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EI - 'Availability for Work'. Page v. Canada (Attorney General)
In Page v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal heard a JR challenging (and reversing) an EI 'availability for work' ruling of the Appeal Division of the SST which denied eligibility (thus reinstating the General Division ruling of the SST).
In these quotes the court considered the student applicant's 'availability for work' when he was attending school in the day, but had a history of working at nights and attending school in the day [the case is summarized at paras 65-69]:[25] Mr. Page applied for employment insurance benefits shortly following his lay-off. In his application, he indicated that he was not then looking for alternate employment as he expected to be recalled to the Manoir when COVID-related restrictions were eased. He also stated that he was available to work up to 40 hours per week in the evenings and on weekends.
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[27] In March 2021, the Commission verified Mr. Page’s entitlement to benefits pursuant to section 153.161 of the EIA. Following investigation, the Commission concluded that Mr. Page was ineligible for benefits because it determined that he was not available for work, within the meaning of paragraph 18(1)(a) of the EIA, due to his status as a full-time student. This resulted in an overpayment of benefits, requiring Mr. Page to repay the Receiver General of Canada the amount of $9,943.00, the amount of the employment insurance benefits that had been paid to him.
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[49] Despite the deferential nature of reasonableness review, I am of the opinion that the decision of the Appeal Division cannot stand. This is so for two reasons. First, the Appeal Division unreasonably interpreted the applicable precedents, which, contrary to what the Appeal Division stated, do not establish a bright line rule that full-time students are disentitled to employment insurance benefits if they are required to attend classes full time during weekday hours, Monday to Friday. ...
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[50] Turning to the first of the foregoing errors, two of the earliest of the decisions of this Court that the Appeal Division and General Division referred to, namely the decisions in Faucher and Bertrand, were decided approximately 26 and 41 years ago. Neither dealt with the entitlement of students to employment insurance (then called unemployment insurance) benefits. In Faucher, the claimants were found to be entitled to unemployment insurance benefits, whereas in Bertand, the opposite conclusion was reached.
[51] Faucher concerned claimants who started their own roofing business after being laid off from a roofing company. In concluding that they were nonetheless entitled to unemployment insurance benefits, this Court held that the question of availability is a question of fact if what is at issue is the application of the test for availability to a particular fact pattern. The Court also held that, in the absence of a statutory definition, availability “… must be determined by analyzing three factors — the desire to return to the labour market as soon as a suitable job is offered, the expression of that desire through efforts to find a suitable job, and not setting personal conditions that might unduly limit the chances of returning to the labour market” (Faucher at para. 3).
[52] Faucher thus establishes a tripartite test for availability that requires assessment of each of the foregoing factors. This test has been consistently accepted by this Court, by the Social Security Tribunal, and, before the Tribunal’s creation, by umpires who performed a somewhat similar function to the Tribunal under previous iterations of the EIA. Moreover, the tripartite test from Faucher is precisely the test that the General Division applied in the case at bar. Thus, contrary to what the Appeal Division found, the General Division faithfully followed the applicable law.
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[56] Turning more specifically to cases involving students, subsequent decisions from this Court confirm the absence of any rule that would disentitle full-time students in all circumstances from receiving employment insurance benefits if they are unable to work during the majority of the daytime hours because they are scheduled to be in class.
[57] In Landry, Hugessen J.A., who delivered the reasons of this Court, confirmed that there is a rebuttable presumption that full-time students are not available for suitable work within the meaning of what is now paragraph 18(1)(a) of the EIA. The Court also held that determining whether such presumption is rebutted involves a question of fact and that it was incorrect to state that the only way to rebut the presumption was by showing a history of full-time employment while attending classes as a full-time student. Rather, the presumption may be rebutted by proof of what this Court termed “exceptional circumstances”.
[58] The umpire in that case had held as follows:
An extensive and consistent line of authority has long since confirmed that a student taking full-time courses is not available for work within the meaning of the Unemployment Insurance Act. This rule is subject to two exceptions. The first concerns a student sent on a course by the Commission: that is not the claimant's position. The second exception covers a student who over the years has established a record that he held full-time employment while studying: that is not this claimant's position.
[59] This Court found this statement to be inaccurate. Justice Hugessen stated as follows:
This observation on the state of the law is too categorical. While it is true that there is a presumption that a person enrolled in a course of full-time study is generally not available for work within the meaning of the Act, at the same time it has to be admitted that this is a presumption of fact which certainly is not irrebuttable. It can be rebutted by proof of “exceptional circumstances”. The work record mentioned by the Umpire is only one example of such exceptional cases, although in fact it may be the one most frequently encountered. There may certainly be others.
However, having said that, it is still true that availability for work is essentially a question of fact. The applicant was not believed on this question when he stated that he was available because he would have dropped his university courses (for which he had received large subsidies in the form of scholarships and student loans) if he had been offered employment. In those circumstances, despite the error of law, it is clear that the umpire was right to dismiss his appeal.
[60] In Rideout, this Court confirmed that a history of full-time work while attending school as a full-time student could rebut the presumption of unavailability (at para. 3). This Court also underscored that, while delineating the test for availability within the meaning of paragraph 18(1)(a) involves a question of law, its application is a question of mixed fact and law (Rideout at para. 2).
[61] A similar conclusion was reached more recently in Cyrenne, where this Court held that the determination that the claimant had successfully rebutted the presumption of unavailability was a question of fact. In that case, this Court, under the reasonableness standard, upheld the umpire’s refusal to disturb the decision awarding benefits to a claimant based on the assessment that the claimant had established the existence of exceptional circumstances.
[62] In Lamonde, this Court underscored that “… a work history showing that the claimant held regular employment while he was studying may make it possible to rebut the presumption” (at para 12). Notably, in that case, this Court stated that what was required was a past history of regular employment without specifying whether the regular employment had to be full-time employment while attending school on a full-time basis.
[63] In Wang, this Court upheld a decision of an umpire that maintained the decision of a board of referees to afford employment insurance benefits to a claimant, who was a full-time student but who indicated she was looking for full-time work and would cease her studies if she located a full-time job. This Court held that the umpire did not err in declining to interfere with the determination that the claimant had successfully rebutted the presumption of unavailability.
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[65] From the foregoing review of the jurisprudence of this Court, the following principles emerge.
[66] First, the test to determine availability for suitable work within the meaning of paragraph 18(1)(a) of the EIA is as set out in Faucher, which requires consideration of whether a claimant establishes they:. desired to return to the labour market as soon as a suitable job was offered;
. demonstrated that desire through efforts to find a suitable job; and
. did not set personal conditions that might unduly limit the chances of returning to the labour market. [67] Second, there is a rebuttable presumption that claimants attending full-time studies that do not come within the ambit of paragraphs 25(1)(a) or (b) of the EIA are not available for suitable work within the meaning of paragraph 18(1)(a) of the EIA.
[68] Third, this presumption of unavailability may be rebutted by a claimant, and a determination of whether it is so rebutted is a factual one.
[69] Fourth, a contextual analysis is required to ascertain whether the presumption is rebutted. Fact patterns where the presumption has been successfully rebutted include circumstances where the claimant indicated a willingness to give up their studies to accept employment or where a claimant has a history of being regularly employed while attending school and is searching for employment at hours similar to those formerly worked. One can imagine other considerations that might be relevant, such as the ability of a claimant to follow classes online at a time of their choice.
[70] Such considerations under the third factor from Faucher are in conformity with the current statutory and regulatory provisions in the EIA and EI Regulations defining what is meant by suitable work. As noted by the General Division in the case at bar, these definitions define suitability with reference to the position held by a claimant before their job loss. Paragraph 18(1)(a) of the EIA requires a claimant to be available for suitable work. Where there was a previous pattern of regular employment outside of school hours while attending full-time classes, it is not an error of law (or a reviewable factual determination within the meaning of paragraph 58(1)(c) of the DESDA) to conclude that a claimant is available if they are available for employment in accordance with their previous work schedule.
[71] Allowing students to collect employment insurance benefits in circumstances like those of Mr. Page also is consistent with the provisions of the EIA and applicable regulations that require they pay premiums for employment insurance from their part-time wages (EIA, ss. 5, 67, 82).
[72] Before leaving this issue, it is worthwhile to briefly mention the case law of the Social Security Tribunal and umpires. Contrary to what the Appeal Division found in the present case, such case law does not stand for the proposition that full-time students are always disentitled to employment insurance benefits if they are unavailable to work on a full-time basis during daytime hours, Monday to Friday. Several decisions from umpires support the opposite conclusion (see, e.g., Re White, C.U.B. 59766; and Re Crane, C.U.B 59738), as do several decisions from the Social Security Tribunal, itself (e.g., J.D. v. C.E.I.C.; Y.A. v. C.E.I.C.; A.L. v. Canada Employment Insurance Commission, 2021 SST 250 (G.D.); E.M. v. Canada Employment Insurance Commission, 2021 SST 498 (G.D.); B.N. v. Canada Employment Insurance Commission, 2022 SST 69 (G.D.); H.S. v. Canada Employment Insurance Commission, 2022 SST 92 (A.D.); and S.S. v. C.E.I.C.).
[73] While there are cases from the Social Security Tribunal going the other way, many of them were authored by the same Tribunal member who made the decision in Mr. Page’s case (e.g., D.B. v. Canada Employment Insurance Commission, 2019 SST 1277 (A.D.); Canada Employment Insurance Commission v. G.S., 2020 SST 1076 (A.D.); Canada Employment Insurance Commission v. A.P., 2021 SST 295 (A.D.); and M.T. v. Canada Employment Insurance Commission, 2022 SST 646 (A.D.)).
[74] Based on the foregoing, I find that it was unreasonable for the Appeal Division in the present case to have concluded that “… it is well-established case law that availability must be shown during regular hours for every working day and cannot be restricted to irregular hours resulting from a course schedule that significantly limits availability” (A.D. decision at para. 30). To the contrary, the case law stands for entirely different propositions and mandates a nuanced and contextualized consideration of claimants’ circumstances. Moreover, it is entirely consistent with the case law of this Court to find a student in Mr. Page’s situation to be entitled to employment insurance benefits.
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