claimant had to repay. The Commission maintained its decision upon reconsideration. The Claimant appealed this decision to the General Division. The General Division dismissed the appeal. It decided the Claimant hadn’t shown she was available for work. It decided she didn’t overcome the presumption that full-time students aren’t available for work. It also decided she didn’t make reasonable and customary efforts to find a suitable job, under section 50(8) of the Employment Insurance Act. The Claimant appealed the General Division’s decision to the Appeal Division. The Appeal Division found that the General Division made a legal error when it didn’t decide what counted as suitable employment for the Claimant. It found that this was an error because the General Division’s reasons were insufficient and the General Division didn’t make a finding it had to make to decide the Claimant’s availability under the Employment Insurance Act, and whether the Claimant rebutted the presumption. The Appeal Division determined that the General Division also made a legal error when it didn’t consider whether the Claimant had found suitable employment. A person who is working in a suitable job doesn’t have to show they are actively looking and ready to take a job. In other words, they don’t have to prove they are available to be entitled to Employment Insurance regular benefits. The evidence in the Claimant’s appeal raised this issue. But the General Division didn’t consider it. The Appeal Division allowed the appeal in part and rendered the decision the General Division should have made. The Appeal Division determined what was suitable employment for the Claimant. It found that suitable employment was roughly 24 hours per week in general labour or retail at 15$ an hour. It found that the Claimant didn’t have to show she was available for work between February 6 to 19, 2022 when she worked in suitable employment, and she should not be disentitled to benefits during this period. The Appeal Division determined that the Claimant didn’t show that she was available for work during the other weeks the Commission paid her benefits. Decision Content Citation: EB v Canada Employment Insurance Commission, 2024 SST 1517 Social Security Tribunal of Canada Appeal Division Decision Appellant: E. B. Respondent: Canada Employment Insurance Commission Representative: Daniel McRoberts Decision under appeal: General Division decision dated July 2, 2024 (GE-24-1607) Tribunal member: Glenn Betteridge Type of hearing: Videoconference Hearing date: October 8, 2024 Hearing participants: Appellant Respondent’s representative Decision date: December 9, 2024 File number: AD-24-502 On this page Decision Overview Issues Analysis Conclusion Appendix A Decision [1] I am allowing E. B.’s appeal, in part. [2] The General Division made two errors. I have remedied (fixed) those errors by making the decision it should have made. [3] The Canada Employment Insurance Commission (Commission) conceded, and I accept, E. B. was working in suitable employment for two weeks (February 6 to 19, 2022). She didn’t have to show she was available for work and isn’t disentitled from getting benefits in those weeks. She is disentitled for all other weeks because she didn’t show she was available for work. Overview [4] E. B. is the Claimant. Her summer job ended in August 2021. She made a claim for Employment Insurance (EI) regular benefits. The Commission paid her regular benefits. [5] In September 2021, she started university full-time. The COVID-19 pandemic was disrupting many aspects of daily life, including the economy, work, and education. [6] Later, the Commission reconsidered her claim. It decided she wasn’t available for work when she was in school full-time. This meant she wasn’t entitled to the regular benefits it paid her for the weeks between August 15, 2021 and April 2, 2022. The Commission created an overpayment and debt the Claimant had to repay. [7] The Commission upheld its decision on reconsideration. The Claimant appealed to this Tribunal’s General Division. [8] The General Division dismissed her appeal. It decided she hadn’t shown she was available for work. It decided she didn’t overcome the presumption that full-time students aren’t available for work. It also decided she didn’t make reasonable and customary efforts to find a suitable job, under section 50(8) of the Employment Insurance Act (EI Act). Finally, it decided she hadn’t shown she was available for work and unable to obtain suitable employment, under section 18(1)(a) of the EI Act. Issues [9] I will decide four issues. Did the General Division make a legal error when it didn’t decide what counted as “suitable employment” for the Claimant? Did the General Division make a legal error when it decided the Claimant hadn’t shown she was available and unable to obtain a suitable job when she was working in February through April 2022? Should I fix the General Division’s error(s) by making the decision it should have made? Was the Claimant entitled to EI benefits because she was available for work and unable to obtain a suitable job under section 18(1)(a) of the EI Act? [10] To decide these issues, I read the Claimant’s application to appeal and the parties’ written arguments.Footnote 1 I read the General Division decision. I reviewed the documents in the General Division file.Footnote 2 I listened to the recording of the General Division hearing.Footnote 3 And I held an Appeal Division hearing. 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 4 What the law says about availability for work and what the General Division decided [12] Two sections of the EI Act say that to get regular benefits a person has to prove they are actively looking for suitable work on an ongoing basis. Section 18(1)(a) says the person has to show they are capable and available for work and unable to obtain suitable employment. Section 50(8) says the Commission can require a person to prove they are making reasonable and customary efforts to obtain suitable employment. [13] The courts have said that full-time students are presumed to be unavailable.Footnote 5 A full-time student can rebut (in other words, overcome) the presumption by showing exceptional circumstances. This includes a history of regularly working while attending school full-time.Footnote 6 The Tribunal has to do a contextual analysis of the facts to decide whether a full-time student has overcome this presumption of unavailability.Footnote 7 [14] The Claimant agreed she was a full-time student. The General Division accepted that. That isn’t an issue in this appeal. [15] The Commission disentitled the Claimant under both availability sections of the EI Act. The General Division agreed. [16] At the General Division, the Commission argued the Claimant failed to rebut the presumption of unavailability, for four reasons. One reason was that she didn’t look for suitable employment.Footnote 8 The General Division agreed the Claimant hadn’t overcome the presumption of unavailability. It found that she hadn’t shown exceptional circumstances. She didn’t have a history of working while attending school full-time and there was no other exceptional circumstance.Footnote 9 The General Division made a legal error when it didn’t decide what counted as suitable employment for the Claimant [17] Suitable employment is part of the legal tests for availability under sections 18(1)(a) and 50(8) of the EI Act. The phrase “suitable employment” appears in both. And it’s part of the Faucher factors under section 18(1)(a). The courts have also included it in the presumption of unavailability. [18] 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. [19] 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. [20] The Claimant argued suitable employment meant looking for opportunities in health care and health sciences, but largely avoiding low wage relatively unskilled jobs. The Commission argued the Claimant’s job search efforts weren’t directed towards suitable employment.Footnote 10 The Claimant looked for part-time jobs, and even volunteer opportunities. [21] They disagreed on another point. The Commission’s argument also shows me it was taking the position full-time employment was suitable employment.Footnote 11 The Claimant testified that she worked 24 or 25 hours a week (in other words, less than full-time) at the outdoor furniture store.Footnote 12 This job allowed her to qualify for benefits. [22] 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. [23] This was a legal error. It’s an error because the General Division’s reasons are insufficient. And it’s an error because the General Division didn’t make a finding it had to make to decide her availability under the EI Act, and whether the Claimant rebutted the presumption. The General Division made a legal error when it didn’t consider whether the Claimant had found suitable employment [24] A person who is working in a suitable job doesn’t have to show they are actively looking and ready to take a job. In other words, they don’t have to prove they are available to be entitled to EI regular benefits. The evidence in the Claimant’s appeal raised this issue. But the General Division consider it. [25] The Claimant moved home for January and February 2022.Footnote 13 Her classes were exclusively on-line because of COVID restrictions. She got a job as a pandemic support leader at a hospital near her home.Footnote 14 Her first day at work was February 7, 2022. Later, she returned to school. From March to the end of April or May 2022, she said she came home on weekends every other week to work.Footnote 15 She testified she worked 7 or 8 hour shifts, three days a week.Footnote 16 [26] So, the Claimant’s evidence was she worked 24 hours in some weeks in her claim. This is the same number of hours per week she worked in the outdoor furniture job she used to establish her claim.Footnote 17 [27] This evidence raises the legal issue of whether the Claimant was working in suitable employment. If she was, she didn’t have to show she was available for work. And she would not be disentitled to regular benefits for those weeks. (In these weeks, the Commission would have to allocate and deduct her earnings in each week. And calculate determine the benefits she was entitled to in a given week.) [28] The General Division didn’t consider this. This was a legal error. It flows from the legal error I identified above. It’s an example of why the General Division needs to clearly identify suitable employment in some availability cases. Fixing the errors by making the decision [29] Because I have found the General Division made an error, the law gives me powers to fix that error.Footnote 18 [30] The Claimant and the Commission agreed that I should make the decision the General Division should have made. I agree. [31] The parties had a full and fair opportunity to present evidence and make their arguments at the General Division. At the Appeal Division hearing, I gave each party a chance to summarize their positions on suitable employment and availability, based on the evidence at the General Division. And I gave them the chance to send post-hearing submissions about the legal issue at the heart of the second legal error I identified, above. Both parties sent submissions.Footnote 19 [32] To decide the appeal, I will decide three issues: What counts as suitable employment for the Claimant? Were there periods in her claim when the Claimant had suitable employment? (Meaning the Commission should not have disentitled her under the availability sections of the EI Act.) When she didn’t have suitable employment, has she shown she was available for work under section 18(1)(a) of the EI Act, using the Faucher factors? [33] I am not deciding every issue the General Division decided. I don’t have to. The Appeal Division process isn’t a de novo (meaning, new from the beginning) process. I have found and will correct the General Division’s errors to ensure the proper outcome based on the facts and law. I will consider only those issues I need to decide the Claimant’s entitlement to regular benefits. [34] I have to consider two periods—days and weeks. The law says I have to consider the Claimant’s availability for each working day (meaning Monday to Friday).Footnote 20 Claimants report hours and earnings for each week, employers for a two-week period. Where a person has earnings, the Commission has to allocate and deduct earnings on a weekly basis.Footnote 21 Suitable employment for the Claimant was roughly 24 hours per week in general labour or retail at $15 per hour [35] 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 22 [36] 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 23 [37] There was no evidence to show the Claimant regularly worked while attending school full-time. She qualified for EI benefits based on her work at the outdoor furniture store—her job immediately before she applied for EI. So, I will use her ROE from that job to describe what counts as suitable employment for her: approximately 24 hours per weekFootnote 24 general labourer, clerk, retailFootnote 25 $15 per hourFootnote 26 [38] The Claimant argued that suitable employment can’t be classified based on her summer job at the outdoor furniture store.Footnote 27 It should be based on her skill set. She should be able to switch, grow, and advance her knowledge and get EI benefits. Then she writes, “I should not be considered not looking for ‘suitable employment’ based on the fact that I was not looking specifically into the retail workforce.”Footnote 28 [39] I can’t accept this argument, for two reasons. First, it goes against what the law says, set out above. Second, EI isn’t bursary or subsidy program for students who aren’t referred to school or training by the Commission.Footnote 29 The Claimant wasn’t referred. EI is linked to past work and is for people who prove they are actively looking for suitable work and doing their best to return to work. The Claimant didn’t have to show she was available February 6 to 19, 2022—when she worked in suitable employment—and should not be disentitled [40] The Claimant didn’t have to prove she was available for work in any weeks when she worked in suitable employment. (I am considering weeks because she and her employer had to report her hours and earnings for weeks. And the Commission had to allocate and deduct earnings for weeks.) [41] The Commission argues her hospital job ROE shows she was working more hours during the first two weeks of her employment (from February 7 until February 18 or 19, 2022) compared to the weeks that followed.Footnote 30 This evidence shows she was in suitable employment from Monday, February 7 until Saturday, February 19, 2022. So, the Commission concedes she should not be disentitled during these two weeks. [42] The Claimant argues the full period she worked part-time at the hospital should entitle her to benefits because it was a suitable employment. She says she was taking classes, and the number of shifts she wasn’t within her control. [43] The Claimant earned approximately $22 per hour in her hospital job. She started on February 7, 2022. The Commission paid her EI regular benefits until April 2, 2022. I find she was in suitable employment for each two-week period when she worked an average of at least 24 hours per week. There was only one two-week period: February 6 to 19, 2022. The other two-week periods weren’t close 24 hours per week. See the table in Appendix A. [44] I prefer what the Claimant’s ROE says to her testimony that she worked three 7 to 8 hour shifts per week during this period. I have no reason to doubt what the employer wrote on the ROE. And the Claimant was trying to remember events that took place during the pandemic, years earlier. So, she may have been mistaken. The Claimant hasn’t shown she was available during other weeks the Commission paid her benefits [45] Availability is a question of fact. I have reviewed the evidence about the Claimant’s job search efforts, her personal restrictions, and her desire to return to the labour market. I have assessed her attitude and conduct. I have reviewed the General Division’s findings. I can follow those findings when they are supported by the evidence. [46] The Claimant has to prove she meets all three Faucher factors. Unfortunately for her, like the General Division, I find she doesn’t meet any. [47] The Claimant hasn’t shown she wanted to go back to work as soon as a suitable job was offered. She only applied for about five jobs between September 7, 2021 and April 2, 2022. She was also looking for volunteer positions aligned with her academic field and career goals. Overall, the evidence shows that school was her priority, not getting back to work in a suitable job. Although she took a job when offered, it counted as suitable for just two weeks. So, she should have continued to actively look for other work but didn’t do that. [48] The Claimant didn’t make enough efforts to find a suitable job. She focused her efforts on health and health-related jobs and building relationships and networking on campus.Footnote 31 She applied for unpaid volunteer opportunities. She focused on building her resume and academic trajectory towards getting into medical school. She didn’t do enough to search for suitable employment—about 24 hours per week in general labour or retail at about $15 per hour. [49] The Claimant set personal conditions that unduly restricted her return to the labour market. School was her priority. She wasn’t able to work 9 to 5 on weekdays.Footnote 32 She had lectures and labs that she had to attend in person—other than when pandemic restrictions forced classes on-line. And her availability was largely restricted to weekends, when she didn’t have classes and labs.Footnote 33 She would not give up school to take a job that conflicted. [50] So, the Claimant hasn’t shown she was available for work during the days in her claim when she had to show that. Conclusion [51] The General Division made two legal errors. I fixed those errors by making the decision it should have made. [52] I decided what counted as suitable employment for the Claimant. The Commission concedes, and I accepted, the Claimant was working in suitable employment from February 6 to 19, 2022. She didn’t have to show she was available and was not disentitled to benefits during these two weeks. This will likely reduce the amount of the Claimant’s overpayment and debt. [53] Otherwise, the Claimant hasn’t shown she was available in the weeks the Commission paid her EI regular benefits. This means she isn’t entitled to keep those benefits. Appendix A Week (EI week number, dates) ROE insurable hours box number Insurable hours worked (biweekly insurable earnings/$22 per hour) 2329 Feb-06 to Feb-12-22 15 25.5 2330 Feb-13 to Feb-19-22 2331 Feb-20 to Feb-26-22 14 9.2 2332 Feb-27 to Mar-05-22 2333 Mar-06 to Mar-12-22 13 15.1 2334 Mar-13 to Mar-19-22 2335 Mar-20 to Mar-26-22 12 6 2336 Mar-27 to Apr-02-22 Footnotes Footnote 1 See AD1 for the Claimant’s application. And see AD2 to AD6 for the parties’ submissions. Footnote 2 See GD2, GD3, GD4, and GD5. Footnote 3 The General Division hearing took a little over 1.5 hours. Footnote 4 Section 58(1) of the Department of Employment and Social Development Act (DESD Act) calls these the “grounds of appeal.” I have called these errors. Section 59(1) of the DESD Act gives the Appeal Division the power to fix General Division errors. Footnote 5 See Page v Canada (Attorney General), 2023 FCA 169 at paragraph 67. Footnote 6 See Page v Canada (Attorney General), 2023 FCA 169 at paragraph 68. Footnote 7 See Page v Canada (Attorney General), 2023 FCA 169 at paragraph 69. Footnote 8 See GD4-6. Footnote 9 See paragraphs 20 to 30 of the General Division decision. Footnote 10 See GD4-6. Footnote 11 See GD4. Footnote 12 Listen to the recording of the General Division hearing starting at 19:55. Footnote 13 Listen to the recording of the General Division hearing starting at 38:30. Footnote 14 See the Claimant’s record of employment at GD3-37. Footnote 15 Listen to the recording of the General Division hearing at 40:40. Footnote 16 Listen to the recording of the General Division hearing at 42:03. Footnote 17 This was her evidence. And her record of employment supports this. Footnote 18 See section 59(1) of the DESD Act. Footnote 19 See AD5 and AD6. Footnote 20 See section 32 of the Employment Insurance Regulations (EI Regulations). Footnote 21 See section 36 of the EI Regulations and section 19 of the EI Act. Footnote 22 See sections 6(4) and 6(5) of the EI Act. And see section 9.002 of EI Regulations. Footnote 23 See Canada (Attorney General) v Whiffen, A-1742-92 (FCA); and Page v Canada (Attorney General), 2023 FCA 169. Footnote 24 See her record of employment at GD3-24. Her first day worked and last day worked, which shows 10 weeks of work, and she worked 240 hours of insurable employment. Footnote 25 She was an inventory coordinator. Footnote 26 I added her total insurable earnings ($3,545) and vacation pay ($136). Then divided by insurable hours (240). Footnote 27 See AD6. Footnote 28 See AD6-2. Footnote 29 See section 25 of the EI Act. See also what the Federal Court of Appeal said in Page v Canada (Attorney General), 2023 FCA 169 at paragraphs 70 and 71. Footnote 30 See AD5-1. Footnote 31 Listen to the recording of the General Division hearing at 1:12:27. Footnote 32 Listen to the recording of the General Division hearing at 1:26:05. Footnote 33 Listen to the recording of the General Division hearing at 1:05:30. And see the Claimant’s responses to questions on her EI application at GD3-14 and GD3-15.