KE v Canada Employment Insurance Commission

KE v Canada Employment Insurance Commission Collection Employment Insurance (EI) Decision date 2024-06-05 Neutral citation 2024 SST 655 Reference number GE-24-1649 Member Josée Langlois Division General Division Decision Appeal allowed in part Related decisions SST - KE v Canada Employment Insurance Commission - 2023 SST 2033 - 2023-11-23 - General Division SST - KE v Canada Employment Insurance Commission - 2024 SST 407 - 2024-04-19 - Appeal Division Subjects EI - Availability for work - Capable of and available for work EI - Benefit period - Backdating (antedating) initial claim Decision Content [TRANSLATION] Citation: KE v Canada Employment Insurance Commission, 2024 SST 655 Social Security Tribunal of Canada General Division – Employment Insurance Section Decision Appellant: K. E. Representative: J. N. Respondent: Canada Employment Insurance Commission Decision under appeal: Canada Employment Insurance Commission reconsideration decision (599445) dated July 25, 2023 (issued by Service Canada) Tribunal member: Josée Langlois Type of hearing: In writing Decision date: June 5, 2024 File number: GE-24-1649 On this page Decision Overview Issue I have to determine first Issues Analysis Analysis Conclusion Decision [1] The appeal is allowed in part. [2] The Appellant has shown that she had good cause for the delay in submitting her claimant report. In other words, the Appellant has given an explanation that the Employment Insurance Act (Act) accepts. [3] In addition, the Appellant has shown that she was available for work from December 22, 2022, to January 8, 2023. Overview [4] In general, to receive Employment Insurance (EI) benefits, you have to make a claim for each week that you didn’t work and want to receive benefits.Footnote 1 You make claims by submitting reports to the Canada Employment Insurance Commission (Commission) every two weeks. Usually, you make your claims online. There are deadlines for making claims.Footnote 2 [5] The Appellant applied for benefits on December 8, 2022. On February 7, 2023, she tried to submit her claimant report for the period from December 4, 2022, to December 17, 2022, but was unsuccessful because the deadline had passed. [6] According to the Commission’s file, on February 8, 2023, the Appellant asked the Commission to consider her claimant report as having been submitted on December 4, 2022. [7] For this to happen, the Appellant has to prove that she had good cause for the delay in submitting her claimant reports for the period from December 4, 2022, to December 17, 2022. [8] On January 10, 2024, the Commission decided that the Appellant wasn’t entitled to benefits from December 5, 2022, to January 27, 2023, because she hadn’t shown good cause for the delay in submitting her claimant report by the deadline. [9] In addition, the Commission said that the Appellant wasn’t entitled to benefits from December 5, 2022, because she had a restricted work permit that allowed her to work only for the employer X. For this reason, the Commission decided that the Appellant wasn’t available for work as of December 5, 2022. [10] The Appellant has to be available for work to get EI regular benefits. Availability is an ongoing requirement. This means that the Appellant has to be searching for a job. [11] The Appellant disagrees with the Commission. On August 23, 2023, she filed a notice of appeal with the Tribunal. On November 23, 2023, the General Division found that the Appellant didn’t have good cause for the delay in submitting her claimant report. It also found that the Appellant wasn’t available for work from December 5, 2022. [12] The Appellant appealed this decision to the Tribunal’s Appeal Division. She then said that she had stopped working on December 22, 2022, and she wondered why the Commission didn’t inform the Tribunal of the Record of Employment that showed this. Before the Appeal Division, the Commission argued that the General Division had made errors and asked the Appeal Division to allow the Appellant’s appeal. [13] On April 19, 2024, the Appeal Division found that the file presented to the General Division was incomplete and returned it to the General Division for reconsideration. [14] I have to decide whether the Appellant had a reasonable explanation for the delay in submitting her claimant report by the deadline. I also have to determine whether the Appellant was available for work. The Appellant has to prove this on a balance of probabilities. This means that she has to show that it is more likely than not that she was available for work. Issue I have to determine first [15] The Appellant asked for a hearing in writing. However, as suggested by the Appeal Division, the hearing was initially scheduled by teleconference to allow the Appellant to give oral explanations. The Appellant told the Tribunal that this wasn’t the form of hearing she had chosen. Since the Appellant doesn’t wish to participate in a teleconference hearing, her request for a hearing in writing is granted. Issues [16] Does the Appellant have a reasonable explanation for the delay in submitting her claimant report for the period from December 4, 2022, to December 17, 2022? [17] Was the Appellant available for work from December 5, 2022? Analysis [18] The Appellant wants her claim for EI benefits to be treated as though it was made on time. [19] To get a claimant report antedated (or, backdated), the Appellant has to prove that she had good cause for the delay during the entire period of the delay.Footnote 3 The Appellant has to prove this on a balance of probabilities. This means that she has to show that it is more likely than not that she had good cause for the delay. [20] And, to show good cause, the Appellant has to prove that she acted as a reasonable and prudent person would have acted in similar circumstances.Footnote 4 In other words, she has to show that she acted reasonably and carefully just as anyone else would have if they were in a similar situation. [21] The Appellant also has to show that she took reasonably prompt steps to understand her entitlement to benefits and obligations under the Act.Footnote 5 This means that the Appellant has to show that she tried to learn about her rights and responsibilities as soon as possible and as best she could. If the Appellant didn’t take these steps, then she must show that there were exceptional circumstances that explain why she didn’t do so.Footnote 6 [22] A claimant has three weeks to make their claim for benefits for a week.Footnote 7 They also have to submit a claimant report for each week they want to receive benefits.Footnote 8 [23] The Appellant said that, when she contacted Service Canada right after she applied for benefits, the Commission agent told her that she didn’t have to submit claimant reports because she had a closed work permit. [24] The Appellant argues that the Commission didn’t consider the Record of Employment, which indicates that she stopped working on December 22, 2022. [25] The Commission told the Appeal Division that the General Division didn’t consider this evidence when it made its decision. It also said that this second Record of Employment affects the outcome of the Appellant’s claim for benefits because it indicates a short period of leave, from December 22, 2022, to January 8, 2023. [26] However, on June 5, 2024, the Commission told the Tribunal’s General Division that its decision was consistent, and it is asking the General Division to dismiss the Appellant’s appeal.Footnote 9 [27] The facts show that the Appellant applied for benefits on December 8, 2022, and that she initially indicated that she had been laid off as of December 2, 2022. She also indicated that the return to work was scheduled for January 16, 2023.Footnote 10 [28] However, on August 17, 2023, the employer issued a second Record of Employment indicating that the Appellant didn’t stop working on December 2, 2022, but rather on December 22, 2022, and that the expected return-to-work date was January 9, 2023.Footnote 11 [29] Since the Commission agent had told the Appellant that she didn’t have to submit her claimant reports, the Appellant didn’t do so. But she didn’t receive benefits, and on February 7, 2023, she tried to submit a claimant report anyway to activate her file. [30] This didn’t work, and she contacted the Commission the next day. [31] The facts show that the Commission believed the Appellant didn’t have to submit a claimant report and that a Commission agent told the Appellant that it wasn’t helpful to do so. The Appellant followed this advice and waited to receive benefits that were never paid. So, it seems more likely than not that the processing of her file would have had a different result if the Commission agent hadn’t told the Appellant not to complete claimant reports. The Commission agrees with this argument. [32] The Commission can’t fault the Appellant for not submitting her claimant report if it told her that it didn’t expect her to do so. [33] However, it appears that errors were made because the information was simply missing from the record. The Appellant also refused to contact the Commission and/or the Tribunal orally to clarify this situation. [34] The facts show that it wasn’t until August 17, 2023, that the employer issued an amended Record of Employment showing periods off work and of return to work that were different from what had been sent to the Commission on December 6, 2022. The employer should have submitted the amended Record of Employment on the actual date of the events. However, in analyzing this file, I note that the employer was late in sending the Commission a Record of Employment with the correct information. [35] So, I understand that the Appellant stopped working on December 22, 2022, rather than December 2, 2022, and that she went back to work on January 9, 2023, rather than January 16, 2023. [36] On this point, given that the Appellant ultimately worked until December 22, 2022, the time limit for submitting her claimant report between December 4, 2022, and December 17, 2022, is incorrect. By trying to file her claimant report on February 7, 2023, the Appellant exceeded the time limit for submitting her first claimant report by a few days. [37] I find that a reasonable person would have acted the same way in similar circumstances: The Appellant followed the Commission agent’s advice and didn’t submit her claimant report. In addition, the Commission’s decision concerns the period from December 4, 2022, to December 17, 2022, and the Appellant isn’t claiming benefits for that period, since she worked until December 22, 2022. The Appellant is only claiming benefits for a short period because she started working again on January 9, 2023. [38] So, despite the communication difficulties in this file, I accept the Appellant’s explanations. Because of the special circumstances of her case, the Commission felt that the Appellant didn’t have to submit a claimant report. It was reasonable for the Appellant to follow this advice from the authority responsible for paying her benefits. [39] I find that the Appellant acted as a reasonable person would have acted in similar circumstances. [40] The Appellant’s explanations are reasonable, and I find that she has shown good cause for the delay in submitting her first claimant report. Analysis Reasonable and customary efforts to find a job [41] The law sets out criteria for me to consider when deciding whether the Appellant’s efforts are reasonable and customary.Footnote 12 I have to look at whether her efforts are sustained and whether they are directed toward finding a suitable job. In other words, the Appellant has to have kept trying to find a suitable job. [42] I also have to consider the Appellant’s efforts to find a job. The Regulations list nine job‑search activities I have to consider:Footnote 13 assessing employment opportunities preparing a résumé or cover letter registering for job‑search tools or with online job banks or employment agencies contacting employers who may be hiring applying for jobs [43] The Commission says that the General Division didn’t consider a recent Federal Court of Appeal decision or that a reasonable period can be allowed to find a job when a recall date is scheduled. It says that, on top of that, the layoff period was ultimately shorter than expected. [44] Contrary to its arguments before the Tribunal’s Appeal Division, on June 5, 2024, the Commission submitted additional arguments and is now asking the General Division to uphold its decision, as it did initially before the General Division on September 1, 2023. The Commission’s position differs depending on which Tribunal division it is addressing. [45] The record shows that the Appellant was laid off for a short period, from December 22, 2022, to January 9, 2023. [46] Of course, generally, waiting to be recalled by your employer doesn’t constitute a valid effort to prove your availability under the Act. But, in this case, there was a short three-week window for the period of unemployment. During that period, the business was closed, and the Appellant could not work. Since she has a restricted work permit, it is more likely than not that efforts to change her work permit for such a short period would have been unsuccessful. [47] The facts also show that, when she applied for benefits, the Appellant indicated that she stopped working on December 2, 2022. However, as mentioned in the previous section, a second Record of Employment issued by the employer instead indicates that her last day of work was December 22, 2022. [48] This meant that the layoff period was shorter than expected and ran from December 22, 2023, to January 8, 2023. [49] Given these circumstances, I rely on CUB72440 in this case. This decision conveys the principle that, given the short period during which the Appellant stopped working, waiting to be recalled by her employer was the best way to find a job. This was a short period and, given the efforts the Appellant would have had to make to change her work permit, it is more likely than not that an employer would not have hired her for such a short period. [50] I find that the Appellant made reasonable and customary efforts to find a job from December 22, 2022, to January 8, 2023. Capable of and available for work [51] Case law sets out three factors for me to consider when determining whether a claimant is capable of and available for work but unable to find a suitable job. The Appellant has to prove the following three things:Footnote 14 She wanted to go back to work as soon as a suitable job was available. She has made efforts to find a suitable job. She didn’t set personal conditions that might have unduly (overly) limited her chances of going back to work. [52] When I consider each of these factors, I have to look at the Appellant’s attitude and conduct.Footnote 15 Wanting to go back to work [53] The Appellant has shown that she wanted to go back to work as soon as a suitable job was available. [54] The Commission argues that, given the short period layoff period, this can be considered the surest way to find a job. [55] In my view, the Appellant wanted to return to the labour market as soon as she stopped working. In fact, the layoff period was supposed to start on December 2, 2022, and end on January 16, 2023, but the Appellant worked until December 22, 2022, and she went back to work on January 9, 2023, shortening the layoff period. [56] So, I am of the view that the Appellant wanted to go back to work as soon as a job was available. I now have to consider whether she made concrete job‑search efforts.Footnote 16 Making efforts to find a suitable job [57] It is the Appellant’s responsibility to actively look for a suitable job so that she can get EI benefits.Footnote 17 [58] The Commission says that the Appellant had a work permit that restricted her to work for only one employer, but that, given the short layoff period, it is possible to allocate a reasonable period to find a job. [59] EI benefits are used to compensate for unemployment when a worker is looking for and intends to find a suitable job. The Appellant has to prove her availability by making job‑search efforts. [60] In this case, I find that CUB72440 applies. Even though a claimant must prove that they made reasonable and customary efforts to find a job and they can’t avoid their responsibilities by claiming that they were waiting to be recalled by their employer, in this case the layoff was short, that is, 17 days. The principle in CUB72440 applies precisely to cases like the Appellant’s. [61] I find that the Appellant expressed her desire to return to the labour market through significant efforts to find a suitable job from December 22, 2022, to January 8, 2023, because waiting to be recalled by her employer during that period was the surest way to go back to work as soon as possible. Unduly limiting chances of going back to work [62] The facts show that the Appellant holds a Moroccan passport. She was issued a work permit to work in Canada for the period from July 2, 2022, to July 1, 2024.Footnote 18 The conditions of that permit include that the Appellant must leave Canada by July 1, 2024, that she can’t work in any job other than that of a sewing machine operator, and that she can work for X. [63] This work permit is restrictive, but this personal condition unduly limits the Appellant to finding a suitable job only if she doesn’t initiate any job‑search efforts and any efforts to get permission to work for another employer when she is laid off. [64] So, restricting her availability to only one employer, not the work permit itself, unduly limits the Appellant’s chances of finding a suitable job. However, based on the facts presented, the Appellant was laid off for a very short period and it would have been futile to take such steps. [65] In this case, since the layoff period was very short, I am of the view that the Appellant’s chances of finding a suitable job weren’t limited by a personal condition because she had assurance of going back to her job a few days after the layoff. So, was the Appellant capable of and available for work? [66] I have to apply the criteria for determining whether the Appellant was available for work within the meaning of the Act and whether she can receive benefits. [67] In this case, I have assessed the Appellant’s attitude, but I have also weighed the circumstances surrounding the layoff, particularly the length of the layoff. [68] I find that in some circumstances, a person laid off for a short period might consider the promise of return to work as the most likely way to get a job.Footnote 19 [69] For this reason, and based on my findings on the three factors, I find that the Appellant has shown that she was capable of and available for work between December 22, 2022, and January 8, 2023. Conclusion [70] This means that the appeal is allowed in part. Footnotes Footnote 1 See section 49 of the Employment Insurance Act (Act). Footnote 2 See section 26 of the Employment Insurance Regulations (Regulations). Footnote 3 See Paquette v Canada (Attorney General), 2006 FCA 309; and section 10(5) of the Act. Footnote 4 See Canada (Attorney General) v Burke, 2012 FCA 139. Footnote 5 See Canada (Attorney General) v Somwaru, 2010 FCA 336; and Canada (Attorney General) v Kaler, 2011 FCA 266. Footnote 6 See Canada (Attorney General) v Somwaru, 2010 FCA 336; and Canada (Attorney General) v Kaler, 2011 FCA 266. Footnote 7 See section 50(4) of the Act and section 26(1) of the Regulations. Footnote 8 Section 49 of the Act. Footnote 9 See RGD4-1. Footnote 10 See also the first Record of Employment to confirm this, at GD3-17. Footnote 11 See RGD4-2. Footnote 12 See section 9.001 of the Regulations; and section 50(8) of the Act. Footnote 13 See section 9.001 of the Regulations. Footnote 14 These three factors appear in Faucher v Canada Employment and Immigration Commission, A-56-96 and A-57-96. This decision paraphrases those three factors for plain language. Footnote 15 Two decisions from case law set out this requirement. Those decisions are Canada (Attorney General) v Whiffen, A-1472-92; and Carpentier v Canada (Attorney General), A-474-97. Footnote 16 Primard, A-683-01. Footnote 17 This principle is explained in Cornelissen-O’Neil, A-652-93; and De Lamirande, 2004 FCA 311. Footnote 18 GD3-17. Footnote 19 This principle is explained in the following decision: CUB72440.